Judge’s decision overturned due to no reasonable logic for factual finding.
The case of Clements-Siddall v Dunbobbin Hotels Ltd [2023] EWCA Civ 1300 provides an exceptional example of the Court of Appeal overturning a decision on the basis that a factual finding was not open to the Judge to decide and, in any event, the factual finding was wrong.
Dr Clements, the Claimant’s mother and Litigation Friend was 25 weeks pregnant when she attended the Defendant’s hotel and made use of the hotel’s outdoor spa.
The spa was accessed via a set of central steps with a handrail up the middle. To each side of the spa was a raised unguarded decking area. The right raised decking area had pegs for robes etc to be hung. Dr Clements was retrieving her robe and slippers when, as she placed her foot in her slipper, she slipped and fell forwards off the raised decking area hitting her pregnancy bump and causing injury to her unborn child.
Dr Clements originally brought a claim on her child’s behalf under Section 1 of the Congenital Disabilities (Civil Liability) Act 1976.
The Judge in the first instance found that Dr Clements had missed her footing whilst on the steps leading down from the spa pool rather than the fall occurring on the raised decking (as was pleaded in the Claimant’s case) and ruled in the Defendant’s favour.
The Judge went on to state that had he found that Dr Clements had fallen from the raised decking (not the steps) then he would have found the hotel in breach of duty.
The decision was later appealed, and it is the appeal to which this article relates.
Before discussing the appeal, it is important to note the following background factors:
- The Claimant’s pleaded case was consistent in saying that the location of the accident was the raised decking area.
- The Defendant only raised the issue as to the location of the accident within their closing arguments at trial.
- The Judge in the first instance relied heavily on a typed Accident Report Form which was granted late admission.
- The Judge in the first instance agreed that there were no direct witnesses to the accident other than Dr Clements herself.
The grounds of appeal were as follows:
- Was it open to the Judge to find that Dr Clements fell elsewhere?
- Was there reliable evidence to support the Judges’ findings that Dr Clements missed her footing on the stairs?
From hereon the Claimant will be referred to as the Appellant and the Defendant referred to as the Respondent.
Ground 1
Submissions
The Appellant argued that the way the case was pleaded and the way it had been prepped for trial meant that the location of the accident was not in issue at trial and, therefore, not for the judge to decide.
The Respondent submitted that no one at the time of the trial viewed the Defendant as having agreed the location of the accident. The Respondent further submitted that the lack of objection from the Appellant at the time the issue of surfaced, during closing arguments, indicated that the Claimant did not believe that the issue of location was subject to agreement, therefore, the issue was open for the Judge to decide.
In response the Appellant confirmed that they should have raised an objection at the original trial but were surprised by the turn of events and, equally, the Defendant did not intervene when the Judge formulated the issues at the start of the trial without reference to the location from which Dr Clements fell.
Ruling
The Court of Appeal decided that allowing the issue to be raised was prejudicial to the Appellant. The late admission of the issue meant that the witness evidence was given and heard on the basis that the location of the accident had been agreed but then the witness evidence came to be challenged on a different basis (that the location was not agreed).
The Court of Appeal further stated that admitting the issue allowed the Judge in the first instance to consider the typed accident report materially to the Claimant’s disadvantage and “singly and cumulatively for these reasons mean that the decision to admit and decide the issue was procedurally unfair and wrong not withstanding the absence of an objection at the time.”
It is noted that the Court of Appeal when reaching this decision had regards for the Particulars of Claim, Case Summary and Defence and confirmed that the Defendant did not plead a positive case in respect of location in their defence.
Ground 2
Submissions
The Appellant submitted that there was no reliable evidence to support the Judge’s finding that Dr Clements had missed her footing on the steps rather than fell from the raised decking.
As mentioned the Judge in the first instance relied heavily on the typed Accident Report Form which the Appellant submitted was flawed on the following basis:
- The Respondent’s assertion was that the Accident Report Form was a reliable record of what Dr Clements had said when asked what happened. This was not the case:
- The form recorded “She informed us that she had slipped.” The use of the word “us” did not specifically say that Mrs Dunbobbin was the person to whom Dr Clements spoke.
- The form does not specific that the source of the information contained therein was from Dr Clements.
- It was known that Ms Bainbridge had put an account into the Accident Report form saying that Dr Clements had fallen coming down the steps even though this was not what she was told by Dr Clements. Therefore, an account involving a fall down the stairs existed without it being based on evidence from Dr Clements.
- There were clear errors within the form such as:
- The form maintained that Mr Siddall (Dr Clements’ fiancé at the time and now husband) had informed Mrs Dunbobbin at 3:15pm that they were trying to reach the midwife despite the Penrith’s Midwife’s note confirming that Dr Clements had already been seen at 3:10pm.
- An employee was reported within the form as seeing the couple leave the hotel carpark at 3:30pm, however, as evidence by the midwives note they were either still in Penrith (having seen the midwife there at 3:10pm) or were on their way back.
The Appellant further argued that the Judge erroneously found he had to treat Dr Clements’ evidence with caution.
Finally, the Appellant submitted that the Judge failed to consider Mr Siddall’s evidence which confirmed that Dr Clements told him that she had slipped and fallen off the raised decking. It was submitted that Mr Siddall’s evidence was direct evidence of Dr Clements’ first-hand account of the accident.
Ruling
The Court of Appeal ruled that that there was no reliable evidence that Dr Clements ever said she fell on the stairs meaning the central tenet of her cross-examination (that she had given such an account to Ms Bainbridge) and central evidential basis for the Judge’s findings (the Accident Report Form) was flawed and wrong.
In addition, the Court of Appeal found that the criticism of Dr Clements’ evidence was not justified and there was no reason for rejecting and/or not considering Mr Siddall’s evidence.
Summary
Ultimately, the Court of Appeal allowed the appeal on the basis that the Judge’s conclusion that Dr Clements lost her footing on the stairs was plainly wrong and should be reversed. The Judge relied almost exclusively on a contemporaneous note which was unreliable and failed to have regard to the unchallenged evidence of one witness and deal adequately with the evidence of Dr Clements.
This was an exceptional case where the only consistent evidence was that the incident occurred on the raised decking and there was no rational basis on which the Judge in the first instance could have found otherwise.
This case is an example of the importance to review pleadings, case summaries and documentary evidence in detail given the role of the trial judge whose function is determine the issues placed before the Court.
As a word of caution the Court of Appeal has emphasised that this was an exceptional case and should not be taken as encouragement for others to appeal where the stringent test for the Court of Appeal to intervene is not met.
Michelle Mone, Costs Lawyer
09.05.2024