B3/2005/1081 
Neutral Citation Number: [2005] EWCA Civ 1041
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM HIGH WYCOMBE COUNTY COURT
(HIS HONOUR JUDGE CATLIN)
Royal Courts of Justice 
Strand 
London, WC2 

Monday, 18th July 2005
 
B E F O R E:

LORD JUSTICE BROOKE
VICE-PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION 

LORD JUSTICE TUCKEY 

LORD JUSTICE DYSON 
 
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NADA FADIL AL-MEDENNI
Claimant/Respondent
-v-
 
MARS UK LIMITED 
Defendant/Appellant 
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(Computer-Aided Transcript of the Palantype Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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MR DOMINIC NOLAN (instructed by Messrs Langleys Solicitors, Lincoln LN6 3JY) appeared on behalf of the Appellant
MISS CAROLINE HARMER (instructed by Messrs Baily Gibson, High Wycombe HP11 2AG) appeared on behalf of the Respondent
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J U D G M E N T
1.	LORD JUSTICE BROOKE:  I invite Lord Justice Dyson to give the first judgment.
2.	LORD JUSTICE DYSON:  At all material times the claimant was employed as a packer, case fitter and machine operator at the defendant's factory in Slough.  On 21st August 2002, in the course of her employment, she was injured when she was struck on the shoulder by a reel of wrapping paper weighing about 10 kilograms, which fell from above her as she went close to a machine called a GD1.  She brought proceedings against the defendant.  After a trial on liability, His Honour Judge Catlin, sitting at Reading County Court, gave judgment on 7th September 2004 in favour of the claimant and ordered damages to be assessed.  But because the claimant had not succeeded on her case as pleaded and advanced at trial, he awarded her only 50% of her costs.
3.	The defendant now seeks permission to appeal against the finding of liability.  By her particulars of claim, the claimant alleged that the accident was caused or contributed to by the negligence of the defendants.  Particulars of negligence were pleaded at paragraph 6 in these terms:
"The Defendants, their employees or agents were negligent in that they:-
6.1 Failed to make and keep safe for the Claimant a place in which she was working.
6.2 Failed to discharge the common duty of care to see that the Claimant was reasonable safe in using the premises, contrary to Section 2 of the Act.
6.3 Caused, permitted or suffered the roll of foil wrapping paper to come to be or to remain unsecured on the GD1 machine wherein it constituted a hazard.
6.4 Exposed the Claimant to a danger or a trap or a foreseeable risk of injury.
6.5 Caused permitted or suffered the Claimant to kneel in the aforesaid area when it was unsafe so to do.
6.6 Failed to warn the Claimant of the dangers of kneeling in the aforesaid area or otherwise prevent her from doing so.
6.7 Failed to take any or any adequate care for the safety of the Claimant. 
6.8 By the servant or agent (Joginder Braich) who failed to secure the roll of foil wrapping paper on the GD1 machine, permitted or suffered the roll of foil wrapping paper to fall on to the Claimant without giving the Claimant any or any adequate or timely warning.
6.9 Failed to provide the Claimant safe and competent fellow employees."
4.	Pursuant to the defendant's request, on 22nd August 2003 the claimant provided further information of her particulars of claim which included the following:
"2. From what precise point on the machine does the Claimant say the roll of wrapping paper fell?
Answer:  The Claimant does not know the precise point on the machine from which the roll of wrapping paper fell, but speculates that it fell from the large spool on the machine indicated on the attached four copy photographs of the machine.
3.  Precisely what was the Claimant doing on the machine at the time when she was struck by the falling roll?
Answer:  The Claimant was kneeling on the ground immediately adjacent to the machine demonstrating to Joginder Braich how to operate the gear and the key in order to move the machine back into position after cleaning.  Joginder Braich had been cleaning the machine but was unable to move it back into position thereafter and had requested the Claimant's assistance with this operation.
4.  For what purpose does the Claimant say that Joginder Braich placed the roll of foil on the machine?
Answer:  Only Joginder Braich can say what he had in mind when he placed the roll of foil on the machine.  The Claimant speculates that Joginder Braich placed the roll of foil on the machine after he had completed cleaning the machine in order to make it ready for use by the machine operatives on the next shift." 
5.	By their defence the defendant denied negligence and alleged that the accident was caused by the claimant's own negligence:
"... in placing the roll of wrapping paper on the machinery in such a place or manner that it could and did fall upon her as she went about her work."
6.	Witness statements were served which reflected the pleaded cases.  In her witness statement, the claimant said that shortly before the accident she saw Mr Braich carrying rolls from the pallet to the GD1 machine that he had been cleaning, although she did not see him place the rolls on the machine.  She denied placing rolls of wrapping paper on his machine or assisting him to do so.  There came a time when, having cleaned his GD1 machine, he was trying to move it back to its correct position.  He was unable to do so and asked the claimant for assistance.  She went over to his machine and knelt on the floor.  It was at this point that she was struck by the reel of wrapping paper.  She said that the reel could not have been securely locked into position on the spindle.
7.	In his witness statement Mr Braich said that he did not handle reels of wrapping paper and did not load any reel on to his machine, or indeed any other machine.  His sole responsibility was for cleaning the machines.  He did not see the reel fall from the machine.  He did not see a reel on any part of the machine, and believed that the spindles on the machine were empty at the time.  If the reel had fallen from the spindle on the machine he had been cleaning, it would have hit him as well.
8.	In the course of her opening, Miss Harmer, who appeared for the claimant then as she has done today, made it clear that her case was that the reel had fallen because it had been wrongly placed on the machine (i.e. the spindle) by Mr Braich, and the defendant's case was that the claimant herself had placed the reel on the infeed conveyer to the machine.  At one point in the opening, Mr Nolan intervened to say this (page 153, line 7):
"The issues have polarised very sharply, and although your Honour sees at the back of the court a large number of potential witnesses, my learned friend and I are in agreement that really it comes down to a very straightforward issue of fact.  Mrs Al-Medenni has from the outside [sic] stated her case on the basis that not only did Mr Braich put the offending reel in the position in which it was in, from which she says it was dislodged so as to strike her shoulder - and your Honour may have had a quick chance to see the photographs - but she says that further he admitted to her specifically the accident to be his fault.  If your Honour has seen Mr Braich's statement he denies that and that is where the issue is that your Honour is going to have to try."
9.	A little later he said:
"... my learned friend and I are happy to indicate that it really comes down to that, if I may put it this way, does the court accept Mrs Al-Medenni's evidence that Mr Braich put the reel on the machine and accepted that he had done so, thereby causing her accident?"
10.	The judge then intervened, and the following exchange took place between him and Mr Nolan (page 153, line 29):
"JUDGE CATLIN:  There is another possibility, is there not, and that is, apart from the claimant being responsible for it, that if the court found - and I do not think the claimant says that she saw the other man actually place the roll on the machine, so she is surmising, because he was the only one there, that it was him.  But there are also four other candidates in the frame, are there not? 
"MR NOLAN:  No, not so, because -- 
JUDGE CATLIN:  Why?
"MR NOLAN:  From the outset, because of the way she puts her case, Mrs Al-Medenni has said it was Mr Braich, and your Honour will recall there are two references in her statement to her saying that Mr Braich -- 
JUDGE CATLIN:  Yes, but she did not see him actually do it.  I do not want to say too much at this stage because obviously people coming to give evidence might pick up on what I am saying and I do not want that to happen, but I do not see how you can rule out -- I have no view about what the likely outcome of hearing evidence is going to be but I do not see how you can rule out the possibility that it was someone other than Mr Braich.
MR NOLAN:  I am asking the court simply to consider the claimant's case - is the claimant's case established - and perhaps I need say no more at this stage than you will hear from the claimant and --  
JUDGE CATLIN:  I recognise that if the court accepts the evidence that Mr Braich said, 'It's my fault', that that depends on what - I imagine he is going to deny saying that but that could encompass him being personally responsible, if he said it, and putting the roll where it should not have been or someone else doing it and he not being aware of it.  I do not invite any response now but I do not see that it is necessarily all or nothing."

11.	It will be convenient to refer to the judge's alternative suggestion as "the third man theory".  It is of some significance that Miss Harmer did not take up the third man theory, and did not suggest that Mr Nolan had not accurately summarised the issue that the judge had to decide.
12.	The case then proceeded and a number of witnesses were called.  The claimant and Mr Braich gave evidence, which in its essentials was consistent with their witness statements.  The third man theory was not explored with any of the witnesses.  There was an en passant reference by Mr Braich to there having been about five or six people working in the area of the GD1 machine and about 17/18 people being around during the whole shift.  But no witness was asked whether any of these other employees might have been responsible for placing the offending reel on the spindle or any other part of the machine.
13.	During the course of final submissions, the judge indicated to Mr Nolan that he would take a lot of persuading that either party was correct as to how the reel came to be in the position in which it was when it fell off.  He said that his provisional view was (page 213, line 36):
"So it must follow that someone did it, I cannot identify who it was.  It is not likely to be a burglar so it must be another employee, it is the only possible explanation on the evidence ..."
14.	A little later in his submissions, Mr Nolan said this (page 216, line 26):
"Now, the second alternative as opposed to the speculative one is that, knowing this, she thinks that reel is going to be needed on that machine later, so she places the reel, in a moment's carelessness, on the conveyer, not appreciating that as she does that that as she closes the machine she is going to knock it off.  It is human error but it is a much more feasible explanation than what your Honour has described as the very speculative alternative, which I come to."
15.	Then he said (line 33):
"But even before I come to the detail of dealing with that as a possibility, and why I say it is not a feasible possibility, it is not with respect permissible for a claimant to put a case and say, 'This is how my accident happened', and for that case to be rejected as it should be, because Mr Braich did not put this reel on the spindle prior to this accident.  Once that case is rejected, without any alternative case having been pleaded or argued or put to any witness, then for speculation to produce some unpleaded, uncountenanced account to explain the accident and put the blame on the defendants.  Either the claimant's case succeeds or it does not."
16.	Then a little later Mr Nolan said:
"And what I am saying is, if the claimant says adamantly, 'This is how my accident happened', and that claim as it seems is rejected, where then?  In the absence of any alternative case it is not permissible to say, 'We can speculate some other way in which the claimant could make out her claim', she either has a factual case that she can establish or she does not."
17.	The final citation I make from the submissions of Mr Nolan is this (page 219, line 9):
"MR NOLAN:  My rhetorical question in answer to that is that is which third person?  Who of all the witnesses spoke of some third person being involved even near the machine?
JUDGE CATLIN:  Mr Braich said there were lots of other people around. 
MR NOLAN:  Around - who spoke of a third person -- 
JUDGE CATLIN:  No-one asked him, you see, and that is not a criticism.  It is not for the courts to ask these questions, sometimes there are good reasons why people or counsel does not want to ask questions because they do not know what the answer is going to be, a very sound way of working, and certainly it is no part of the judge's role to ask these sort of questions."

18.	In her closing submissions Miss Harmer seems to have adopted the third man theory as an alternative to her primary case that Mr Braich was responsible.  She submitted that the particulars of negligence in the particulars of claim were wide enough to encompass the third man theory.  In the further alternative she said, without developing the point, that the claimant could rely on res ipsa loquitur: the thing speaks for itself.
19.	I am in no doubt that the particulars of claim did not plead the third man theory.  The pleading, as supplemented by the further information, made it clear that the claimant's case was that the reel had been placed on the machine by Mr Braich and no one else.  Furthermore, there was nothing in the claimant's pleadings, witness statements or how the case was conducted on her behalf to indicate that she was relying on res ipsa loquitur.
20.	In his judgment the judge found that the reel which fell and injured the claimant had been insecurely fixed to the spindle and had not been placed on the infeed conveyor to the machine.  It was not placed by the claimant either on the conveyor or the spindle, nor was it placed by Mr Braich on the spindle.  It is not necessary to examine the reasons given by the judge for these findings.  In short, as anticipated by his remarks during counsel's submissions, he adopted the third man theory.  He said this: 
"20.  I recognise that in part of the evidence it was said that other employees who were in the area were working on another part of the area, not in this area in question, but there were other employees in the area and someone must have put this spool onto the spindle.  I cannot identify - nor can the claimant, although she wrongly thought it was Mr Braich - I cannot identify the employee who was responsible for insecurely fixing this spool onto the spindle.  Mr Braich denies having done so and I accept his denial.  Some other employee must have done.
21.  The likelihood is that such other employee was not familiar with what was required to secure the spool, but anyone who was familiar with it would have had a simple task of securely fixing it, and that to a certain extent explains and supports my finding, in my view, that it was someone inexperienced, uninstructed, who carried out the fixing of the spool to the spindle, which is why it was not properly fitted.
22.  The reason why any such worker would do that is speculative and I am unable to explain why any worker would do it.  There is a possibility that it was someone who was just putting the spool on the spindle whilst he cleaned another part of the machine, but there is no evidence to support that and it is pure speculation as to why an employee would have insecurely fixed the spool, but in my judgment somebody did.
23.  So my finding amounts to a finding that it was done by an unidentified employee working carelessly, probably due to not being properly instructed in the fitting of the spool to the spindle, but he was working, as far as I can tell, within the course of his employment."

21.	In my view the judge was not entitled to find for the claimant on the basis of the third man theory.  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 made by the other.  The function of the judge is to adjudicate on those issues alone.  The parties may have their own reasons for limiting the issues or presenting them in a certain way.  The judge can invite, and even encourage, the parties to recast or modify the issues.  But if they refuse to do so, the judge must respect that decision.  One consequence of this may be that the judge is compelled to reject a claim on the basis on which it is advanced, although he or she is of the opinion that it would have succeeded if it had been advanced on a different basis.  Such an outcome may be unattractive, but any other approach leads to uncertainty and potentially real unfairness.
22.	The starting point must always be the pleadings.  In Loveridge and Loveridge v Healey [2004] EWCA Civ 173, Lord Phillips MR said this at paragraph 23:
"In McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775 Lord Woolf MR observed:
'Pleadings are still required to mark out the parameters of the case that is being advanced by each party.  In particular they are still critical to identify the issues and the extent of the dispute between the parties.'
It is on the basis of the pleadings that the parties decide what evidence they will need to place before the court and what preparations are necessary before the trial.  Where one party advances a case that is inconsistent with his pleadings, it often happens that the other party takes no point on this.  Where the departure from the pleadings causes no prejudice, or where for some other reason it is obvious that the court, if asked, will give permission to amend the pleading, the other party may be sensible to take no pleading point.  Where, however, departure from a pleading will cause prejudice, it is in the interests of justice that the other party should be entitled to insist that this is not permitted unless the pleading is appropriately amended.  That then introduces, in its proper context, the issue of whether or not the party in question should be permitted to advance a case which has not hitherto been pleaded."

23.	In the present case the claimant's pleaded case was that Mr Braich and no one else placed the reel on the machine.  If the claimant wished to advance the third man theory as an alternative to her primary case, then she had to seek permission to amend her pleadings.  It may be that she had sound tactical reasons for not taking this course.  To advance such an alternative case was inconsistent with the claimant's evidence, and might in any event have been interpreted as a sign of weakness.  There was no hint of the third man theory in the witness statements, the way in which the case was opened or in the evidence of the claimant's witnesses.  I accept that there was a rather faint-hearted espousal of the theory by Miss Harmer in her closing submissions, but in my judgment it was by then far too late for the claimant to take the point.
24.	As the judge himself recognised, the third man theory was not explored with any of the witnesses.  If the defendants had been alerted to the fact that this theory was in play, then they would at least have wished to consider exploring it with some of the witnesses who were called to give evidence.  For example, Mr Forester, the Key Operator, might have been asked which employees were on duty at the time of the accident, and whether any of them was employed to move reels of wrapping paper about and place them on the machines.  The defendants were also denied the opportunity of considering whether to seek evidence from other witnesses directed to this point.
25.	Having concluded, as he did, that neither the claimant herself nor Mr Braich was responsible for placing the reel in the position from which it fell, the judge should have concluded that the claim was not proved and he should have dismissed it.  In my judgment that should have been the inevitable consequence of his findings.  By making findings for which the claimant was not contending, it seems to me that the judge crossed the line which separates adversarial and inquisitorial systems.  What he did may have been legitimate in an inquisitorial system.  It was, in my judgment, impermissible in our system.
26.	For these reasons, I would give the defendants permission to appeal and allow the appeal.
27.	As a footnote I should add that it is most unfortunate that this application for permission to appeal was lodged in the High Court in the first instance, thereby causing a good deal of delay.  Everyone should now know that appeals from the county court in multi-track cases lie to this court.
28.	LORD JUSTICE TUCKEY:  I agree.
29.	LORD JUSTICE BROOKE:  I also agree.
ORDER:  Application for permission to appeal granted, the appeal is allowed and the judgment of Judge Catlin set aside; the respondent claimant to pay the appellant defendant's costs here and below, to be subject to detailed assessment if not agreed. 
(Order not part of approved judgment)