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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> AB v Pro-Nation Ltd  EWHC 1022 (QB) (28 April 2016)
Cite as:  EWHC 1022 (QB)
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QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
B e f o r e :
(a protected party by his litigation friend, CD)
Mr Christopher Kennedy QC for the Defendant
Crown Copyright ©
The Claimant's case
The Defendant's case
The circumstances of the accident
The staircase treads
The evidence relating to the day of the accident
"16…Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate."
He later went on:
"19. The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence to one side of the dispute. A desire to assist, or at least not prejudice, the party who called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.
20. Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does or does not say. The statement is made after the witness's memory has been "refreshed" by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to record. The statement may go through several iterations before it is finalised. Then, usually, months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events."
The Duty of Care
The Regulatory Material – Building Regulations
"1.37 Handrailing to external ramped and stepped access will satisfy requirement M1 ... if:(a) The vertical height to the top of the upper handrail from the pitch line of the surface of a ramp, or a flight of steps, is between 900mm and 1000mm, and from the surface of a landing is between 900 and 1100mm (see diagram 5);
(b) Where there is full height structural guarding, the vertical height to the top of a second lower handrail from the pitch line of the surface of a lamp, or a flight of steps, is 600mm, where provided;
(c) It is continuous across the flights and landings of ramped or stepped access;
(d) It extends at least 300mm horizontally beyond the top and bottom of a ramped access, all the top and bottom nosing of a flight or flights of steps, while not projecting into an access route;
(e) It contrasts visually with the background against which it is seen, without being highly reflective;
(f) Its surface is slip resistant and not cold to the touch;
(g) It terminates in a way that reduces the risk of clothing being caught;
(h) Its profile is either circular with a diameter of between 40 and 45mm or oval preferably with a width of 50mm (see diagram 7);
(i) It protrudes no more than 100mm into the surface width of the lamp or stepped access where this would impinge on the stair with requirements of part B1;
(j) There is a clearance of between 60 and 75mm between the handrail and any adjacent wall surface;
(k) There is a clearance of at least 50mm between a cranked support and the underside of the handrail;
(l) Its inner face is located no more than 50mm beyond the surface width of the ramped or stepped access."
The Regulatory Material – British Standard
"In addition to guarding, every stair with two or more rises should have a continuous handrail to provide guidance and support to those using the stair. A suitably designed handrail should prevent users from losing their balance when on the stair, and can also help some users to pull themselves up the stairs. A handrail can also help users to regain their balance in the event of a fall and can reduce the severity of the injuries that might result.
Handrails should be:(a) Fixed securely at a vertical height above the pitch line of not less than 900mm or more than 1000mm;(b) Rigid and strong enough to provide adequate support for users;(c) Comfortable to grip and without sharp arrises, yet able to provide adequate resistance to hand slippage;(d) A poor conductor of heat, if exposure to heat is likely.
Consideration should be given to providing visual contrast between the handrail and its surroundings.
Handrails may form the top part of the guarding, as in a stair balustrade, if the heights of the guarding and the handrail can be matched. In no case should the inside edge of the handrail (the edge nearest the walking line) be more than 50mm outside the edge of the stair clear width.
The handrails should be free from any obstruction throughout a flight and preferably continuous throughout the stair. Handrail supports should not prevent the passage of the hand throughout the length of the handrail. The handrail should not form the top of the guarding if this guarding finishes under the string of an upper flight or landing, as this will cause some steps to be walked without the support of a handrail.
Circular handrails are usually the most comfortable to grasp. A handrail diameter of between 32mm and 50mm is recommended, or of between 40mm and 50mm for the elderly and for people with disabilities. Oval handrails should have a thickness of between 18mm and 37mm horizontally, and of between 32mm and 50mm vertically. In all cases, the handrail should be supported at a distance of between 50mm and 100mm from any guarding which extends above the bottom edge of the handrail, or from any wall, in order to avoid entrapment of the fingers or hand.
To allow users a choice when ascending and descending stairs, it is preferable to have a handrail on both sides. Where it is likely that people will be ascending and descending the stair at the same time, such as on the stairs with a stair clear width of 1000mm or more, it is essential to have a handrail on both sides…"
"Use of a suitably designed handrail can prevent users from losing their balance when on the stair and can also assist users to ascend by pulling themselves up the stairs. A handrail can also help users to regain balance in the event of a fall, reducing the severity of the injuries that might result. The need for a handrail on both sides of the stair comes from two sources. Firstly, to allow users a choice of support when ascending and descending stairs, it is preferable to have a handrail on both sides. This can be essential for people using a walking stick or cane or who might be weaker on one side. The other reason is that having two handrails reduces the chances of a serious incident happening on a stair.
Every stair should have two continuous handrails, one on each side of the stair, to provide guidance and support to those using the stair. It is advantageous to many stair users to be able to reach either handrail or both handrails at the same time in which case, the distance between the handrails should be between 800mm and 1200mm.
Handrails should:(a) Be fixed at a vertical height to the top of the handrail above the pitch line between 900mm and 1000mm;
(b) Continue across intermediate landings at a vertical height to the top of the handrail above the landing between 900mm to 1100mm where this is practicable e.g. not across doorways or obstructing adjacent circulation routes;
(c) Be fixed parallel to the pitch line oversteps, or horizontal over landings;
(d) Be rigid and strong enough to provide adequate support for users;
(e) Be comfortable to grip and without sharp arrises, yet able to provide adequate resistance to hand slippage;
(f) Allow the entire hand to form a grip around the handrail, rather than a less secure pinch grip which uses just the fingers. This requires a clear mounting distance between the bottom of the handrail and the top of the stair balustrade of at least 50mm;
(g) Be continuously graspable along their entire length. Handrail brackets or balusters attached to the bottom surface of the handrails are not considered to be obstructions to a person's grip, provided that they do not project horizontally beyond the sides of the handrail within 50mm of the bottom of the handrail;
(h) Be a poor conductor of heat, if exposure to heat or temperatures below 0(C is likely;
(i) Extend at least 300mm on plan beyond the top and bottom nosing of a flight or flights of steps, providing it does not project into an access route;
(j) Be finished so as to provide visual contrast with the surroundings against which it is seen."
Health and Safety Executive Literature
The Maki report - Efficacy of handrails in preventing stairway falls: a new experimental approach.
Health and Safety Laboratory Literature
Pauls: "Are functional handrails within our reach and grasp?" Southern Building, September/October 199, p.20.
The Staircase, John Templer (published in 1992 according to the index to the bundle of literature)
"Those who have examined the question of the handrail shape have agreed that a circular shape will maximise tangential forces over a wide range of hand sizes and shapes. Several researchers have studied grip force… examining the various types of grip, including the power grip (figure 6.2) and pinch grip (figure 6.3). These studies are not strictly transferable to handrail applications; nevertheless, they provide influential evidence that the power grip is likely to permit a stronger grasp than the pinch grip. The power grip, by definition, brings all of the finger and hand segments into contact with the handrail, which is necessary in order to optimise the effective normal forces. The most thorough and recent study of handrail shape was by Brian Maki (1985)… he concluded that the largest stabilising forces were generated by using 1.5" (3.8cm) circular rails. The smallest forces were generated using the vertical rectangular and the decorative rails… For grip and sliding comfort, based on the preference, the circular and overall handrails had the best ratings; narrow rectangular and decorative railings had the worst. Handrail shape also must be considered for uses that are not of the grip pull–up or push–down kind. There are times, probably during falls or where a loss of balance has occurred, when one may have to push away from the handrail or pull oneself toward it. By definition, these are normal forces, and, in the former case, the force is usually transmitted through the surface of the hand with no gripping. To minimise tissue damage or discomfort, the load should be spread over as much of the hand as possible. Handrails with elaborate mouldings may act to concentrate on forces on an edge of a decorative element and for this reason are undesirable. Ideally then a handrail that will meet the condition best will present a large surface area. When one has to pull oneself towards the handrail, perhaps to prevent a sideways fall in the opposite direction, the pull is transmitted largely through the hand with fingers locked across the rail and protruding down on its far side. The handrail shape to optimise this action is the same as that for the push–pull action except that we are largely concerned with the shape on the outside of the rail. Therefore, the shape must maximise the number of finger joints contributing to the pulling force. Obviously tissue damage or decreased performance will be present also if we must pull against some sharp–edged ornamental moulding. Certain shapes and sizes may force the wrist away from an optimal position to grip the rail. This is particularly important for the elderly, who may have a reduced range of joint rotation and loss of strength. Maki and Fernie have pointed out: 'the line of action of the push/pull force should coincide with the natural thrust access of the forearm, i.e. a line passing from the lateral edge of the elbow to the top of the extended index finger. Handrail shapes and sizes that require wrist extension or flexion (away from the optimal position) to achieve a comfortable (i.e. conformable) gripping position will shift this line of action, resulting in a bending movement about the wrist. This movement must be resisted by the wrist musculature, which may limit the amount of handrail force that can be generated. A handrail with a wide, flat upper surface would seem to create this sort of problem (e.g. oblong with major axis horizontal) and should therefore be avoided'."
Feeney and Webber: Safety Aspects of Handrail Design: A Review
"Guidance which can be provided with confidence is:(a) The handrail height should be between 935 mm and 1000 mm above the pitch line for adults.
(b) The shape should be circular and of 32 to 50mm diameter, or oval with a thickness of 18 to 37mm horizontally and 32 to 50mm vertically.
(c) The handrail should be of varnished hardwood, enamel paint on metal or vinyl or Doverite-covered steel.
The following guidance is suggested but should be validated:
(d) The clearance between the handrail and the wall should be between 80 and 92 mm.
(e) The handrail should extend 30 mm beyond the top and bottom of the stairs.
(f) The handrail should be in visual contrast to its surroundings.
(g) A handrail should be provided on both sides of the stairs."
"ease of gripping – the characteristics which enable a handrail, once it has been taken hold of, to be easily and continuously held and afford a secure support for the hand to prevent a fall occurring."
"ease of grasping – the characteristics of a handrail which enable it to be taken hold of and which, in an emergency, assist in arresting a fall."
Understanding and Preventing Falls, Chapter 3: Steps and Stairs – Mike Roys
(a) It is important to have a handrail within reach throughout the whole of a flight of stairs;
(b) The optimal handrail height is between 900mm and 1,000mm
(c) Circular handrails with a diameter of between 32mm and 50mm offer the best combination of size and shape for enabling a strong grasp in normal use.
Breach of duty
(a) On any version of events, this handrail did not comply with the British Standard referred to above. Further, it did not comply with the mode of satisfying the Building Regulations set out in Approved Document M. (For the reasons set out above, I am satisfied that Approved Document M applied to this modification.) Those recommendations and the standard seem to me to reflect a considerable body of literature which favours a circular handrail over other designs.
(b) Dr Lemon conceded in cross examination that the handrail was not ideal.
(c) Dr Lemon conceded in cross-examination that the circular handrail was preferable to the handrail present here, in terms of the grip that could be achieved and its visibility.
(d) Dr Lemon's opinion that a person could nevertheless obtain an adequate grip so as to prevent a fall using the flat piece of wood seems to be based entirely upon his own experimentation. It appears to be contrary to all of the literature referred to above. It is certainly contrary to my attempts to grip the flat piece of wood. I found it difficult to get a firm grip on that, whereas I found it easy with the circular piece of wood. This may reflect a difference in the size or strength of our hands. But it seems to me that I can properly assess his evidence by seeking to reproduce what he asserts. In so doing, I am unpersuaded by his conclusion.
(e) Dr Lemon's opinion that a flat handrail of this design would be easier to grasp in an emergency than a circular handrail seemed to me flawed. He supposed, as I have indicated above, that the alternative handrail would be a recessed circular handrail. If one starts from the assumption that there was to be a low wall of the height of the wall present at the time of the accident, I can see why he made that assumption, since the height of this wall would render any handrail attached on brackets above it too high. However, this seems to me to be a wrong assumption. A designer thinking about a reasonably safe staircase would, having looked at the relevant British Standard, regulations and guidance, conclude that the handrail that should sit above the balustrade, rather as in the manner of the original building drawings. Hence the wall would not have been built so high, allowing the handrail to sit on brackets at an appropriate level above it.
(f) The handrail that was present at the time of the accident was relatively difficult to distinguish visually from the low wall on which it is positioned. Indeed, the user of the staircase might not realise that there was anything to grip more than the squared off top of the balustrade and might not identify that there was a handrail at all. It seems to me that a person using this staircase would be deterred by its lack both of identifiability and visibility from using the handrail, whether simply to run their hands down it whilst descending the stairs or to seek to regain balance in the event of that being necessary.
(g) The modification works here included the construction of a new staircase, as indicated in the plans from the architects. There was nothing to stop the occupiers from building a staircase that complied with the ideal of the British Standard.
(h) It was accepted by Dr Lemon that the installation of a handrail of the kind anticipated in the British Standard and the Building Regulations would not have been expensive – he described it as "a minor cost in the scheme of refurbishment."
(i) It appears from the communication between Manchester City Council and the architect, Mr Haslehurst, that the architect contemplated the installation of a handrail, as in Victoria's, which would have complied with the relevant Standard and Regulations. I can see no evidence to support the conclusion that anyone applied their mind to the issue of the alternative design in fact present at the time of the accident. (Of course, if the layout was inadvertently reasonably safe, the Claimant could not succeed in a case based upon a failure of the occupier to apply its mind to the safety of the premises. Nevertheless, when the Defendant points to the parts of the regulations and standards that indicate that they provide guidance only compliance with which is only one way of achieving a safe staircase, then the fact that there is no evidence of analysis of the layout in fact adopted makes it easier for the Claimant to demonstrate a want of care in the development of the building.)