In 2006, while walking through a popular restaurant on the cruise ship Oriana operated by the respondents, the appellant fell and suffered soft tissue injuries to both knees and wrists. The ship was in international waters at the time. When she slipped, the appellant was passing a drinks dispensing station. Staff were soon assisting her. Yet no evidence was given by any member of staff present in the restaurant on the day of the accident. There had only been two accidents there in six years. The parties accepted that the personal injury claim was governed by the Athens Convention 1974 (the Convention). This was 'international carriage' of a passenger pursuant to a contract of carriage within the Convention. Article 3.1 of the Convention provides:

The carrier shall be liable for the damage suffered as a result of the death of or personal injury to a passenger and the loss of or damage to luggage if the incident which caused the damage so suffered occurred in the course of the carriage and was due to the fault or neglect of the carrier or of his servants or agents acting within the scope of their employment.

Article 3.3, having dealt with situations not relevant to the present case, provides '[i]n all other cases the burden of proving fault or neglect shall lie with the claimant'.

The appellant's claim was dismissed at first instance, where the Judge found that the appellant slipped on some liquid on the floor. The respondents adduced evidence of their inspection system. There was an informal daily inspection of food and beverage areas including 'walking the floor monitoring cleaning and cleanliness generally' and 'spillages are inevitable but would be picked up almost instantaneously'. The Judge found that there was a prima facie case against the respondents which imposed an evidential burden on them. The Judge stated:

The fact that in the ordinary course of things an accident such as this would not normally happen clearly raises the suggestion that the accident arose from want of care by the [respondents]. It will be for the [respondents] to discharge an evidential burden to the effect that the accident did not happen through want of care on their part. In effect it is for the [respondents] to show that the accident was not the result of any failure by them.

The Judge inferred, first, that the safety/inspection system operated by the respondents was operating effectively at the time of the accident and, secondly, that, since the system was operating effectively, the water could not have been on the floor for a significant time. The Judge concluded that the respondents did not fail in their duty, and that they 'discharged insofar as it is possible to do so their evidential burden of showing no lack of care'.

The appellant appealed. Citing Turner v Arding & Hobbs Ltd [1949] 2 All ER 911 (KB) (Turner) 912 and Ward v Tesco Stores Ltd [1976] 1 WLR 810 (CA) (Ward), the appellant argued that the issue was whether the respondents had established that they took all reasonable care on the day of the accident. It was not enough to show that there was a reasonable system; the respondents had to show that it was properly implemented at the time.

The respondents accepted that a high standard of care, by way of observation and prompt action, would be required in this part of the ship in relation to the condition of the floor.

The respondents argued that the appellant bore the burden of proof 'that the accident was caused by negligence' on the part of the respondents, and '[t]he formal burden of proof does not shift': Henderson v Henry E Jenkins [1970] AC 282 (HL) 301D. As for evidential burdens, the respondents relied on the following passage in AT Denning, 'Presumptions and Burdens' (1945) 61 LQR 379:

The party on whom it rests must call evidence or take the consequences, which might not necessarily be adverse: for the place where the burden eventually comes to rest does not necessarily decide the issue: because at the end of the case the Court has to decide as a matter of fact whether the inference should be drawn or not. These presumptions and burdens are therefore provisional only. It is a mistake to raise these provisional presumptions into propositions having the force of law. They are recognised by the law but their force depends on ordinary good sense rather than on law.

Held: Appeal allowed.

The claim succeeds on the evidence. The case is remitted to the County Court for assessment of damages. The absence of evidence from members of staff claimed to be present in the restaurant at the material time is a significant omission. Without evidence from staff claimed to be implementing the safety system, the judge below was not entitled to infer from the existence of a system that the spillage which led to the fall occurred only a few seconds, or a very short time, before the accident.

When an accident occurs because the floor is covered with spillage, the respondents must provide an explanation showing 'that the accident did not arise from any want of care on their part': Ward 814. Without such explanation, judgment may be given for the appellant: ibid. This burden of proof on the respondents is 'evidential, not probative': ibid. Prior to that, it is for the appellant (Ward 815–816) 'to show that there has occurred an event which is unusual and which, in the absence of explanation, is more consistent with fault on the part of the [respondents] than the absence of fault'.

The respondents are not liable (Ward 816):

if they could show that the accident must have happened, or even on the balance of probability would have been likely to have happened, even if there had been an existence of proper and adequate system, in relation to the circumstances, to provide for the safety of customers.

If the respondents wish to show as such (Ward 816):  

it is for them to show that, on balance of probability, either by evidence or by inference from the evidence that is given or is not given, this accident would have been at least equally likely to have happened despite a proper system designed to give reasonable protection to customers.

See also Turner 912.

The burden of proof is upon the appellant, who must show on a balance of probabilities that the accident was caused by negligence on the part of the respondents. Where premises are under the management of respondents and a hazard is present on the floor, there may be a prima facie case of negligence against the respondents. The strength of the case will depend on all the circumstances. In the present circumstances, there was a prima facie case. The issue is whether, on the evidence, that case was displaced.

The respondents argued that by calling evidence of a usually good system of inspection, it was displaced. The Court disagreed. The presence of the liquid was more consistent with fault on the part of the respondents than with its absence. The area was under their close control. If remedial action could not reasonably be taken during the time gap between the spillage and the accident, the claim would fail. The question is whether the respondents could demonstrate such contemporaneity between spillage and accident. There is nothing to suggest such closeness in time between the spillage and the accident.

There was an evidential burden upon the respondents to show how long the water had been on the floor. It can be inferred that it was a passenger rather than a member of staff who was responsible for the spillage. If, through another passenger's lack of care, it had been there only for a very short time, the respondents may escape liability. But if it had been there for a significant period of time, they were negligent in failing to have taken remedial action.

The respondents accepted that the area needed to be kept under close observation due to the likelihood of spillages. There was evidence of the existence of a safety system, including inspection and observation. But there was no evidence from those with the duty to implement the system at or around the time of the accident. And there was no evidence as to how long the liquid had been on the floor. The only witness evidence on this was from another passenger: the liquid was not on the floor sometime 'from 10 minutes to 30 minutes before the accident'. Due to the absence of evidence, the water was probably there for more than the very brief period which would have excused the respondents from taking remedial action before the accident.