Assessment Skeleton Argument Notes

IN THE COUNTY COURT AT LANCHESTER Claim No. LC15 6697

BETWEEN:

MISS SOPHIA DUNCAN Applicant/Claimant

and

MR TIMOTHY MELROSE – HUGHES

T/A FINESHADE ANTIQUES Respondent/Defendant

SKELETON ARGUMENT OF THE RESPONDENT

In this Skeleton argument, “[SD 1]” refers to the witness statement of the Applicant at paragraph 1. Likewise “[TMH 3]” refers to the witness statement of the Respondent at paragraph 3. Page numbers refer to the pages in the bundle of documents.

Introduction:

1. This is the Claimant’s application, under CPR, r.24.2, for summary judgment. The Defendant says that he has a real prospect of successfully defending the claim and there is a compelling reason for trial, within the meaning of r.24.2.

2. Further or alternatively, this is the Claimant’s application, under CPR, r.3.4(2)(a) for a strike out of the defence. The Defendant says that the claim should not be struck out and the judge should make an order under CPR, r.18.1 requiring the Defendant to clarify his defence or to give additional information about it.
   
   The Relevant Facts:
   

3. The Defendant runs and owns Fineshade Antiques (the shop). On 20^th December 2013, the Claimant was visiting the shop, intending to view what she believed to be a rare Clarice Cliff Sunspots vase which the Defendant’s nephew, Mr. Charlie Hughes had mentioned he was expecting that day. On the day in question the Defendant was in Malta [TMH 1] and Mr. Charlie Hughes was in charge of the shop. Mr. Charlie Hughes accidentally spilt some linseed oil on the floor of the shop and specifically in the gangway towards the back of the store. He had then positioned some old paintings where the spillage was, to create a temporary blockade [TMH 4-5].

4. The Claimant, who is a regular customer [TMH 6] entered the shop and was keen to check for herself the base that she believed had arrived that day. Upon her entering the shop, Mr. Charlie Hughes informed her that the rear of the shop was an area that she should not go, and he also called out to warn her when he saw her approaching the area as the paintings were old and because of the dangerous surface [TMH 5].

5. The Claimant, who was keen to acquire the vase at bargain price, particularly in the absence of the Defendant whom she knew was much more experienced in the antiques trade, voluntarily stepped over the old paintings in spite of the barricade and oral warnings from Mr. Charlie Hughes and she slipped on the linseed oil on the floor. This caused her to fall to the floor and injure her face and neck [SD 1].

6. Since that date, the Claimant states that she has experienced ongoing and progressive pain, and she was subsequently diagnosed as suffering from temporomandibular joint dysfunction. The Claimant claims that this is a direct result of the said fall [SD 2].

7. The Defendant says that given the fact that there were barriers in place to prevent people from entering the dangerous area, and that since the Claimant was warned, a duty of care was discharged. The Defendant also says that the Claimant was contributory negligent and she voluntarily accepted the risk.
   
   The Issues:
   

8. Whether under CPR, r.24.2:

   1. The Defendant has a real prospect of successfully defending the claim on the basis that the Claimant’s duty of care was discharged, the Claimant was contributory negligent and the Claimant voluntarily accepted the risk. The Respondent will say that he has a real prospect of success.

   2. There is any other compelling reason why the case or issue should be disposed of at trial, on the basis that the Respondent is unable to contact a material witness who may provide material for a defence, and the case is highly complicated such that judgment should be given only after mature consideration at trial. The Respondent will say that there is.
      

9. Whether under CPR, r3.4(2)(a), the defence discloses no reasonable grounds for defending the claim. The Defendant will say that it discloses.

The Law:

10. Section 2(2) Occupiers’ Liability Act 1957 (OLA 1957) states that the common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

11. Section 2(3)(b) OLA 1957 states that the circumstances relevant for the present purpose include the degree of care, and want of care which would ordinarily be looked for in such a visitor, so that in proper cases an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.

12. Section 2(4)(a) OLA 1957 states that in determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonable safe.

13. Section 2(5) states that the common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor.

14. In the case of Bolton Pharmaceutical Co 100 Ltd v Doncaster Pharmaceuticals Group Ltd and others [2006] EWCA Civ 661, Mummery LJ said “the court should hesitate about making a final decision without trial where, even though there is no obvious conflict of fact at the time of the application, reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case”.

15. In The Carlgrath [1927] P 93 CA Scrutton LJ said “when you invite a person into your house to use the staircase, you do not invite him to slide down the bannisters, you invite him to use...

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