Hopeless Case v Early Evidence

Ever had a hopeless case? The Claimant leaves the lift at the hotel with her daughter and slips on the wet floor bashing her head, momentarily losing consciousness. A cleaner is first on the scene. The offending mop and bucket is off to one side. A doctor is called, the Claimant is aware of water seeping into her clothes. Both she and her daughters are certain that there is no visible warning sign anywhere in the vicinity. The hotel procedures stipulate that when the floor is cleaned, a warning sign must be used. According to the Claimant, both the doctor and hotel manageress agreed with her that there was no warning sign visible.

In normal cases, this would be a case to settle and settle quickly. The twist in Sandra Williams v Balkan Holidays Ltd was that five hotel employees went to the accident site, all of whom confirmed that a sign was present and clearly visible from the lift and each prepared short statements within months of the accident confirming this. The two manageresses who attended to the Claimant denied that they agreed that there was no sign visible. A short statement was also obtained from the Doctor who claimed he was only concerned with the Claimant’s welfare and could not say whether there was a sign or not. There was also an incident report prepared the day after the accident and signed by the Claimant’s daughter that made no reference to the alleged absent warning sign.

The trial logistics proved to be a challenge. In snowbound England, even getting to Cardiff County Court was not easy. There was then a video conference link from Bulgaria on a Skype platform bridged to ISDN to contend with as well as an interpreter at Court. Thankfully all the links of the chain held together. Three of the five hotel witnesses gave live evidence as to the location of the sign. There was also evidence from the local representative as to an unpleasant argument that developed between her and the Claimant’s daughter after the accident.

In assessing the evidence, the judge preferred the clear recollection of the hotel witnesses that a sign was present, placing considerable emphasis on the statement prepared shortly after the accident. The best the Claimant and her daughter could say is that they didn’t see a sign. Their primary concern was however for the Claimant’s well being. The Claimant was also dazed and confused. After finding for Balkan Holidays on the facts, the judge then went on to criticise the absence of local standards evidence. He took the view that the Claimant could not rely on the hotel’s procedures as evidence of the local standards as the hotel may have adopted a system in excess of local law. He therefore took the view that there was no basis upon which he could find for the Claimant in any event. The claim was therefore dismissed with costs.

The case highlights the benefits of early investigation. Had the initial statements not been obtained, on issue of proceeding some two years post accident it would be very difficult to identify the staff who attended to the Claimant and any recollections at that time would have been treated with a good deal of caution. The result could well have been very different. There was of course still the Holden v First Choice local standards point. If however the judge found for the Claimant on the facts, it would have been a hard sell to convince him that he ought to dismiss the case for want of local standards evidence. The hotels cleaning procedure would probably have been given greater prominence in these circumstances. There is therefore still considerable risk in running a case purely on a Holden point.

For further information please contact Robin Adams at robin.adams@mb-law.co.uk

Please note this information is for general guidance only and is not intended to be a substitute for specific legal advice.