Dawkins v Carnival Plc (t/a P & O Cruises)

Where a claimant slips on a hazard in premises under the defendant’s management, the circumstances may establish a prima facie case of negligence. The legal burden remains on the claimant throughout, but the defendant may bear an evidential burden to show that the accident did not result from want of care.

Evidence that a suitable inspection system usually existed does not necessarily displace the prima facie case. The court must consider whether the system was being implemented when the accident occurred. If the hazard arose so shortly before the accident that reasonable remedial action was impossible, liability will not follow.

A passenger slipped on water in a busy restaurant aboard the respondents’ cruise ship. Her claim was governed by the Athens Convention on Carriage of Passengers and their Luggage by Sea (1974), incorporated into domestic law by section 183 of the Merchant Shipping Act 1995.

The Recorder found that the respondents operated a proper safety system and dismissed the claim, although none of the many staff said to be present gave evidence about its implementation at the relevant time. The passenger appealed from Southampton County Court. The central issue was whether evidence of the usual system displaced the prima facie inference of negligence arising from the unexplained presence of water on the floor.

1. Appeal allowed unanimously. The claimant retained the burden of proving on the balance of probabilities that the accident had been caused by the respondents’ negligence. Article 3(3) of the Athens Convention on Carriage of Passengers and their Luggage by Sea (1974) placed that burden upon her. An evidential burden arising during the case did not transfer the ultimate legal burden.

2. A hazard on a floor managed by the defendant may establish a prima facie case of negligence. Its strength depends upon all the circumstances. Here, the accident occurred in a busy drinks area which was under the respondents’ close control and required frequent observation. The presence of water was therefore more consistent with fault than with an absence of fault: paras 23–26.

3. The court then had to decide whether the prima facie case was displaced by the evidence as a whole. The existence of a generally adequate inspection and observation system did not, without more, justify an inference that the system was operating effectively at the material time. None of the numerous staff said to have been present gave evidence about its implementation. The Recorder was consequently not entitled to infer that the spillage had occurred only seconds, or a very short time, before the accident: para 28.

4. A carrier would not be liable if the spillage and accident were so nearly contemporaneous that reasonable remedial action could not have been taken. There was, however, no evidence of such contemporaneity. In the absence of contrary evidence, the proper conclusion was that the water had remained on the floor longer than the very brief period which would have excused inaction in a place requiring close observation: paras 27 and 29.

5. The claim therefore succeeded. The case was remitted to the County Court for assessment of damages. It was unnecessary to direct that the assessment be heard by a different judge: para 30.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously and the claim was remitted to the County Court for assessment of damages: [2011] EWCA Civ 1237.

2. Southampton County Court: On 3 December 2010, Recorder Wright dismissed the passenger’s personal injury claim after finding that the respondents had established a proper safety system and had discharged their evidential burden.