PROVING THINGS 105: BURDEN ON CLAIMANT TO PROVE A DEFECT: THE DIFFICULT TASK OF APPEALING FINDINGS OF FACT ON APPEAL
I am grateful to Matthew Snarr for sending me a copy of the judgment, given yesterday, in Bond -v- Tom Croft (Bolton) Ltd [2018] EWHC 1290 QB. It contains an important observation about the burden of proof in establishing that a defect existed in work equipment. It also highlights the difficulties in appealing findings of fact. A copy of the full judgment is available here.Bond v Croft – 24 May 2018
“in my judgment, there was, and is, a legal and evidential burden upon the Claimant to produce evidence to show that there was a hidden defect in the left stile. This is not a case of “res ipsa loquitur” and the Claimant could not rely on an assumption that there was such a defect”
THE CASE
The claimant fell off an A -framed ladder whilst at work. His case that the fall was due to a defect in a stile to the ladder. The defendant’s case was that he overbalanced. The trial judge found for the defendant and that there was no defect. The claimant appealed.
THE JUDGMENT ON APPEAL*
Morris J reviewed the evidence before the trial judge in detail:
“Analysis
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The issues on this appeal are as follows:Was there a burden upon the Claimant to adduce evidence/proof that there was a pre-existing defect in the left stile or rather was the burden of proof upon the Defendant to prove that the failure of the stile was caused by the Claimant’s conduct and in particular by overreaching?
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If there was a burden upon the Claimant to prove that there was a pre-existing defect did the Claimant discharge that duty?
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If the burden was upon the Defendant to prove that the failure was caused by the Claimant’s conduct, was the judge right to conclude on the facts that the Claimant had caused the failure of the stile by overreaching or alternatively by shuffling? Was the judge’s finding of fact to the effect that the failure of the stile was caused by overreaching or alternatively by shuffling one which he was not entitled to reach upon the evidence?
The approach on appeal
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This appeal from a final judgment in the County Court is governed by the provisions of CPR 52.21. The question for this Court is whether the decision below was wrong. It is an appeal by way of review, and not a full hearing. Nevertheless that review encompasses review of findings of fact as well as findings of law. On such review, this court will be reluctant to interfere with findings of fact, and in particular findings of primary fact based on oral witness evidence. However the court will be prepared to conclude that findings are wrong, particularly where based on inference or where there is an absence of evidence to support them. See in particular CPR 52.21 (1), (3) (a) and (4) and The White Book Service 2018 vol 1 at paras, 52.21.2 and 52.21.5.
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Where the decision of the judge is based on preferring the evidence of one expert rather than another, the appeal court similarly shows deference to the judge’s determination since the judge has had the advantage of seeing and hearing the experts give evidence: Wilsher v Essex Health Authority [1988] AC 1074 per Lord Bridge at 1091G-H.
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Some findings of primary fact will be the result of direct evidence, whereas others will depend upon inference from the direct evidence of such facts. The weight to be attached to the findings of the trial judge will depend upon the extent to which he or she has an advantage over the appellate court. The greater that advantage the more reluctant the appellate court should be to interfere. Some conclusions of fact are however not conclusions of primary fact. They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and the appellate court should approach them in a similar way. That means that the appellate court ought not to interfere unless it is satisfied that the judge’s conclusion lay outside the bounds within which reasonable disagreement was possible. The trial judge is entitled to “a margin of appreciation”. See Assicurazioni Generali SpA v Arab Insurance Group [2003] 1 WLR 577 per Clarke LJ at at §§14-17 and per Ward LJ at §§193 to 197.
The facts
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The following facts were undisputed or found by the judge:
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There was no evidence of any manufacturing or materials defect in the ladder.
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Prior to use by the Claimant, both the Claimant himself and Mr Bartley considered that the ladder appeared in good condition with no signs of wear and tear.
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The Claimant had used the same ladder without incident earlier that day and on previous days
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The ladder complied with EN-131
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Features of disrepair were not relevant to the cause of the failing of the left stile.
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The ladder was designed to support a maximum load of 150kg and should have been able to withstand the weight of the Claimant.
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The point of failure of the left stile corresponded to a hole through the leg where a cross bearer was located.
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Failure of a single leg is usually indicative of overloading at the time of use or a pre-existing weakness at the point of failure.
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There were no eyewitnesses to the accident.
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There were no scratch marks found on the concrete floor. It was unclear whether anyone looked for such marks.
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(1) Regulation 5 and the burden of proof
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The 1998 Regulations provide, inter alia, as follows:
“4 Suitability of work equipment
(1) Every employer shall ensure that work equipment is so constructively adapted as to be suitable for the purpose for which it is used or provided.…
…
(4) in this regulation “suitable” –
(a) subject to sub- paragraph (b), means suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person;…”
5 Maintenance
(1) Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair.
(2) Every employer shall ensure that where any machinery has a maintenance log, the log is kept up-to-date.”
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I have been referred to a number of authorities relevant to the nature of the obligation arising under Regulation 5, and in particular, it is said, to the issue of the burden of proof: Galashiels Gas Co-Limited v Millar, supra, at 282-283 per Lord Morton of Henryton and at 287 per Lord MacDermott (a case under s.22(1) Factories Act 1937); Stark v Post Office, supra, (a case under the predecessor regulation to the Regulation 5); Hall v Jakto, supra, (a Regulation 5 case); Ball v Street [2005] EWCA Civ 76 (a Regulation 5 case); Hide v The Steeplechase Company Limited, supra, especially at §§23, 25 (a case under regulation 4 of the 1998 Regulations) . The principles to be derived from these authorities can be summarised as follows:
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The obligation in Regulation 5 to maintain equipment in an efficient state etc is a strict (or absolute) obligation placed upon the employer; there is no burden upon the employee to show negligence on the part of the employer: see Stark, citing Galashiels.
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However the mere failure of equipment does not establish a breach of that absolute obligation. The obligation does not give rise to liability, simply on the basis of “res ipsa loquitur”.
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Where the cause of the failure lies in a choice between an existing defect in the equipment and “operator error” (i.e. misuse by the employee), there is a burden on the employee to establish, on a balance of probabilities, the existence of a defect in the equipment: see Hall v Jakto, per Smith LJ at§3 and per Pill LJ at§48.
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The conclusion in (3) above is supported by a proper analysis on a careful reading of the facts and reasoning in both Stark and Galashiels. In Stark the decision was based expressly on the fact that the bicycle brake had a pre-existing (albeit hidden) defect.
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Once that burden has been discharged then strict liability is imposed, regardless of whether or not the defect could have been discovered by the employer.
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The burden upon the employer (referred to in Hide at §25), under the different provisions of Regulation 4 (suitability of work equipment) to show that the accident was due to unforeseeable circumstances beyond his control or to exceptional events the consequences of which could not be avoided in spite of the exercise of all due care on his part does not affect the foregoing conclusions: first, because even under Regulation 4 there is a burden upon the employee to show that the equipment is or may be unsuitable and, secondly, because there is no provision in Regulation 5 equivalent to the provision relating to reasonable foreseeability contained within Regulation 4(4).
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Accordingly, in my judgment, there was, and is, a legal and evidential burden upon the Claimant to produce evidence to show that there was a hidden defect in the left stile. This is not a case of “res ipsa loquitur” and the Claimant could not rely on an assumption that there was such a defect. Further, there is no evidence that the judge positively misdirected himself on the burden of proof or indeed that it played a part in his conclusions. If anything, at paragraph 47 (and footnote 18) of the judgment, the judge appeared to adopt an approach which favoured the Claimant, suggesting he stood “in a strong position”. In any event, he certainly did not expressly require the Claimant to discharge a burden or suggest other than that it was for the Defendant to show that the ladder had been misused by the Claimant. Then if he did, in so far as this appeal is based on a misdirection as to the burden of proof, it fails.
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Strictly, in the light of this conclusion, the next question is whether the Claimant discharged his burden of proving the pre-existing defect. The further, and third, question is whether, if I am wrong in this conclusion, the Defendant has discharged the burden upon it to show that the stile failed as a result of use by the Claimant at the time of the accident. In either event, the underlying question is whether the judge was right to conclude, on the evidence, that the stile failed as a consequence of overreaching or shuffling. I address this underlying question on the basis most favourable to the Claimant (and contrary to my above conclusion), namely that the burden of proof was upon the Defendant.
(2) The judge’s findings on the cause of the accident
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By way of preliminary, as regards the criticism of the judge for concentrating upon the suitability and risk assessment issues, there is no appeal in relation to the judge’s findings on that issue. In any event, I do not accept the Claimant’s submission (paragraph 39 above). Whilst it is the case, that at paragraphs 43 and 47 of the judgment, the judge took the view that the main issue had centred upon the defendant’s risk assessment and whilst he went on to consider that issue and the issue of the method statement, it is clear that his conclusion on that issue was subject to the issue of whether the ladder itself was in fact defective. This is clear both from the words of paragraph 47 itself and from the use of the word “accordingly” at the beginning of paragraph 43 and the view that he had reached at the end of paragraph 42 that there was no pre-existing weakness in the ladder.
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Secondly, there is no appeal in respect of the judge’s finding (paragraphs 11, 52 and 53) that the Claimant’s own evidence was undermined by his failure to be able to recall his use of the ladder on the day in question. The judge found that the Claimant’s evidence, through no fault of his own, was not reliable (and indeed expressed his admiration for the way in which the Claimant gave his evidence). This court, as did the judge, has considerable sympathy for the Claimant’s position. However the fact remains that there was no direct evidence as to the use of the ladder by the Claimant and the judge was unable to accept the Claimant’s account of events. This is important when it comes to considering the evidence of Mr McFeeley.
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Thirdly, the judge made clear findings on the facts (1) that the ladder did not have a pre-existing defect (whether by way of manufacturing or by way of prior use) and (2) that the probable cause (on the balance of probabilities) was that the left stile had failed as a result of the Claimant overreaching over the side of the ladder and thereby imposing a lateral force.
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Fourthly, in reaching those conclusions, the judge preferred the evidence of Mr Botham over that of Mr McFeeley (paragraph 54 (g)(iv)). The question is whether this Court should interfere with that conclusion, particularly in circumstances where the judge had the benefit of hearing and seeing the two experts, at some length. I consider the evidence of the two experts in turn.
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As regards Mr McFeeley’s evidence [the expert witness for the claimant], first, paragraph 4.1 of the Joint Statement records his position in relation to areas of disagreement. By contrast with Mr Botham’s consistent position recorded in paragraph 4.2, Mr McFeeley did not repeat, or expressly maintain his earlier opinion in paragraph 7.5 of his report that there was a pre-existing weakness. That he did not do so was expressly remarked upon by the judge at paragraph 40. His use of the words “Although” and “originally” in footnote 15 indicated that the judge considered this to be a change of position (see paragraph 30 above). Secondly, Mr McFeeley’s opinion that the ladder had some unidentified pre-existing defect was substantially weakened in cross-examination. He accepted it was his own “supposition”; most significantly it was expressly and solely based on the Claimant’s own description of the accident (as indeed was paragraph 7.5 of his report): see paragraphs 11 and 12 above. Otherwise he could not say whether it was more likely or not that the overloading happened before or at the time of the accident. However the judge rejected the Claimant’s evidence of the usage of the ladder as being unreliable. Thus, the underlying basis of Mr McFeeley’s opinion was fundamentally undermined. In these circumstances, in my judgment, the judge was entitled not to accept Mr McFeeley’s initial evidence that there was a pre-existing defect.
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As regards Mr Botham’s evidence [expert for the defendant], from his initial report through to his oral evidence, he consistently maintained his opinion that it was probable (and not just possible) that the failure was caused by the manner in which the Claimant had used the ladder: see paragraphs 15 to 17 and 23 above. He also explained to the judge the significance of the effect of dynamic forces creating substantial loads.
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The high-water mark of the Claimant’s case on this appeal is Mr Botham’s specific answer to one question that he could only say that overreaching was “a possibility” (paragraph 22 above). In my judgment, that answer does not afford any basis for allowing this appeal. First, the answer was offered to the judge in response to a specific question asking for examples. Secondly, that answer does not undermine the rest of his evidence, consistently given, and reaffirmed, that misuse by the Claimant was the “probable” cause of the ladder failing. Thirdly, considering all his evidence, the judge himself concluded that Mr Botham had stood by his initial conclusion and “came to the clear conclusion that on any balance of probability, this stile failure came about due to sideways loading…” (paragraph 39). I do not consider that the single answer referring to a “possibility” is such as to undermine the cogency of the judge’s conclusion as to the overall tenor of Mr Botham’s evidence. Mr Willem QC suggests that Mr Botham implicitly agreed that by adopting the word “pogoing” (see paragraph 19 above) was such as to cast ridicule on the theory of “shuffling”. There is no basis for that implication or that Mr Botham was agreeing to the use of that term for any reason other than it was a convenient shorthand for what he was considering by way of “shuffling”.
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As to the absence of mathematical calculations to support Mr Botham’s opinion, first neither expert was asked in evidence to comment on the relevance of such an absence, nor to provide any such calculations. Secondly, Mr McFeeley accepted that Mr Botham’s explanation was, at least, a logical conclusion. Thirdly, in so far as the Claimant relies upon Mr McFeeley’s response in re-examination that he could not conceive how a force of 900 Newtons could have been imposed on the failed foot, it is important to note that the question posed was predicated on the assumption that the Claimant was “carrying out his tasks”: see paragraph 14 above. In so far as this is a reference to working normally on the ladder, Mr McFeeley’s evidence takes the matter no further. In so far as the question was intended to extend to “abnormal” working, then Mr McFeeley’s short answer contradicts his evidence throughout that failure by overreaching was possible and logical, even if he thought, based on the Claimant’s account of events, that pre-existing overloading was the most likely cause. Finally, Mr Botham did address the point in his evidence (paragraphs 21 and 22 above), as did the judge at paragraph 54(g)(ii) of the judgment.
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In these circumstances, I conclude that the judge was entitled to prefer the evidence of Mr. Botham.
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Finally, and importantly, it is clear that the judge reached his own conclusion, and did not simply adopt the evidence and conclusions of Mr Botham. The evidence of Mr Botham is one only of four reasons given at paragraph 54 (g) for rejecting the case that the stile simply failed in the course of normal working. The first three reasons given are cogent and reasons which the judge was entitled to reach. In addition he did not accept the Claimant’s account of the accident. Contrary to Mr Willem’s submission, Mr Botham did not “usurp the function” of the judge. As demonstrated by the approach of the Court of Appeal in Jakto (§§36, 44 and 49) the function of the judge may include preferring (on the balance of probabilities) one of “two possible explanations both of which are very unlikely”. Having made findings on Mr Botham’s evidence, the judge nevertheless went on to make his own decision, preferring the “overreaching” explanation to that of “shuffling” (and thereby implicitly putting “pogoing” aside).
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As to the judge’s reference to his personal experience of having once shuffled a ladder, there is no warrant for the suggestion that this affected the judge’s objective analysis of the evidence. Indeed, it is clear that the judge favoured “over-reaching” as the cause in any event.
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For these reasons, I conclude, first, that, in so far as the judge’s conclusions were based on the evidence of Mr Botham in preference to the evidence of Mr McFeeley, having heard and seen the witnesses he was entitled to reach that preference, and indeed, that was a justified preference. Secondly, and in any event, the judge’s findings at paragraphs 54 (f) and (g) of the judgment were matters of his own judgment, based on all the evidence, including findings of fact and inference. Far from being “outside the bounds within which reasonable disagreement was possible”, those findings are logical and well reasoned.
(F) Conclusion
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In the light of my conclusions at paragraphs 56 and 69 above, I conclude that the decision of the judge dismissing the Claimant’s claim was not wrong. Accordingly, this appeal is dismissed. “
( *For technical reasons the paragraph numbering on this post is not the same as in the judgment.
