PROVING THINGS 235: COURT OF APPEAL OVERTURNS JUDGMENT IN FAVOUR OF DEFENDANT: THE JUDGE’S FINDINGS WERE NOT OPEN TO HIM: THE FACTUAL FINDINGS WERE WRONG

November 7, 2023 · by · in Appeals, Civil evidence, Statements of Case, Witness statements

The Court of Appeal judgment today in Clements-Siddall v Dunbobbin Hotels Ltd [2023] EWCA Civ 1300 is a rare example of the Court of Appeal overturning a judge’s findings on the facts.  It is also an example of the importance of reviewing pleadings, case summaries and documentary evidence in detail.   There is particular guidance on the role of the trial judge whose function is to determine the issues placed before the court by the parties.

“It is exceptional for this Court to allow an appeal on the basis that a judge’s finding on the facts was plainly wrong. This is one of those exceptional cases; and it should not be taken as an encouragement to others to try to appeal where the stringent test for this Court to intervene is not met. Here, on the question of the location of the incident, the judge relied almost exclusively on a contemporaneous note which was manifestly on its terms unreliable. He failed to have regard to the unchallenged evidence of one witness, and dealt inadequately with the evidence of another, Dr Clements. The judge himself considered that he could not accept the evidence of other witnesses as to where the incident occurred. In the circumstances, and exceptionally, there was no logical basis for his finding that the incident occurred on the steps. The only consistent, and in some respects unchallenged, evidence was that the incident occurred on the raised decking, from which Dr Clements fell. There was no rational basis on which the judge could find otherwise.”

THE CASE

The claimant was seriously injured whilst at an outdoor spa pool at the defendant’s hotel.  She was pregnant at the time.  The action was brought by her subsequently born child who brought an action for damages.  The defendant denied negligence.  The action failed at trial. The trial judge found that the accident had happened at a different place to that stated by the claimant.  The claimant appealed that finding.  The appeal was successful.

THE PLEADED CASE

One ground on which the appeal succeeded was that the way the case was pleaded, and the way had it had been prepared for trial, meant that that the location of the accident was not in issue at trial. The Court of Appeal agreed with that finding.    The defendant did not plead a positive case in the defence.

    1. Proceedings were issued on 28 June 2021. The Particulars of Claim set out the Claimant’s case clearly at paragraph 15:
“The Claimant’s mother followed. During the course of retrieving her robe and slippers from the right raised decking area she was caused to slip and fall in the following way;
a. She retrieved the robe and dressed;
b. She began to put on her slippers;
c. As her right foot made contact with the sole of the slipper, her foot slipped forwards uncontrollably;
d. Due to the edge of the raised platform and/or deck and/or steps having no guard her right foot slipped over the edge of the decking.
e. She tried to reach for the handrail to the steps which was too far away;
f. As she fell forwards over the unguarded edge of the right raised decking and down towards the ground level, her pregnancy bump struck the exposed edge of the second step, taking the full impact of the fall.”
    1. In the light of the description in paragraphs 8 to 10 of the Particulars of Claim, which I have set out above, subparagraph (f) could not sensibly be understood to mean that she had fallen anywhere other than from the raised decking to the right of the pool as shown in the photographs.
    1. The particulars of negligence or breach of duty concentrated on the exposed edge of the raised decking to the right of the pool. The main allegation was that there should have been a guard rail protecting the exposed edge, though wide-ranging additional allegations were made: for example it was alleged that the hotel should have provided rubber soled footwear and that there was a failure to instruct Dr Clements in the safe use of the spa pool. Viewed overall, there could be no reasonable doubt about where and how it was being alleged that the accident had happened.
    1. The Defence, which was settled by Leading Counsel, having admitted the layout of the raised decking and the absence of a guardrail for the exposed leading edge, denied that the absence of a guardrail was a breach of duty. Paragraph 9 set out a classic non-admission of the facts alleged in paragraph 15 of the Particulars of Claim, pleading that the Defendant had no knowledge of them. The Defendant did not plead a positive case about how the accident happened, though it averred that “the surface of the decking was not slippery and it is denied that the cause of the fall was a slip as opposed to a trip or other loss of balance.”
    1. Negligence and breach of duty were denied and the particulars of negligence and/or breach of duty were addressed in turn. The following points are relevant:
i) In response to the allegation that the Hotel failed to carry out a risk assessment of the spa pool area, the Defence pleaded at paragraph 11(b): “Denied. … Further and in any event, the surface of the decking did not present a slipping hazard and the drop at the edge of the decking was obvious.”
ii) In response to the allegation that the Hotel failed to place a suitable handrail and/or guard along the exposed edge of the right raised decking area, the Defence pleaded at paragraph 11(d): “Denied. … Further and in any event, the raised decking area was clearly defined and the edge was clearly visible. This area did not form part of a circulation route and/or in any event a barrier was not reasonably required.”
iii) In response to the allegation that the Hotel failed to have in place suitable hand rails on either side of the jacuzzi steps to guard against the risk of slipping and/or falling from the right raised deck area, the Defence pleaded at paragraph 11(e): “Denied. The relevance of this allegation is not understood as it is not alleged that the Claimant’s mother slipped near the Jacuzzi steps.”
iv) In response to the allegation that the Hotel failed to provide clear warnings to Dr Clements of the risk of her slipping and/or falling from the unguarded raised deck area, the Defence pleaded at paragraph 11(j): “Denied. There was no significant risk of slipping and/or of falling. In any event, such risk of falling that may be proven was obvious and did not require a warning.”
v) In response to the allegation that the Hotel failed to provide Dr Clements with any instructions on the safe use of the pool, the Defence pleaded at paragraph 11(q): “Denied. The Claimant has not pleaded what instructions it is alleged should have been given. The surface of the deck was safe. The edge of the decking was obvious.”
    1. The Defence pleaded contributory negligence in the most generalised terms possible by paragraph 13:
“If necessary, and if which is denied the Claimant establishes that his injuries were caused by his mother’s fall, the Defendant will say that the Claimant’s injuries were caused or contributed to by the negligence of his mother in tripping, slipping or otherwise falling in such a manner and for such reasons as may be proven.”
  1. The position on close of pleadings can therefore be summarised as being that the Claimant’s version of events was clear in alleging that Dr Clements had fallen from the exposed leading edge of the decking to the right of the spa pool and steps. The Hotel understood that to be the Claimant’s case. It did not admit that the accident happened where or how the Claimant alleged but, while putting the Claimant to proof, it advanced no positive case about where or how the accident happened save that it denied that the accident was caused by a slip as opposed to a trip or other loss of balance. In support of that denial, it averred that the surface of the decking did not present a slipping hazard and was safe.

 

THE CASE SUMMARY

The case summary was also examined in detail by the Court of Appeal. It was clear from this that the location of the fall was not in issue.

Case summary
    1. In due course, an Agreed Case Summary was negotiated by the parties pursuant to an order of the Court made on 23 September 2022. The purpose of such a document is well-known. CPR PD29 5.7(1) provides that:
“1) A case summary:
(a) should be designed to assist the court to understand and deal with the questions before it,
(b) should set out a brief chronology of the claim, the issues of fact which are agreed or in dispute and the evidence needed to decide them,
…
(d) should be prepared by the claimant and agreed with the other parties if possible.”
    1. The order directing the parties to produce a case summary in this case did not direct them specifically to identify the issues of fact that were agreed or in dispute, but the parties did so anyway. The case summary included the following:
“Background
1.3 It is agreed between the Parties, in Paragraph 9 of the Particulars of Claim and Paragraph 7 of the Defence, that the upper section of the raised decking area was between 720mm and 725mm in height and that there were hooks on the wall, to the right of the Jacuzzi which were intended for spa users to hang their robes whilst they used the Jacuzzi.
1.4 The single witness account of the fall is provided by the Claimant’s Mother, Ms Clements, and the exact circumstances leading up to and how the fall occurred are in dispute, however, it is agreed that after using and exiting the Jacuzzi Ms Clements fell from the raised decking area.
…
3. Issues in dispute
3.1 The Parties respective positions are set out in the Statements of Case. Breach of Duty is denied. The Parties have opposing views as to whether the departure from the Architect’s original design, absence of plans for the revised decking design, adherence to Building Regulations or construction requirements, installation of the raised decking area around the Jacuzzi without a suitable safety barrier and the later addition of the right sided steps, all presented a hazard for guests using the Jacuzzi. The Parties disagree as to the reasonable and effective provision of suitable footwear for the guests using the outdoor Jacuzzi. The series of events leading to and including the fall are also in dispute.”

THE JUDGE’S FINDINGS

The claimant was the only direct witness to the accident.  An “accident” report disclosed by the defendant was not based on any discussion with the claimant.  During the trial the judge allowed the late admission of a typed documents which had relevant metadata.  The judge found that the accident happened in a different place to that stated by the claimant.

The first issue was whether it was open to the claimant to argue that the judge should not determine this point when this issue had not been argued below. The Court of Appeal held that it was an argument the claimant could take.
    1. The first thing to note is that, although in closing submissions to the judge below Mr Willems did not take the point that is now taken that it was not open to the judge to find that Dr Clements fell elsewhere than from the raised deck area, no objection is taken by the Respondent to the point being taken for the first time on appeal. We have therefore heard the parties on Ground 1 and will decide it.

 

    1. There is a second preliminary point that should be addressed head on. Mr Block submitted that Ground 1 is a lawyer’s construct and that no one at the time of the trial viewed the Defendant as having accepted that Dr Clements fell from the raised ledge and not on or by the stairs. He pointed to the fact that no objection was taken as the issue of the location of the fall surfaced during closing submissions or at any stage during the hearing below as indicating that those acting for the Claimant did not believe at the time that the issue of location was the subject of agreement and not for the judge to decide. Mr Willems rejected this interpretation of events. He frankly recognised that he could and perhaps should have objected at the time; but he told us that he was taken by surprise by the development of the point which, he says, explains his failure to do so.

 

    1. Without seeking to apportion responsibility or blame, I confess to being surprised that experienced, reputable and highly competent leading counsel, as Mr Willems undoubtedly is, would not react at some point as it became evident that Mr Block was putting the location of the fall in issue and the judge appeared to accept his doing so. However, I accept Mr Willems’ explanation. In similar vein, it might be thought surprising that the equally experienced, reputable and highly competent Mr Block did not intervene when the judge formulated the issues at the start of the hearing without reference to the location from which Dr Clements fell. I would accept that such things happen in contested litigation and that a court should be astute not to attribute undue significance when they do happen in a normal case such as the present appears to be. It remains necessary to analyse the facts that I have set out above to determine whether it was agreed as a matter of fact that Dr Clements fell from the raised deck area and, if so, what the implications of the emergence of the issue and its resolution by the judge without objection from Mr Willems may be.

 

The principles to be applied

    1. It is perhaps convenient to start with general principles about the formulation of issues in adversarial litigation. These are not new and can be summarised by reference to established authority:

 

i) It is fundamental to our adversarial system of justice that the parties should clearly identify the issues that arise in the litigation, so that each has the opportunity of responding to the points raised by the other:see Al-Medeni v Mars UK Ltd [2005] EWCA Civ 1041 at [21] per Dyson LJ;

ii) Statements of Case play a critical role in identifying the issues to be determined. That is not to say that a trial judge may not permit a departure from a pleaded case where it is just to do so, although in such a case it is good practice to amend the pleading, even at trial: UK Learning Academy Limited v Secretary of State for Education [2020] EWCA Civ 370 at [47] per David Richards LJ;

iii) The function of the judge is to adjudicate upon the issues identified by the parties alone: Al-Medeni ibid;

iv) Adherence to the issues that have been identified by the parties (in particular by the pleadings) prevents the trial from becoming a disorderly free-for-all: Dhillon v Barclays Bank [2020] EWCA Civ 619 at [19] per Coulson LJ;

v) The task of the courts is to do justice between the parties in relation to the way in which they have framed and prosecuted their respective cases, rather than to carry out some wider inquisitorial function as a searcher after truth: Sainsbury’s Supermarkets Ltd v MasterCard Inc [2020] UKSC 24, at [242].

    1. Case management in accordance which the overriding objective should always be directed to ensuring that the issues for the court to decide are identified and that there should be clarity both about what is agreed and what is not agreed between the parties. Such an approach is essential to dealing with any case proportionately, expeditiously and fairly. To that end, issues and matters of agreement or disagreement may be identified and refined by pleadings and, thereafter, by case summaries, lists of issues and even skeleton arguments. The functions of case summaries have already been identified: see [34] above. As in the present case, they will typically be negotiated and drawn up (or, as necessary, refined) after the close of pleadings and the exchange of witness evidence, both lay and expert, at a time when the parties can and should liaise to ensure that the future conduct of the case is expeditious and fair. Also, as in the present case, it is typical for such case summaries to have a section specifically devoted to identifying what remains in issue. In addition, it is entirely routine and good practice in an appropriate case for lists of issues to be prepared with may provide further refinement of what is in issue. Finally, the parties have another opportunity to identify matters that are or are not in issue in their opening skeletons for trial. The end result of these procedural steps should be that an objective observer can identify what are the issues that the judge is to decide in order to resolve the case.

 

    1. The CPR makes additional provision for the making and withdrawing of admissions, with a new version of CPR 14 being introduced on 1 October 2023. Common to both the new and the old versions is that a party may admit the truth of the whole or any part of another person’s case by giving notice in writing and that the permission of the court is required to withdraw an admission so given.

 

    1. In the present case, the pleadings taken alone did not remove the location from which Dr Clements fell from the issues to be decided. The general non-admission in paragraph 9 of the Defence left matters in issue that were not specifically admitted elsewhere and there was no specific admission in the Defence that either said or necessarily implied that the Defendant admitted that Dr Clements fell from the raised deck area. That said, the language used in the Particulars of Claim, which I have set out above, drew a clear distinction between the decking (meaning the raised decking) and what was described in the Particulars of Claim as the jacuzzi platform. The Claimant’s description of the scene in the Particulars of Claim was admitted by the Defence, which went on to address the allegations specifically by reference to that description and language. Mr Block attempted to persuade us that some of the references to the decking in the Defendant’s response to the allegations of negligence referred to the raised deck area and some to the jacuzzi platform. I am unable to accept that submission. On any reasonable objective reading of the Defence and the allegations in the Particulars of Claim to which it was responding, the relevant distinction was between the raised deck area and elsewhere.

 

    1. Similarly, Mr Block attempted to persuade us that the phrase “raised decking area” as used in the Case Summary meant the whole of the area surrounding the spa pool and that only the phrase “upper section of the raised decking area” in paragraph 1.3 was a reference to the area from which the Claimant alleged that Dr Clements had fallen. On that basis, he submitted that the phrase “it is agreed that … Ms Clements fell from the raised decking area” in paragraph 1.4 was a reference to falling either from what the parties have consistently described as the raised decking area (i.e. from where Dr Clements said that she had fallen) or the jacuzzi platform.

 

    1. I am unable to accept that submission. First, as I have explained above, it is at best a strained use of language to describe the jacuzzi platform as a “raised decking area”. Second, the case summary was negotiated and agreed after exchange of pleadings, witness evidence and experts’ reports, all of which used the phrase “raised decking area(s)” or its equivalent to denote the raised decks to either side of the spa pool and not the area between the steps and the edge of the spa pool itself. Third, although paragraph 1.4 of the Case Summary said that “the exact circumstances leading up to and how the fall occurred are in dispute” and the issues in dispute listed in paragraph 3.1 included that “the series of events leading to and including the fall are also in dispute”, neither paragraph stated that the location from which Dr Clements fell was in dispute. Fourth, as it emerged, the challenge to Dr Clements evidence that she fell from the raised right-hand decking was not that she had fallen from what had been called the jacuzzi platform. Rather, it was that she had lost her footing on the stairs: see [41], [42], [48], [60], [6264], and [64] above.

 

    1. Once the Case Summary is read in the context of the pleadings, the witness statements, and the experts’ reports, I would conclude that there is only one reasonable interpretation of paragraphs 1.4 and 3.1 of the Case Summary. It is that the point at which Dr Clements fell over the edge was not in dispute and was the point consistently identified by the Particulars of Claim and Dr Clements’ witness statement with its annotated photograph showing the leading edge of the raised deck area to the right of the pool, a distance of about 720 to 725 mm. What remained in dispute was the exact circumstances leading up to and how the fall occurred i.e. whether Dr Clements took a step before falling and whether or not she slipped or otherwise lost her balance.

 

    1. The skeleton arguments for the trial reinforce this conclusion. The Claimant understandably concentrated on the absence of guarding along the edge of the raised right deck area. The Defendant’s skeleton at paragraph 2 identified as issues on which findings would have to be made because they would have to be taken into account at a later date if and when considering causation, namely “the manner of the fall, nature and place of any impact and the force of the impact”. Taking these in turn, (a) “the manner of the fall” most obviously refers to the mechanism of the fall (i.e. whether Dr Clements slipped or fell for some other reason); (b) the “nature and place of any impact” refers to where and how she landed and not the place from which she fell; and (c) similarly “the force of the impact” refers to where and how she landed and not the place from which she fell.

 

    1. Paragraph 5 of the Defendant’s skeleton is consistent with this approach because it refers expressly to exploring in evidence “the mechanism of this fall” and not the place from which she fell, as is made clear by paragraph 6 which identifies the two areas of contention as being (a) whether she slipped and (b) whether a slip would have made her fall forwards.

 

    1. Furthermore, I regard paragraph 7 as inconsistent with the Respondent’s present case: it identifies the allegations with which the Defendant had to deal at trial, which include whether there should have been a guardrail but do not include the location from which Dr Clements fell. That is reinforced by paragraph 9 which distinguished between “the area where Dr Clements allegedly slipped” and “the edge over which she fell” not requiring guarding.

 

    1. I would therefore hold that the judge was right in his understanding and simplified characterisation of the issues of which he was seized as “was it slippery? Was there a barrier?”

 

    1. For these reasons I would hold that, at the commencement of the trial, the point at which Dr Clements fell over the edge was not in issue between the parties. That does not automatically conclude Ground 1 in the Appellant’s favour. It is necessary to examine how the judge came to give a decision on an issue that was not originally before him.

 

    1. In my judgment the progression emerges clearly from the facts that I have summarised above. It is plain that Mr Block recognised that he was not entitled to put a positive case, because his pleading was limited to putting the Claimant to proof; and, as I have said, he was scrupulous in his respect for that limitation.He used the Accident Report Form, the typed note and Dr Clements’ First and Second Documents to challenge Dr Clements’ credibility in advancing the account of the mechanism of the accident as set out in her witness statement. Even on the basis that the location from which Dr Clements fell over the edge was agreed, he was fully entitled to tax Dr Clements with the suggestion that these documents demonstrated that her account of the mechanism of how she came to fall had changed with time; and he was entitled to put to her that the raised decking area was not slippery even when wet. Equally, Dr Clements was fully entitled to respond by saying that she had not fallen down the steps and had not told anyone that she had done so. That did not of itself re-open the issue of where she fell. His reference to the typed note was more problematic because it included reference to the suggestion that she had slipped and fallen on the stairs rather than on the non-slip decking. However, he did not put to her that she had not fallen from the raised deck area, which he should have done if he was re-opening that issue.His references to Dr Clements’ First and Second Documents went to the distinction that the Defendant drew between slipping while putting on a slipper and slipping or falling after taking a step. He did not use it to suggest that Dr Clements had not fallen over the edge of the raised deck area. In my judgment, Mr Block was concentrating throughout on the mechanism that led to the fall, even though he referred late on to “leaving on one side whether it was a slip on steps or ledge.”

 

    1. After Dr Clements had given her evidence, there was nothing in the rest of the evidence to indicate that there was a live issue about where she had fallen over the edge. It was not until the Defendant’s closing submissions that the existence of an issue was identified: see [60] to [63] above. I have already accepted that Mr Block was scrupulous in not putting forward a positive case; but I consider that he was wrong to raise in closing submissions an issue of fact about where Dr Clements fell over the edge. Had Mr Willems objected at that point, I consider that the Judge would have been bound to hold and would have held that (a) the point from which Dr Clements fell was an agreed fact and (b) it was too late to re-open that issue.

 

    1. The fact, however, is that Mr Willems did not object either immediately or when making his submissions. To the contrary, he adopted the judge’s suggestion that the issue was live and made submissions on it.

 

    1. It is this absence of objection and willingness to address the newly introduced issue that has caused me the greatest difficulty on Ground 1: should it preclude the Appellant from asserting in this appeal that the judge was wrong to accept the issue and to decide it? Although I consider that the issue is finely balanced, I have come to the conclusion that it should not.

 

    1. First, I accept Mr Willems’ assurance that he was taken by surprise. It is not necessary to resort to phrases such as “in the heat of battle”: it was, in my judgment, surprising that the issue should be reintroduced as and when it was.

 

    1. Second, I consider that allowing the issue to be raised was prejudicial to the Claimant as its admission put the cross-examination in a different light, namely one that shines not just on the mechanism of the fall but also on where Dr Clements was when she fell over the edge. Seen in this light Mr Block’s references to the Accident Report Form and the typed note may be seen as advancing a positive case as to location, which it was not (or should not have been) open to him to do. It renders the attack on Dr Clements’ evidence and credibility much wider than it should have been. While the conduct of this trial could not be described as a disorderly-free-for all, the late admission of the issue means that the evidence of the witnesses was given and heard on one basis (i.e. that the place where Dr Clements fell over the leading edge was agreed), but subsequently came to be challenged on a different basis (i.e. that it was not).

 

    1. It is true that Mr Willems has not asserted that he would have run the case differently had the issue been out in the open from the outset. Such assertions, even if they come from leading counsel, always need to be viewed with critical circumspection. What matters, in my judgment, is that admitting the issue at that late stage changed the shape and balance of the case and, even without any assertion from Mr Willems, it is in my judgment easy to see how the emphasis of examination, cross-examination and submissions may have been different had the issue been taken openly and transparently from the outset.

 

    1. Finally, admitting the issue enabled the judge to rely upon the typed note as evidence of the location from which Dr Clements fell which, for reasons I shall explore under Ground 2, was a flawed exercise that acted materially to the Appellant’s disadvantage.

 

Conclusion on Ground 1

    1. Singly and cumulatively, these reasons mean that the decision to admit and decide the issue was procedurally unfair and wrong, notwithstanding the absence of objection at the time.

 

  1. I would therefore allow the appeal on Ground 1. However, in case I were wrong in my conclusion on Ground 1, I will also deal with Ground 2.

GROUND 2: THE JUDGE’S FINDINGS WERE WRONG IN ANY EVENT

Having found on ground one the Court of Appeal then held that the judgment was factually wrong in any event.  In particular the judge relied on the “typed note” which contained numerous inaccuracies.

 

Ground 2: if the point was open to him, was the judge wrong to find that Dr Clements missed her footing when on the stairs.
    1. The Appellant acknowledges the high bar that he must surmount before this Court will overturn a finding of primary fact made by a trial judge. So do I. The Judge must be shown to be “plainly wrong”, or to have reached a conclusion that no reasonable judge could have reached on the available evidence, or to have reached a conclusion that was rationally unsupportable: see Staechelin v ACLBDD Holdings Ltd [2019] EWCA Civ 817 at [29]-[39] for a convenient summary, which I bear in mind but does not need to be set out in full here.
    1. The essence of Ground 2 is that there was no reliable evidence to support the judge’s finding that Dr Clements missed her footing when on the steps. There are three main criticisms of the judgment. First, it is said that the judge’s reliance on the typed note was flawed and wrong. Second, it is said that his criticisms of Dr Clements’ evidence are demonstrably wrong. Third, it is said that he failed to take account of Mr Siddall’s unchallenged evidence in paragraph 18 of his witness statement.
The typed note
    1. The judge attached considerable significance to the typed note, holding that it was made contemporaneously and concluding that it was a reliable record of what Dr Clements said when asked what had happened. He based this on his assessment that Mrs Dunbobbin was honest and would not write down something she knew to be inaccurate or untrue.
    1. Since Ms Bainbridge had not witnessed the accident and had said that Dr Clements had not told her what had happened, neither she nor the Accident Report Form could provide any evidence about how the accident had occurred. Since Mrs Dunbobbin was found by the Judge to have no reliable recollection of the events of 1 January 2017, there was no evidence other than the typed note (on the judge’s finding that it was made contemporaneously) to which he could turn. However, one consequence of the absence of supporting evidence (either witness or otherwise) is that the typed note had to be assessed as it stood and on its own terms.
    1. The first and, to my mind, the most significant point about the typed note is that it does not say that Dr Clements told Mrs Dunbobbin what had happened. The first extract on which the Judge relied was “She informed us that she has slipped on the steps coming down.” In context it is not self-evident that Mrs Dunbobbin was using the word “us” to mean a group of people which included Mrs Dunbobbin or, more generically, those to whom Dr Clements spoke. The second extract was “When asked how the accident happened, she said she had worn the white bedroom slippers and had come out of the jacuzzi, and put them on, walked down the steps and slipped, landed at the bottom steps.” Once again, and in context, it is not self-evident that this passage of the note recorded something that Dr Clements said to Mrs Dunbobbin. The judge somewhat avoided the issue by saying that “the most likely explanation for Mrs Dunbobbin’s note … is that Dr Clements was asked what had happened and her reply was recorded.” There are three related difficulties with this approach. First, it does not specify that Dr Clements was speaking to Mrs Dunbobbin in relation to either extract or what the source of the information may have been. It is therefore not possible to be satisfied that the source of information can be traced back to Dr Clements. Second, it is known that Ms Bainbridge put an account into the Accident Report Form that said Dr Clements had slipped coming down steps from the hot tub without that being what she was told by Dr Clements. It is therefore apparent that the genesis of an account involving falling on the stairs existed without being based on an account from Dr Clements. Third, Mrs Dunbobbin gave no evidence either in her witness statement or when giving evidence that these extracts represented what she had been told by Dr Clements. While such evidence may have been of limited value given the judge’s finding that, by the time of trial, she had no reliable recollection of the events of 1 January 2017, the absence of any substantiating evidence is complete.
    1. The second significant feature when assessing the reliability of the typed note is that it contains clear and significant factual errors: it records things that simply cannot be correct. While not seeking to go behind the judge’s finding that Mrs Dunbobbin was an honest witness who would not record anything that she knew to be inaccurate or untrue, Mr Willems pointed to demonstrable errors in the typed note, which in his submission undermine the judge’s confidence in the note’s accuracy. On the basis, which is accepted, that the Penrith midwife’s note was made at 3.10 pm, Mr Siddall cannot have told Mrs Dunbobbin at 3.15 that Dr Clements was on the phone trying to contact the midwife, since they had already seen her. Equally, the hotel employee identified as P Mc cannot have seen the couple leave the building to go to the car park at 3.30 pm as they would by then have been at Penrith or on their way back. These timing errors are the more perplexing if, as the judge found, the note was typed up on the day; and they are completely inexplicable if, as the Defendant submitted, the metadata demonstrated that the typed note was first created at 2.54 pm and last modified at 3.38 pm that day. It is one of the regrettable consequences of admitting the late evidence described as “metadata” that these clear discrepancies were not and cannot now be resolved. All that can be said is that Mrs Dunbobbin was demonstrably an inaccurate historian when making her note; and that her error as to timings undermines any rational suggestion that the document was made at the time suggested by the “metadata“. Other questions are perhaps less important, such as the order of the paragraphs, which does not suggest chronological compilation. In the context of an appeal against a finding of fact it would not be right to place weight on these lesser unresolved questions and I do not do so.
Dr Clements’ evidence
    1. The judge had the advantage seeing Dr Clements give evidence, which we have not had. We have the advantage of a transcript, which the judge did not have. While treating the availability of a transcript as an advantage, I bear in mind at all times that there are sometimes nuances or matters that may be observed in the course of a trial that do not emerge from a reading of the transcript.
    1. The judge came to the conclusion that he should treat Dr Clements’ evidence with great caution for the reasons he gave in [18] of the judgment. In order to review his conclusion, I have read all of Dr Clements’ evidence (as I have read all of the other evidence except that I have not read every word of the experts’ oral evidence).
    1. First, the judge found unconvincing her explanation for the discrepancy between the terms of her email of December 2017 (which said “I took a step whilst still on the ledge (position 2). I slipped.”) and her current case. Her explanation was that she was not thinking about litigation when writing the emails (i.e. both her First and Second Documents), instead she was trying to get her point across. The Judge took the view that the emails did not “simplify her case in order to make a point. In fact they advance a materially different factual account.”
    1. Dr Clements’ explanation was more detailed than the judge allowed. She explained that, when she sent her First Document she was not thinking of making a claim, that she was “really chuffed” when the hotel said that they would investigate the comments she had made, and that she wrote her Second Document when she contacted them later and was told she could not see the report and was advised to see a solicitor. There was material corroboration of her account, to which the judge did not refer, in the hotel’s reply to her First Document: the hotel did say that they would investigate thoroughly and that they would let Dr Clements know the findings: see [32] above. There was no evidence to contradict her account that she was told that the report had been received but she could not see it and that she sent her Second Document after that. To my mind, it is highly material that neither her First Document nor her Second intimated a claim and Dr Clements, though it is accepted on all sides that she is intelligent, is not a lawyer. The only material difference between the account she gave in 2018 and the account subsequently given by her solicitors in correspondence, by the pleadings and by her written and oral evidence was that originally she said she took a step after putting on the slippers whereas later she said that she slipped as she was putting on the slippers. Although this became an almost obsessive focus of attention for the Defendant, and was appropriate to be investigated at trial, I am quite unable to accept that the discrepancy could justify the judge’s observation that “the fact that she put forward a different account from the one she currently insists is accurate, reflects either upon her honesty or her credibility.”
    1. The judge did not say that he found Dr Clements to be dishonest and, having reviewed the case overall, I am unable to detect any basis upon which he could have done so. Certainly it is no part of the Respondent’s case that Dr Clements was anything other than entirely honest.
    1. The judge then said that “when asked difficult question, Dr Clements gave responses that were not coherent, to the extent that, at one stage, I had to intervene and ask her what she meant.” It is true that on one occasion Dr Clements gave a confused answer in the course of which she asked for a glass of water, during which the judge said he was trying to take a note of what she was saying: see [47] above. I am unable to identify any other responses to questions (difficult or otherwise) that were not reasonably coherent and am unable to identify any basis upon which the Judge could reasonably have made the observation that he did. It seems clear to me that he has materially mistaken the quality of her evidence and that his mistake has materially affected his overall conclusion about the weight to be given to her evidence and the eventual outcome.
    1. The judge then said that “when it was put to her that Ms Dunbobbin had asked her about the accident, Dr Clements did not deny the suggestion, she explained that the slippers she was wearing had caused her to slip, but she did not directly address the record contained in the file note, which continues after the reference to slippers, that Dr Clements “put them on, walked down the steps and slipped, landed at the bottom steps”. I leave on one side, for the moment, the criticisms of the typed note outlined above. On any view the judge’s criticism is misplaced. Dr Clements first accepted that she had spoken to somebody, though she did not specify and was not asked whether that somebody was Mrs Dunbobbin. Having dealt with the reference to slippers she answered directly the point of concern to the judge, saying: “I did not say to anybody that I fell down the steps because I didn’t fall down the steps.”
    1. The judge finally had regard to Dr Clements’ demeanour in the witness box. Here he had an unassailable advantage; but it is regrettable that he did not give any details of the demeanour that he had in mind and none was proposed by the Respondent. All that this court can say is that there is no sign in the transcript that Dr Clements was exhibiting unacceptable characteristics or demeanour. As a general observation, she addressed all questions that were asked of her, including those relating to the Accident Report Form and the typed letter which, for the reasons I have explained, were put to her on what proved to be a false basis.
    1. Taken overall, I am driven to the conclusion that the Judge misjudged the quality of Dr Clements’ evidence and that his criticisms of her evidence cannot be justified.
Mr Siddall’s evidence
    1. The judge said that Mr Siddall could give him no help on the crucial issues and, in particular that “he has no recollection of what was said to whom about the accident after the event.” This was not correct. His witness statement included paragraph 18, which I have set out at [22] above and which was not challenged, and a brief mention of a conversation in the evening of 1 January 2017, the details of which he could not remember. Neither in evidence in chief nor in cross-examination was he asked about what was said to whom about the accident after the event. He therefore gave no further evidence on the point.
    1. What the Judge appears to have overlooked is that paragraph 18 of Mr Siddall’s witness statement included that Dr Clements had told him that she had slipped and fallen off the decking, which in context meant the raised deck area. The significance of this is that it was direct evidence of Dr Clements’ first account of her accident, which was entirely consistent with her case at trial about where she fell. Once the account in the Accident Report Form is placed on one side and the difficulties with the typed note are brought into focus, the significance of Mr Siddall’s evidence is, if anything increased. On the assumption that it was properly open to the judge to take and determine the question from where Dr Clements had fallen, the Judge was wrong to say that Mr Siddall was unable to help on the issues that were crucial to his decision. If, as appears to be the case, the Judge took no notice of Mr Siddall’s evidence and therefore gave it no weight, he did not provide any rational basis for doing so and his conclusion was wrong.
Conclusion on Ground 2
    1. In my judgment, the Appellant has made good the central criticisms of the judge’s findings and supporting reasoning. There was no reliable evidence that Dr Clements had ever said that she fell on the stairs and so the central tenet of her cross-examination (that she had given such an account successively to Ms Bainbridge and Mrs Dunbobbin) and the central evidential basis for the judge’s finding (the typed note) was flawed. On the other side, the judge’s criticisms of Dr Clements’ evidence, which formed the second main basis for his overall conclusion, were not justified and (with the conceivable exception of the judge’s entirely generalised and unspecific comment on her demeanour) wrong. Third, the Judge failed to give any consideration to Mr Siddall’s evidence or, if he did, gave no reason for rejecting it.
    1. Nor did the Judge give any reasoned consideration to the likelihood of Dr Clements failing to take hold of the handrail that was immediately adjacent to her if, as he found, she missed her footing on the stairs. Her consistent account, which was not inherently implausible, was that she had tried to reach the handrail but that it was too far away. The judge gave no reason for rejecting that part of her evidence; nor did he consider the implications for the case as a whole if that aspect of her evidence was correct.
    1. It is exceptional for this Court to allow an appeal on the basis that a judge’s finding on the facts was plainly wrong. This is one of those exceptional cases; and it should not be taken as an encouragement to others to try to appeal where the stringent test for this Court to intervene is not met. Here, on the question of the location of the incident, the judge relied almost exclusively on a contemporaneous note which was manifestly on its terms unreliable. He failed to have regard to the unchallenged evidence of one witness, and dealt inadequately with the evidence of another, Dr Clements. The judge himself considered that he could not accept the evidence of other witnesses as to where the incident occurred. In the circumstances, and exceptionally, there was no logical basis for his finding that the incident occurred on the steps. The only consistent, and in some respects unchallenged, evidence was that the incident occurred on the raised decking, from which Dr Clements fell. There was no rational basis on which the judge could find otherwise.
    1. I therefore find myself driven to the conclusion that, assuming the point was open to him, the judge’s conclusion that Dr Clements lost her footing on the stairs was plainly wrong and should be reversed. He should have found that she fell from the raised decking area. Had he done so, he would have found the Defendant to have been in breach of duty in failing to guard the leading edge of that area and, in my judgment, would unarguably have been right to do so.
  1. I would therefore allow the appeal on Ground 2.
Tags: , , ,