Piccolo v Larkstock Ltd (t/a Chiltern Flowers & Ors)

Permission to appeal should be refused where the challenged factual findings are unchallenged and the reasons, although brief, are firmly grounded in detailed findings, leaving no realistic prospect of error or inadequacy.

An occupier’s duty under the Occupiers Liability Act requires reasonable care in the circumstances; it does not make the occupier an insurer of the floor. A staged response to a known hazard may satisfy that duty where responsibility lies with a tenant and more drastic or continuous precautions are impracticable. Knowledge that a flower shop or display exists does not, without more, make it negligent for a person using an ordinary route not to look down at their feet.

The claimant slipped on flower petals and water on the concourse of Marylebone Station. The material had come from a flower display operated by Larkstock Ltd, the tenant of shop premises and licensee for the display. Chiltern Railways was the main occupier.

HHJ Altman QC held that Larkstock was negligent, but that Chiltern owed a duty under the Occupiers Liability Act and had not breached it. He also held that the claimant was not contributorily negligent. Larkstock renewed applications for permission to appeal the findings concerning Chiltern’s responsibility and contributory negligence. The central issues were whether either challenge had a realistic prospect of success.

The renewed applications for permission to appeal were refused in both respects.

1. Reasoning and factual findings. The judge’s detailed findings of fact were not challenged. His reasoning on the two disputed issues was brief, but it was firmly based on those findings. There was therefore no realistic prospect that the Court of Appeal would regard the reasoning as inadequate or reach a different conclusion.
2. Chiltern’s duty. The judge was entitled to find that Chiltern had not breached its duty under the Occupiers Liability Act. The duty required reasonable conduct in the circumstances and did not make Chiltern the insurer of the floor. Relevant circumstances included Chiltern’s knowledge of recurring spillages, the responsibility placed on Larkstock to clean them, the warnings and threats of termination given to Larkstock, and Chiltern’s staged approach to enforcement. The judge could reasonably conclude that constant monitoring by Chiltern’s cleaners was impracticable, that coning off the route would restrict public access, and that the measures taken were sufficient and reasonable. Chiltern might have been justified in taking a tougher approach, but that did not make its chosen approach negligent.
3. Contributory negligence. The judge was also entitled to find that the claimant had taken proper care. He was not hurrying, wore sensible shoes, and used a frequently travelled route. There was no evidence that he had previously been aware of the particular hazard. Awareness of the flower shop and display did not require him to look down at his feet. The judge’s reasoning was consistent with the passage cited from Ward v Tesco Stores Ltd [1976] 1 All ER 219.

Order: Applications refused.

• Court of Appeal (Civil Division) — In [2008] EWCA Civ 647, Lady Justice Smith refused Larkstock’s renewed applications for permission to appeal.
• Queen’s Bench Division — HHJ Altman QC, on 17 July 2007, held that Larkstock was negligent, that Chiltern owed a duty under the Occupiers Liability Act but had not breached it, and that the claimant was not contributorily negligent.