SUMMARY JUDGMENT FOR THE DEFENDANT IN A FATAL ACCIDENT CASE: DODD -V- RAEBARN IN THE COURT OF APPEAL

June 21, 2017 · by · in Appeals, Summary judgment

I am grateful to my colleague Colm Nugent for supplying me with a copy of the judgment in Dodd -v- Raeburn [2017] EWCA Civ 439 *given today the Court of Appeal upheld an order giving summary judgment in a fatal accident case. It is a reminder that it is possible for parties, including defendants, to apply for summary judgment in cases involving personal injury and death.

“The hope that something may turn up in cross-examination of a witness at the trial does not suffice.”

THE CASE

Mr Dodd was seriously injured when he lost his footing on a flight of stairs. He died of those injuries two years later.  His widow brought an action against three tiers of occupiers, the owner of the freehold, the head lease and the underleases of the individual flats in the upper parts of the building.  The action was based on the absence of a handrail. The  first defendant sought, and obtained, summary judgment from the circuit judge.

THE APPEAL

Lord Justice Lewison considered the nature of the duty of care owed.

THE TEST FOR SUMMARY JUDGMENT

The court considered the test relating to summary judgment.

34.Mr Stevens did not suggest that there was any further relevant evidence  which  might be called at trial apart from what might turn up in cross-examination of Raebarn’s witnesses.
35.Mr Stevens reminded us of  Lord Hobhouse’s  observation  in Three Rivers DC  v Bank of England (No 3) [2003] 2 AC 1 at [158] that the criterion  which  must  be  applied  at the stage of summary judgment is “not one of probability; it is absence of reality.” Precisely what that means was amplified by this court  in  ED  &  F  Man  Liquid Products Ltd v Patel [2003] EWCA Civ 472 in which  Potter  Ll said  at [8] that  the party against whom summary judgment is sought  must  have “a case  which  is better than merely  arguable”,  and  as I read his judgment  he said that such a case  must  carry “a  real conviction” .
36. Moreover as Lord Hobhouse himself said in Three Rivers in the same paragraph: “The important  words  are  ‘no  real  prospect  of  succeeding’. It requires  the  judge  to  undertake  an  exercise  of  judgment. He must decide whether to exercise the power to decide the case without a trial and give a summary judgment. It is a ‘discretionary’ power, i.e, one where the choice whether to exercise the power lies within the jurisdiction of the judge. Secondly, he must carry out the necessary exercise of assessing the prospects of success of the relevant party. If he concludes that there is ‘no real prospect’, he may decide the case accordingly …. Whilst it must be remembered that the wood is composed of trees some of which may need to be looked at individually, it is the assessment of the whole that is called for. A measure of analysis may be necessary but the ‘bottom line’ is what ultimately matters.” (Emphasis added)
37. In addition Lord  Hobhouse said at [160]:
“The hope that something may turn up in cross-examination of a witness at the trial does not suffice.”
38. Thus the role of the judge was to conduct an evaluation. An appeal court should be  slow to interfere with an evaluation carried out by a first instance judge. Given the extent of the evidence before the judge, and Mr Stevens’  inability  to  point  to any further evidence that might become available at trial (apart from what might turn up in cross-examination) I consider that the judge was entitled to  conclude  that  the alternative hypothesis that there was a handrail which was subsequently removed was “speculative and fanciful”. He may have slightly overstated the position in saying that there was “simply no evidence” rather than  the  more  nuanced  “no direct  evidence”, but in my judgment that does  not invalidate  his conclusion. The only  evidence  was that subsequent removal could have happened. There  is no evidence  that  it actually did.
39. Let me assume, however, that the judge was wrong in that respect. Would it make any difference if the handrail had been removed at some time after the new staircase was installed? Mr Stevens relied on Hannon v Hillingdon Homes Ltd [2012] EWHC 1437 (QB) in submitting that it would. The property in question in that case was  a  two­ storey house. The ground floor of the house was open plan. The staircase leading from the ground to the first floor had originally been equipped with a handrail and  newel posts and spindles on its open side. The other side of the staircase was a solid wall. At some stage the tenant of the house had, for aesthetic reasons in order to enhance  the open plan aspect of the ground floor, removed the handrail,  newel  post  and spindles  on the open side of the staircase and instead affixed a handrail to the solid wall on the closed side of the staircase. The landlord in that case had an obligation to keep the structure and exterior of the dwelling in repair. One of the issues in the case was  whether the absence of a handrail, newel post and spindles on the open side of the staircase amounted to a “relevant defect” as defined by section 4 (3) of the 1972 Act. HHJ Thornton QC’s reasoning on this topic is extremely    What he said was:
“The evidence shows that the bannisters in question was  removed by the tenant after she had first become a tenant. This removal occurred after the “material time” which is defined in the DPA as being, on the facts of this case, after the time  when the tenancy commenced. Given its integral function, it is self­ evident that the absence of the bannisters was a defect in  the state of the property which was continuing  because  of  the failure or omission of the party responsible for  the repairs  of  the structure to replace it or to insist on its replacement by the tenant.”
40. Judge Thornton does not appear to have considered any of the case  law  on  the question whether there was disrepair such as to trigger  liability  under  the 1972 Act. The test that he appears to have applied is one  of  functionality,  which  is  not  the correct test. Part of  a building may function inadequately  but it does not follow  that  it is in disrepair. It is by no means “self-evident”, to me at least, that  a staircase  which  has been deliberately altered in the way described is out of repair. In Sternbaum, in a passage I have already quoted, Hallett I.J held that the staircase in question could not possibly be said to be in disrepair because the walls and stairs themselves were apparently sound and there was nothing wrong with the floor covering. That is the position   in  our   case      I  do   not  consider   that  Sternbaum   can   be   properly distinguished. If there is no disrepair the questions of compliance with building regulations do not arise.
41. Although I have profound sympathy for Mrs Dodd for her tragic loss, in my judgment Raebarn is not the culprit. I would dismiss  the appeal.”

 

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