England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM CIVIL JUSTICE CENTRE
(HIS HONOUR JUDGE MCKENNA)

		Royal Courts of Justice Strand London, WC2
		26 October 2006

1. LORD JUSTICE WALLER: I will ask Lord Justice Maurice Kay to give the first judgment.
2. LORD JUSTICE MAURICE KAY: On 19th December 2005, His Honour Judge McKenna gave judgment for the claimant, Linda Margaret Manning, who had claimed damages for personal injury from the defendant, Janella Adria Stylianou. The judgment was concerned only with the issue of liability. The judge held that the claimant had proved that she had sustained personal injury as a result of tripping over a small metal stump on the forecourt of the defendant's premises at 22 School Road, Yardley Wood. The defendant is the tenant of those premises, from which she and her husband operate a practice as opticians. The defendant is now the appellant in this court, having been granted permission to appeal by Rix LJ.
3. The grounds of appeal seek to take issue with the judge's findings of fact and the sufficiency of his reasoning.
4. Twenty -two School Road is the middle one of a terrace of five commercial premises. Looking from the front of the road the row runs from left to right as follows: No 18, the Oriental Chef, a Chinese takeaway food shop; No 20, Corrals Bookmakers; No 22, the defendant's premises; No 24, Hoque, an Indian restaurant; no 26, First Degree Hair Design, which has since become PT Natural Nail Care. Each unit has a flat frontage of 6 metres. In front of that there is an unenclosed area over 6 metres deep which is used for car -parking. There is then a pavement which is 4 metres deep and thereafter the road itself. On the pavement close to the road are two public telephone boxes. At trial, the claimant's witness statement, which comprised her evidence in chief, was summarised by the learned judge in this way.

"... she left her home at 178 Prince of Wales Lane, Warstock, Birmingham at about 8.45 am on the morning of April 2001, bought a comic and some sweets for her granddaughter and then was making her way towards a bus stop with the intention of catching a bus to her daughter's house in Beauchamp Road Billesley ... She was walking along the line of shops ... and says that she had taken only a few steps past the Chinese takeaway, the Oriental Chef, which she has always referred to as the Curry Garden, when she trod on something which she later identified as the stump of a metal fence post which she described as sticking up about an inch above the slabbed area on which she was walking. As she trod on the metal stump with her left foot her heel slipped and she lost her balance, falling, taking her weight on her left hand which was out stretched at the side and slightly behind her. She was close to a pair of telephone boxes ... Being in pain she, first of all, went home and then later the same day attended at her GP and subsequently at the Accident & Emergency Department of her local hospital."

The witness statement had annexed to it a sketch plan which showed two metal stumps on the defendant's land and purported to identify the one closer to the boundary with No 24 as the metal stump which had precipitated the accident.

5. There is no doubt that the claimant's evidence had serious shortcomings. The case for the defendant on this appeal is that they were so numerous and significant that the judge was wrong to find in her favour. The criticisms advanced by Miss Day are not all of the same potential strength and I shall concentrate on the principal ones. First, the GP's note states, "Fell on shoulder in garden", and the note made at accident and emergency later on the day of the accident states, "Fell backward in garden". The claimant's explanation for this is that at first she thought she had fallen outside the Oriental Chef, and she was in the habit of calling that business the Curry Garden. In fact, it had never had that or any other similar name. Secondly, the claimant said that she returned to School Road three days after the accident to see what had caused her fall. She examined the forecourt of the Oriental Chef but none of the other premises. She found no obstacle outside the Oriental Chef.
6. Thirdly, when she first instructed solicitors they wrote to Birmingham City Council referring to an accident, "near to and/or opposite First Degree Hair Design". The Council sent an official, Mr Akin, to investigate a claim in respect of that location. Indeed when the claimant's solicitors first contacted the defendant it was to ask if she owned the hairdressers at No 26. Even at trial the amended particulars of claim still referred to the accident having occurred in front of First Degree Hair Design.
7. Fourthly, in cross -examination the claimant was asked to identify the metal stump on the exhibited photographs. She first identified it on photograph No 1 on page 574. There is an issue as to the precise location depicted in that photograph. I shall return to it when considering the way in which the judge dealt with the photographic evidence. A little later in cross -examination she said she had tripped over the metal depicted in photograph No 2 on page 574, rather than photograph No 1. It is not possible to tell from photograph No 2 precisely where or on whose land the metal there depicted stands.
8. Fifthly, and less importantly, the claimant did not mention the accident to the defendant on the day or when she attended the premises by appointment as a patient on 30th January 2002, or indeed at any other time.
9. The judge was clearly aware that the claimant's evidence was problematical. However, his conclusions were expressed as follows:

"10. I have to confess that for a considerable period of this hearing I had considerable doubts as to whether or not the Claimant would be in a position to satisfy me as to where she says the accident took place and, in particular, that the accident site was on the forecourt of the Defendant's property. Various photographs which were produced and on which the Claimant purported to identify as the accident site seemed to me, on the one hand, to be mutually inconsistent and, in particular, the photograph on page 574 seemed to me not even to be on the Defendant's property. However, on a closer analysis of the photographs I have come to the conclusion on the balance of probabilities that the accident site as identified by the Claimant in the photograph at page 574 is indeed the same as the site identified in the photograph at page 540 and I am reinforced in that view by the evidence of Mr Akin in his witness statement ... where he gives evidence as to a site visit which he undertook on 2nd July 2003 ... He recites having investigated the forecourt of First Degree Hair Design, not having found any defect but then having located a defect on the forecourt of opticians premises which he then photographed and measured, and the photographs appear as exhibits to his witness statement.

11. I accept the claimant's explanation for the use of the word 'garden' and how the GP notes and the A & E notes make reference to 'garden' as being the accident site. I accept what she says that she described the accident site as being near to the Curry Garden, which was her name for the Chinese restaurant.

12. It is not, in my judgment, entirely surprising that the Claimant should not have immediately been aware of the exact location of the accident. What she was very conscious of was what was the cause of it, namely this metal rod. She also knew that the accident site was close to the two telephone boxes which she recalls as being forward and to her right, and that is a description which is consistent with the location of the metal rod in photograph 1, page 574 and indeed the photograph on page 540. I am, therefore, satisfied that the accident site and the cause of the accident (the metal rod) were as she described and were on the forecourt of the Defendant's property."

10. Miss Day puts the judge's use of the photographic evidence at the forefront of her attack of his findings and reasoning. She submits that the metal stump identified by the claimant on photograph 1 on page 574 is not the same as that depicted in the photograph at page 540. She says that the one on page 574 can be located by its position relative to the telephone boxes, and that other photographs at pages 547 and 548 show that the telephone boxes are substantially in front of the Indian restaurant at No 24 and not the opticians at No 22.
11. There are difficulties about this aspect of the case. The first is that the only relevant plan produced in evidence was a sketch plan made by Mr Gilbert, a private investigator. It is not to scale. It depicts the telephone boxes with one wholly on the forecourt of No 22 and the other partly on the forecourt of No 22, but mainly on the forecourt of No 24. On the other hand, the three photographs on pages 547 and 548 show both phone boxes to be mainly on the forecourt of No 24. At the very least they appear irreconcilable with Mr Gilbert's sketch plan. In fairness to him, at the time when he drew the plan the telephone boxes had not seemed to be in any way relevant. That relevance only came to the fore as a result of answers given by the claimant in cross -examination. However, if the phone boxes are substantially on the forecourt, as the photographs on page 547 and 548 clearly show and as the claimant conceded in cross -examination, it seems to me that it is not possible to conclude from photograph 1 on page 574 that the metal stump there depicted is probably on the forecourt of No 22 rather than No 24. Quite the contrary. If I am right about that, then the metal stump on page 574 cannot be the same as whatever is depicted on page 540. The photograph on page 540 is a later photograph taken after the forecourt to No 24 had been concreted over. It depicts something on the forecourt of No 22 which may well be metal. But if the claimant fell over the metal stump depicted on photograph 1 on page 574, as the judge found, I am quite sure that the photograph on page 540 does not enable her to support the assertion that it was on the defendant's land. I say this because of the configuration of the telephone boxes.
12. Where does all this lead? There is no doubt that the judge's use of the photographs on page 574 and 540 played a crucial part in his conclusion that the metal stump identified by him as the culprit (the one depicted in photograph 1 on page 574) was on the defendant's forecourt. I consider that the judge was wrong about that. Mr Cliff's attempt to support the judge's reasoning and conclusion is founded to a significant extent on Mr Gilbert's sketch plan. However, the judge did not rely on it for this purpose and, as I have said, it is irreconcilable with the photographs. Mr Cliff's attempts to interpret the photographs so as to position the phone boxes on, or more on, the defendant's land does not convince me at all.
13. It is with great hesitation that this court should interfere with the conclusion of a trial judge on such a matter. However, I am satisfied that this is not simply a case of taking a different view: it is a case of the judge being wrong about a crucial finding in the case. It is a matter which, with respect, we are in no worse a position to assess, having before us all the material that the judge had before him and which was so influential upon his decision.
14. This alone would be sufficient for the present appeal to succeed. Some of the other points raised by Miss Day seem to me to be less powerful. The claimant's explanation about having fallen "in the garden" may have been unusual, but the judge saw and heard her give the explanation and I do not feel able to say that he was wrong to accept it. Nor do I think that he erred when taking a sympathetic view of the claimant's evidence about such things as timing or the failure to say anything about the accident when she later saw the defendant by appointment.
15. I am not sure that the claimant's prevarication as to exactly which forecourt accommodated her accident can so readily be brushed aside, although Mr Aikin, the Birmingham City Council official, found only one defect in the form of a metal object, namely the one on the defendant's forecourt, which is not the one depicted on photograph 1 on page 574, the forecourt at No 24, and indeed another forecourt, had been concreted over by the time of his visit. Moreover, a number of the photographs show that the area immediately outside both the sides of the defendant's forecourt was quite rough, with other defects, including metal debris, which could have caused a fall.
16. There are additional matters which undermine the claimant's evidence. However, the judge seems to have been alert to the shortcomings of her evidence. As I read his judgment, he would not have been satisfied as to its essential correctness on a balance of probabilities if he had not found the significant support for it which he found in the photographs. It is because I am persuaded that he was wrong about the power of the photographs to support the claimant's evidence about the location of the accident that I am driven to conclude that this appeal should be renewed.
17. So far I have said nothing about the ground of appeal based on an alleged insufficiency of reasons. It would not have persuaded me to allow the appeal if it had stood alone. To my mind the judge's reasoning was clear. He accepted the claimant's account because he thought, albeit wrongly, that, notwithstanding its shortcomings, it attained probability with the support of the photographs. He accepted the claimant's explanation about the garden and was not minded to hold the inconsistencies in her earlier accounts against her. In my view, his judgment was flawed by a fatal mistake as to the evidence but not by any failure to explain his reasoning, as required by English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605.
18. I do not leave this matter without a comment about the difficulties that have arisen. It is a case in which vague and inconsistent evidence, for which I do not criticise the claimant and which may be quite understandable, was sought to be strengthened by poor photographs and a defective sketch plan. One appreciates the difficulties of cost and funding, but if a case is to be proved the chances of proving it with poor material of the quality produced in the present case ought to have been negligible.
19. LORD JUSTICE WALLER: I agree that this appeal should be allowed for the reasons given by my Lord. I would like to add a few words on a point which has caused me a little concern. Miss Day, in her skeleton seeking to direct attention as to the proper way we should approach the judge's findings of fact in this cases, has relied on a passage in the judgment of Brooke LJ in Tanfern v Cameron -MacDonald [2000] 1 WLR 1311, where Brooke LJ said:

"... the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible."

That judgment and the concept of "exceeding generous ambit within which a reasonable disagreement is possible", is concerned with the exercise of discretion by the judge. Indeed, so much is actually recognised by Miss Day in paragraph 18 of her skeleton where she says that the judge has therefore "exceeded the limits of his discretion". The language of Brooke LJ, as he recognised, came from a passage in the judgment of Lord Fraser in G v G [1985] 1 WLR 647 -652 HL where Lord Fraser was giving guidance to appellate courts in relation to reviewing the exercise of discretion. It is possible - - and in my experience Miss Day is not alone - - that practitioners are adopting "the generous ambit" test as the proper approach the Court of Appeal should take to reviewing findings of fact, in reliance on the language used by Ward LJ in Assicurazioni Generali SpA v Arab Insurance Group [2002] EWCA Civ 1642. The judgments of the court in that case, in particular the judgment of Clarke LJ now Master of the Rolls, does give guidance as to the role of the Court of Appeal when faced with appeals on fact. But the language of Ward LJ can sometimes be understood to equate the test applicable to the exercise of discretion with the approach of this court to findings of fact. I would emphasise that an appeal on fact is not concerned with reviewing the exercise of a judge's discretion. It is not because there is room for two views of the facts that the Court of Appeal is less inclined to interfere with the judge's conclusion as compared, for example, to his or her views on points of law. The finding of fact is a finding that, on the balance of probability, something actually existed or an event actually occurred. The deference that a court pays to a judge's findings of fact stems from the advantage that the judge may have had in the trial process, of seeing the witnesses, having a greater feel for the atmosphere of the trial and matters such as that. We have interfered in this case because we were in as good a position as the judge in relation to the photographs on which he founded his judgment. But what I urge practitioners to do is not to confuse the approach to reviewing an exercise of discretion with the approach to reviewing a judge's findings of fact. As I have said, I would allow the appeal for the reasons given by my Lord.

20. LORD JUSTICE CARNWATH: I agree that the appeal should be allowed for the reasons given by Maurice Kay LJ. I agree also with the comments by Waller LJ on the inappropriateness in this context of references to Tanfern. As I understand it, the approach of this court to reviewing findings of primary fact is the same as it has always been.
21. I would add two comments on the facts of this case. The judge, as has been said, relied on his interpretation of the photographs at paragraphs 574 and 540 reinforced by the evidence of Mr Aiken. Mr Aiken was the City Council's street works inspector and, as such, would be expected to be a useful independent witness. However, the judge made no reference to the context of his evidence. He visited the site in July 2003, over two years after the accident. He had been provided with two photographs, which he said identified "the defect". The two photographs in fact appear to be related, to my untutored eye, to photographs 1 and 2 on page 574, which we were told had been taken by a friend of the claimant. We do not know whether the claimant was there when they were taken, and they were not proved in any normal sense. As I understand the record of the claimant's evidence, 1 and 2 were not thought by her to represent the same defect. It is not clear from Mr Aiken's evidence whether he realised that at the time of the accident there were, according to the claimant, three or four defects of a similar type to the one which caused her accident, and that there had been concreting works in the intervening period which resulted in only one defect remaining. Mr Aiken's other source of information was a letter from the claimant of 19th June 2003, which put the accident outside First Degree Hair Design, and made no reference to the existence of more than one defect. It is not surprising, therefore, that when he visited the site and found only one defect (which was outside the optician's) Mr Aiken assumed that it was the relevant defect and he took photographs of it. However, in my respectful view, it was quite wrong for the judge to jump to the conclusion that it was the same as any of those shown on page 574, at least without a more detailed analysis.
22. The other point is the curious incident of the telephone boxes. As has been pointed out by my Lord, it is to my mind (in spite of Mr Cliff's reluctance to concede) impossible to reconcile the sketch plan prepared by Mr Gilbert with the photographs taken by him. Perhaps at that stage it was not realised how significant the precise position of the phone boxes would become. In the cross -examination of the claimant it is evident that she regarded the phone boxes as very important in identifying the position of the accident. That could perhaps have been apparent from her statement, dated 30th August 2005, to which was appended (LMM3) a sketch plan of her own, on which she put the position of the "metal stump" with a large asterisk, and also the position of the phone boxes, clearly in front of the optician. It is evident, at least from her cross -examination if not before, that that was an important factor to her in identifying the position of the accident. I find it most surprising that, in the period since that became an important issue, none of the legal advisers on either side seems to have visited the site to check whether the position of the phone boxes as shown on the plan was correct. I am told that the site is only 20 minutes away from this court. The time and expense spent by the parties, and indeed by three Lord Justices, could perhaps have been saved by a short taxi trip to the site, which might have led to the case being resolved by agreement.

(Appeal allowed; the Respondent is to pay the Appellant's costs in the appeal and in the court below).