England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
His Honour Judge Platts
5LV10906

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/10/2009

Lord Justice Rimer :

Introduction

1. This is my reserved judgment on a renewed, oral application for permission to appeal, Pill LJ having refused permission on the papers on 22 May 2009 on the basis that an appeal had no real prospect of success.
2. The background is as follows. Miss Shehnaz Somjee is the claimant/applicant. The defendant/respondent is Barnsley District General Hospital NHS Foundation Trust ('the Hospital'). Miss Somjee's claim, in Liverpool County Court, was for compensatory damages for a tripping injury she suffered on 5 February 2002. Her claim proceeded in Liverpool County Court. On 25 February 2008 His Honour Judge Platts directed that liability should be tried as a preliminary issue. The liability trial took place, also before Judge Platts, on 10 November 2008 following which he reserved judgment until 21 November 2008. He gave judgment for the Hospital with costs and refused permission to appeal. Miss Somjee represented herself at the trial. The Hospital was represented by counsel. I must summarise the issues and the judge's findings and conclusions.

The issues and the judge's findings and conclusions

3. Miss Somjee was, at the time of the accident, a locum consultant in otolaryngology and head and neck surgery at the Hospital, as she had been since October 2001. At about 7.15pm on 5 February 2002, in darkness, she was walking from the Hospital to her room in the doctors' residence. That took her along a paved pathway at the rear of residence blocks 13, 14 and 15, her room being in block 15. Her case was that she tripped on a raised flagstone and fell heavily. She claimed the pathway was not properly lit. She blamed the Hospital for the accident.
4. The judge found that the pathway was well used, both in daylight and darkness. Miss Somjee claimed that the accident happened outside block 14, her left foot becoming caught in a raised flag. She was in pain, was helped by Dr Favre into block 13 and did not pause to see what had caused the fall. Her evidence was that the following day (6 February) she returned to the scene and identified two flags that might have been responsible, but could not inspect them closely because of the pain in her knees. One of them was the flag upon which at trial she fixed the blame. The other was a little further along the path and her evidence was that her attention was drawn to it by scratch marks which she believed were caused by the zip or buttons on her coat as she fell. She did not suggest that that flag was raised in any way but did regard it as on the shortlist of the flags that had caused her injury. On the same day, she completed an accident report, saying she had tripped on a raised, uneven paving stone and that she was wearing flat, comfortable boots.
5. On 7 February Miss Somjee had another look at the path and identified the flag that she asserted at the trial was the culprit. She noticed two things about it: (i) a niche or indentation in its raised edge; and (ii) black debris in the niche, which she believed came from her boot, also damaged in the accident. On 18 March she returned to the scene and was 'triple sure' that this was the offending flag. She measured its height above the adjacent stone as being one inch. Her evidence was that it was then that she took the photographs on which she relied at trial although the judge said that in answer to a Part 18 request she had suggested that she took them in May 2002.
6. Having outlined that background, the judge considered what had caused the trip. Whilst specifically disclaiming any suggestion that Miss Somjee was in any way dishonest in her evidence, he did not accept her recollection as accurate. It was not until she gave oral evidence that she said she had inspected the path three times, that she had measured the flag with a ruler, that there was a niche in it (although she had said in her witness statement that she had felt 'the boot stick into it and could not get it out') or that within two days of the accident she had seen the black debris from her boot in the niche. None of that was mentioned in her very full witness statement of 30 March 2006, prepared at a time when she was represented by solicitors (with whom she is now in dispute and whom she accuses of conspiring to defeat her claim). The judge found it surprising that such important matters were only raised for the first time over six years after the event. He was not satisfied there was a niche in the raised edge of the flag, still less that boot debris was found within it. He regarded this as highly unlikely in the light of all the evidence, including Miss Somjee's photographs.
7. Nor did the judge accept Miss Somjee's evidence that she had measured the flag as raised by one inch. A tripping hazard of that dimension would have been obvious to anyone looking for it. In paragraph 11 of his judgment he gave four reasons for being unconvinced by Miss Somjee's evidence. First, Miss Somjee had walked along the path regularly since October 2001 and had never noticed any defect in the pavement even though she admitted she looked carefully where she was going. Second, if there was a 'trip' of over one inch, it was inconceivable that she could not identify the flag on the following day. Instead, she had a shortlist of two flags, one of which she admitted was not raised. Third, she relied on the measurement of a mark on her boot, which she produced in court and showed to the judge. He was not satisfied that there was debris from the boot in a niche in the flag, He considered it probable that the mark on the boot 'was either a coincidental scuff on her boot or created after the trip and as she fell. In my judgment it is not a reliable indicator of the height of the raised flagstone'. Fourth, he was unconvinced that the photographs identified any obvious hazard. Whilst he cautioned himself that photographs can be deceptive, they did not apparently show a trip of over one inch, as Miss Somjee accepted, although she said that in reality the trip was much higher. The judge was not convinced by that.
8. Mr Howorth, the Hospital's estates manager, gave evidence and the judge found him to be a credible and impartial witness. His evidence was that the Hospital had an ongoing maintenance programme whereby paths and roads were inspected with a 'common sense' approach. If a risk is identified, it would be assessed and appropriate repair work sanctioned. He said that his inspectors would walk the path every day and if they had seen a flag of one or one and a half inches out of level, they could not ignore it. His evidence was, as I interpret what the judge held, to the effect that the defect relied upon by Miss Somjee was one that would have been identified as a hazard if it had been of the dimension that she asserted. No inspection of the path was carried out after her accident. The only work since done to it was after July 2002, when the area was redeveloped.
9. The judge's conclusion on the accident was that, whilst he accepted that Miss Somjee tripped over a raised flag, he rejected her evidence that she measured it or that the mark on her boot was indicative of the flag's height. Her photographs showed a wholly unremarkable scene with no obviously identifiable hazard. In addition, following the accident Hospital did not to do any work on the part of the path where the accident happened. The judge rejected as without foundation Miss Somjee's assertion that the redevelopment work carried out after July 2002 was a deliberate cover up. The judge's conclusion was that 'although any difference in height will represent a hazard, this was a very minor tripping hazard'.
10. The judge turned to whether, as Miss Somjee claimed, the path was badly lit. This depended on whether a nearby street light was on at the time of the accident. He found it was not and accepted her case that the area was poorly lit.
11. He then dealt with complaints by Miss Somjee that the Hospital had deliberately withheld information and evidence with a view to defeating her case. He rejected as evidentially unsupported the assertion that there had been any such withholding; he had already rejected her point about the redevelopment of the path. He rejected as unproved an assertion that the Hospital had had a hand in the disappearance of Dr Favre, so preventing Miss Somjee from calling him as a witness. He rejected as unproved an assertion of collusion between the Hospital's solicitors and Miss Somjee's former solicitors; and also the allegation that the Hospital's solicitors had tried to 'bully' Miss Somjee in the lead up to the trial. The judge said all these allegations were 'extremely serious … [were] all unsupported by any evidence and appear to me to have no basis in fact'. He said the very fact that she made them seriously undermined her credibility, and he had taken them into account in assessing the reliability of her evidence.
12. The judge turned to the legal basis of Miss Somjee's claim, namely that the pathway was not 'suitable' for the purposes of regulation 12(1) of the Workplace (Health, Safety and Welfare) Regulations 1992, was 'uneven' so as to expose a person to a health or safety risk under regulation 12(2) and raised an 'obstruction' that might cause a fall contrary to regulation 12(3). After referring to the guidance on Regulation 12 given by this court in Marks and Spencer Plc v. Palmer [2001] EWCA 1528 by Waller and Schiemann L.JJ, the judge held that although the flag was raised, it had only amounted to a minor hazard not involving any breach of regulation 12.
13. As for lighting, the judge held that, given his earlier finding, there was a breach of regulaton 8 in relation to the obligation to furnish every workplace with suitable and efficient lighting. He was not, however, satisfied that the inadequacy of the lighting was the cause of the accident. Miss Somjee had regularly used the path and was always concerned to look where she was going. She had never noticed the raised flag before or thought she had to deviate to avoid it. She had difficulty in the daylight in identifying it. Any lighting would not have put her in a better position than she would have been in daylight. Thus she would not have seen the flagstone or walked any differently if the area had been lit.
14. Finally, the judge held that, even though it was accepted that no risk assessment pursuant to regulation 3 of the Management of Health and Safety at Work Regulations 1999 had been carried out, there would, for reasons given, have been no difference to the outcome. For the same reasons, he held that the Hospital had discharged its duties under the Occupiers Liability Act 1957. He dismissed the claim.

The grounds of appeal

15. 29 grounds are raised. Ground 1 is that the judge referred in his first sentence to the accident having been on 5 February 2005. It was of course on 5 February 2002. Thus it is said he was discussing a non-existent accident, an error that undermined his entire judgment.
16. There is nothing in this point. Other parts of the judge's judgment show that he knew perfectly well that the accident happened in 2002, not 2005 (see paragraphs 5 to 9), and his error in the opening sentence was a human slip of a kind that everyone will be likely to make from time to time (for all I know, although I have endeavoured to proof-read it, there are like slips in this judgment: proof-reading one's own work rarely picks up all mistakes). Miss Somjee herself, in her letter to the Civil Appeals Office of 14 May 2009 (written in the context of a question as to when the time for filing her appellant's notice expired) asserted that 'The order was sealed on 24^th December not 21^st December therefore 15^th is the correct deadline for [the appellant's notice]'. (Miss Somjee's emphasis). In so asserting, Miss Somjee was wrong, because the order was sealed on 24 November. She of course knew that but was here making an obvious and inconsequential slip of which she was oblivious. She was not referring to a non-existent order. She was making an immaterial misdescription of an actual order. The judge's error was of a like, immaterial kind. There is nothing in ground 1. The suggestion that this court would set his order aside on the basis of such an error is hopeless.
17. It is, however, fair to note that in her oral argument, Miss Somjee rightly did not press ground 1 with enthusiasm and focused rather more fire on the further point made about the Judge's error in ground 2. Its essence, as she explained it, was that if it was acceptable for the judge to make a slip of that sort, it was similarly acceptable for her to make a like slip as to when she took her photographs of the scene. As to that, whereas in her evidence she said that she took them on 18 March 2002, the judge had noted in paragraph 8 of his judgment that in answer to a Part 18 request she said she had taken them in May 2002. She said the judge ought not to have held this against her because she had made the point in her oral evidence that May was a mistake for March. Her error was a mere slip. In fact, the judge appears to have made another mistake in paragraph 8 because the document to which he was referring did say that the photographs were taken in March 2002. Again, Miss Somjee did not pick that point up in her ground 2 and so made another slip of her own. She also made a further slip there, wrongly referring to 2005 rather than 2002. In saying what he did in paragraph 8, the judge may perhaps have had in mind that the document to which he was referring also asserted that the 'defect' (I presume a reference to the offending flag) was measured in May 2002, whereas Miss Somjee's evidence was that she measured it in March 2002. If so, the judge's paragraph 8 did correctly identify a dating error, but misdescribed it.
18. I consider that too much can be sought to be made of this point, and I am conscious that I have probably already devoted more space to it than it deserves. That is because it is wholly improbable that the 'May 2002' point had any material influence upon the judge's rejection of Miss Somjee's evidence as to the cause of her fall. He gave a full explanation of his several reasons for that rejection and they did not include the 'May error', which he probably recognised could well have been one by Miss Somjee's solicitors in misunderstanding or misrecording her instructions. There is in my judgment no prospect of the full court on an appeal concluding that the 'May error' point undermined the integrity of the judge's reasoning for his findings as to the soundness of Miss Somjee's evidence about the fall and its cause. Ground 2 discloses no sound basis for a challenge to the judge's conclusion on the facts.
19. Grounds 3 to 11 are directed to the same general point, namely that the judge should not have conducted the liability trial at all because he had, it is said, formed an adverse view of Miss Somjee's case at an interlocutory hearing on 15 December 2006 and a case management conference on 25 February 2008. Miss Somjee accuses him of bias. To explain this, I must first explain the background to the December 2006 hearing.
20. Miss Somjee (then represented by solicitors) commenced her claim on 7 February 2005 (just outside the limitation period, although the Hospital took no point on that). She retained Mr Pennie, a consultant orthopaedic surgeon, as her expert. He provided his report on 17 August 2005 and Miss Somjee had permission to rely on it. She provided further records to Mr Pennie, who on 9 November 2005 said there was no change to his opinion. Further records were sent to him on 28 November 2005, coupled with some criticism of his report, to which he responded. In the meantime, the Hospital had obtained its own expert report from Mr Braithwaite. In compliance with a court direction, both experts produced a joint statement which they had both signed by 7 April 2006. The joint report recorded that both agreed that:

'… the accident served to precipitate the onset of symptoms from a vulnerable but previously a-symptomatic neck. The difficulty comes in trying to estimate when she might have had symptoms in any event. Both are aware of the wide-range of medical opinions that could be voiced in these circumstances, but would agree that the extremes of opinion, at one end where the trauma is seen as almost coincidental, and at the other extreme where it is seen as almost entirely causal, are both untenable'.

21. On 2 March 2006 – when the joint report was expected but had not yet been produced – there was a case management conference before Deputy District Judge Fordham. Miss Somjee's solicitor told the court that she was dissatisfied with Mr Pennie's assessment of her neck injury. He then made an unheralded application to Judge Fordham for permission for Miss Somjee to engage another expert. The judge refused permission. He also refused permission to appeal and no attempt was made to appeal his order. Miss Somjee nevertheless on 9 March 2006 instructed Mr Bannister to provide a further report, which he did. He examined Miss Somjee on 15 May 2006 and produced his report on the same day. He concluded that:

'The effect of the injury of the 5^th April 2002 [sic: another misdescription of the date] has been to prevent her working in a speciality in which she was trained on a regular basis since that time. The outlook is poor.'

22. There was then a case management conference before District Judge Johnson on 1 June 2006. Without prior notice to the Hospital or having even served Mr Bannister's report, Miss Somjee's solicitor sought permission for her to use that report. The judge was taken through it and the effect on the potential for Miss Somjee's case was made clear to her. The point was made that Miss Somjee now had a report that favoured her case, whereas hitherto she had not. That was said to be a change of circumstances justifying permission to use the new report. The judge ruled against her, taking the view that Judge Fordham had ruled on the matter in the decision of 2 March 2006, Miss Somjee had not sought to appeal that ruling and there had since been no material change of circumstances.
23. What came before Judge Platts on 15 December 2006 was Miss Somjee's application for permission to appeal against District Judge Johnson's order of 1 June 2006. She was represented by Mr Rankin. Judge Platts refused permission. He explained his reasoning in a 41-paragraph judgment which was a model of clarity and thoroughness. He first set out the background, concluding in paragraph 23 that Judge Johnson was entitled to conclude that there had been no material change of circumstances. But he was also satisfied that Judge Johnson had not considered the merits of the application to rely on the Bannister report. Judge Platts explained that in the meantime Mr Bannister had produced a further report on 14 August 2006, having by then considered Mr Pennie's report. In his further report, Mr Bannister asked himself whether Miss Somjee 'would have developed neck pain on the balance of probability for constitutional reasons', a question which Judge Platts said he did not then specifically answer. The judge's assessment of his report was that:

'25… although it can be inferred from that [certain matters Mr Bannister referred to] that he may be supporting the claimant's case to an extent, he certainly does not say so in terms. Nor does he say in terms that he disagrees with either Mr Braithwaite's or Mr Pennie's assessment. In my judgment, he has not answered the question that he had posed himself, except by inference. It does not seem to me, therefore, that Mr Bannister's report is so strongly supportive of the claimant's case as it is now put or as she would perhaps hope, and it is perhaps of some significance that nowhere in his report after he has considered Mr Pennie's reports – and I assume he was sent all of them – nowhere does he criticise Mr Pennie's approach to the case; be it is his examination; his history taking or; [sic] his reference to the medical records. He merely seems to put forward yet another opinion, as I have said, by way of inference rather than specifically.'

24. Judge Platts turned to consider how he should do justice between the two parties. He referred to the overriding objective, to CPR Part 35, to the court's duty to control the expert evidence and to the decision in Stallwood v. David & Another [2006] EWHC 2600 (QB), in which Teare J made some observations as to the approach to the type of issue before Judge Platts, who distilled from it that he had 'to look to see what good reason is put forward for the change in expert, or the proposed change in expert'. He said the only reason advanced to Judge Johnson had been Miss Somjee's dissatisfaction with Mr Pennie's opinion.
25. Judge Platts then correctly reminded himself that on an appeal against Judge Johnson's decision, the court's function was merely to review that decision and that it would not ordinarily accept additional evidence. Despite that, Miss Somjee's solicitor had placed before the court, in advance of the hearing and without permission, a 53-paragraph witness statement from Miss Somjee. Judge Platts said that was symptomatic of her solicitor's approach to the litigation. He had, however, read the statement de bene esse. He summarised it and went on to make certain observations including two that are at the heart of Miss Somjee's bias case. I should quote the relevant part of Judge Platts' judgment, and have emphasised the parts on which Miss Somjee particularly relies:

'30 … it [the witness statement] does disclose an interesting approach from the claimant. The claimant now says there are a number of matters about Mr Pennie's conduct of this case with which she seeks to take issue. I will just go through the headings. She alleges inadequate history taking; inaccurate presentation of history; failure to carry out a full examination; failure to examine the scar on the elbow; inaccurate handling of facts.

31. She then seeks to deal with differences between whiplash injury and degenerative disease, which is probably more a matter of expert evidence than her own factual evidence. She then deals with invention of symptoms by Mr Pennie; spurious findings on examination; spurious transformations of fact; expressing opinions on x-rays which he had not seen – (he had, in fact, seen the x-ray when it was sent to him in December) – false report on the x-rays; intervention of correlations; selective manipulation of facts; taking statements out of context; unfounded statements; failure to comment on refusal to provide timely treatment; unfounded and spurious vulnerability; inadequate medical knowledge; opinion not based on medical facts or literature, and then she reaches her conclusion. She also criticises his conclusion in relation to the knee injury, which is not really relevant to this appeal.

32. Now, I do have some sympathy with Miss Somjee. She clearly and genuinely believes that her continuing complaints in her neck are caused by this accident, and she clearly, as a result of that, does now have some genuinely held dissatisfaction with Mr Pennie's conclusion, and those have now extended to dissatisfaction with Mr Pennie's examination and report. It is perhaps not without significance that she added to that dissatisfaction only at the hearing today when she further alleged, unsupported by any evidence before me, that Mr Pennie is approved by the NHSLA, the organisation which I assume are interested in defending this action.

33. In my judgment, it seems to me that the witness statement does give some indication of her own approach to this litigation. In my judgment, her view is clearly clouded by her close involvement with the case and I have to consider against that background whether I am persuaded that there are good reason [for] her to change experts, and I have to say that I am not persuaded that there are good reasons put forward. In the absence of any criticism of Mr Pennie by Mr Bannister or from any other independent source, it does not seem to me that I can accept the criticisms of Mr Pennie which are now put forward by Miss Somjee in her witness statement. For those reasons, it seems to me that really it does come back to the issue that was before District Judge Johnson, simply that the claimant was not satisfied with Mr Pennie's ultimate conclusion and now seeks to put forward an alternative expert who reaches a different conclusion.

34. I have then to balance the justice between the parties. As I said, in the claimant's favour she believes her symptoms are all as a result of this accident. If she can prove that, and, of course, if she can prove liability which remains in issue, her claim has a considerable potential and it seems, on the schedules I have seen, that it would be in excess of £600,000. So it is of the utmost importance to her that this evidence is put forward if the case as she wants it to be advanced can be advanced before the court. Clearly, on Mr Pennie's evidence, the case is [of] significantly less value and probably, although I have not done the maths, may well be within the £50,000 limit that the claim currently has.' (Emphasis supplied in both cases)

26. Over the remaining seven paragraphs of his judgment, Judge Platts gave careful consideration to the factors that weighed with him as to whether justice required that Miss Somjee should or should not be entitled to rely on Mr Bannister's opinion. The outcome was that, whilst he gave permission to appeal against Judge Johnson's decision (on the basis that she had failed to consider the merits of Miss Somjee's application), he exercised his discretion in the same way that she had done and dismissed the appeal. His reasons for doing so were cogent ones and it is no surprise to me that on 2 October 2007 Gage LJ refused Miss Somjee permission for a second appeal to this court. That, however, was not the end of the story: Judge Platts' decision is currently the subject of a challenge by Miss Somjee in the European Court of Human Rights ('the ECtHR') on the basis that it infringed her rights under Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms ('the Convention').
27. In ground 3 Miss Somjee opened her criticism of Judge Platts by asserting that he was already biased against her by the time of the liability trial. With reference to his judgment of December 2006, she asserted that 'he had already made up his mind about [her] evidence (which was medical in nature and he is not a doctor himself) as documented in that judgment'. She further asserted that '… he had also in his mind decided this liability matter as expressed by his tone of voice when he referred to it. This violates the guarantees of a fair trial under Art 6(1) of the [Convention]'.
28. These assertions are, in my judgment, without foundation. Miss Somjee drew attention to the two passages I have emphasised in the citation from Judge Platts' judgment. As to the first passage, I have read Miss Somjee's witness statement that was before Judge Platts. It was devoted to an extended attack on almost every aspect of Mr Pennie's performance as an expert; and, in part, to advancing her own expert views. The judge's comment that 'her view is clearly clouded by her close involvement with the case' was, I consider, a justified one. He was essentially saying no more than that Miss Somjee's passionately advanced case in her witness statement in support of her bid to engage a second expert was of a nature that, because of her personal involvement as claimant, involved a less than objective assessment of the question. The judge then went on to balance the considerations that he considered had to be taken into account.
29. In my judgment Judge Platts' remarks in paragraph 33 do not begin to manifest bias on his part. They were a proper judicial observation made in the course of his consideration of the resolution of the issue before him. The further matter to which Miss Somjee refers in her bias assertion is the remark that I have emphasised in paragraph 34 of Judge Platts' judgment. The point made is that, because he expressly referred to the fact that quantum would only be relevant if Miss Somjee proved liability, he was there uttering his own opinion, already arrived at, that she would not prove liability.
30. Judge Platts said nothing to suggest that he had already decided that Miss Somjee would not establish liability. He was merely reminding himself that quantum would only be relevant if liability was established. In developing her argument on this, Miss Somjee said it was Judge Platts' tone when he uttered these particular words that reflected his apparent bias. She said they reflected apparent doubt on his part as to whether liability could be established. She said he placed emphasis on the 'if'.
31. This point is, in my view, groundless. The suggestion that by those words, and in the manner of their utterance, Judge Platts conveyed that he had already formed his own view that Miss Somjee would fail on liability is, with respect, fanciful. The likelihood that Judge Platts focused any thought at all on the outcome of the liability issue is close to zero. Judge Platts was concerned only to decide an issue as to expert evidence. The expert evidence would in fact only be material if liability were first proved; and the fact that the Hospital had proceeded, in common with Miss Somjee, to obtain its own expert evidence on quantum reflected that it recognised that Miss Somjee had a serious claim on liability. Plainly, the Hospital did not regard the liability issue as hopeless. On what rational basis, therefore, and by reference to what material, is Miss Somjee suggesting that Judge Platts had decided that she would fail to prove liability? Why should he even have bothered to think about it? It was not an issue before him.
32. There is, therefore, in my judgment nothing in Miss Somjee's case that Judge Platts manifested bias against her on 15 December 2006.
33. Ground 4 asserts that because Judge Platts said in paragraph 1 of his judgment of November 2008 that 'She has raised a number of issues as a result of which this judgment is longer than it might otherwise have been', reflects that 'he had his judgment pre-written in mind well in advance of the trial'. It indicates no such thing and this point merits no further consideration.
34. Grounds 5 and 6 make generalised assertions that Judge Platts did not give Miss Somjee an 'independent trial' and that justice was not seen to be done. Miss Somjee does not, however, make any of those assertions good. If she wanted to do so, she would at least have to have obtained a transcript of the proceedings to identify of what it is that she is complaining. She has not done so.
35. Grounds 7 to 11 assert that Judge Platts should not have conducted the liability trial. Miss Somjee there said that he knew his judgment of 15 December 2006 was being challenged before the ECtHR. She referred next to a hearing before Judge Platts on 25 February 2008 at which he refused her application for disclosure of documents for the purposes of the ECtHR proceedings. She complains that 'the Transcript of Proceedings of that hearing' omitted that refusal and that, despite her request, the judge had refused to correct the omission. She says this raises serious questions about Judge Platts as a judge. I must therefore go back to 2006 again.
36. Following Judge Platts' order of 15 December 2006, the proceedings were stayed pending Miss Somjee's unsuccessful challenge to that order before this court on 2 October 2007. They were then revived, but Miss Somjee applied for a further stay pending her appeal to the ECtHR. That was refused on the papers on 18 December 2007 by His Honour Judge Stewart QC and renewed by Miss Somjee (by then acting in person, having fallen out with her solicitors) before Judge Platts on 25 February 2008. Judge Platts gave a judgment explaining why he refused to order a further stay and a transcript of it is with the papers before me. I need not rehearse his reasons for that decision beyond saying that they were measured and cogent. He then had to consider what form the action should take. Miss Somjee was (despite the order of 15 December 2006) still seeking to rely on Mr Bannister's evidence and was claiming that there was yet further evidence from him that the court would need to consider. She also wished to rely on the evidence of Mr Newman, who was I understand another expert, for which she had not yet got permission. The judge took the view that, in the light of Miss Somjee's intentions, it could not be said that the evidence relating to quantum was yet ready for trial and so the right course was to direct a trial on the issue of liability only, which is what he did, and he gave appropriate directions. That decision appears to me to have been a sensible and practical one.
37. There is nothing in the transcript of that judgment or of the post-judgment discussion (which marked the end of the hearing) referring to Miss Somjee's failed application for an order for disclosure for the purposes of her ECtHR application. Her suggestion that the judge deliberately cut it out and refused to reinstate is one I am not prepared to accept. The transcript is not, as ground 7 asserts, 'the Transcript of Proceedings of that hearing', it is merely one of the judge's judgment on the stay application and, subject to that, on what trial directions should be made; and also of the post-judgment discussion. Miss Somjee's disclosure application was, I presume, the subject of a separate ruling, made earlier in the course of the hearing, being one of which she has not obtained a transcript. The point she makes as to Judge Platts' alleged lack of integrity is groundless.
38. Miss Somjee then, in grounds 8 to 11, builds on this to say, in short, that because of his involvement in the case in December 2006 and February 2008, that Judge Platts should not have judged the liability trial at all. That he did so was, she said, in disregard of his Article 6 obligations. He was faced with a conflict of interest and should have stood aside. Again, I respectfully regard all of this as equally misplaced. Judge Platts was not faced with any conflict of any sort. I can of course only judge his handling of the two earlier interim hearings before him by reference to the apparently careful and conscientious judgments that he gave. They display not a hint of bias and Miss Somjee has not pointed to a single incident in the course of the hearings that might support such an accusation. She also made the point, however, that as he had found against her on those occasions, he should for that reason not have conducted the liability trial but should have recused himself.
39. Again, there is in my judgment nothing in that either. I quite accept that if, for example, a judge tries a case in which he makes findings of dishonesty against the claimant ('C') and rejects his evidence as incredible, he might well consider it appropriate to recuse himself from a second action in which C is also a party. He would do so because C might reasonably consider that the judge would approach the case with a pre-conceived mindset that he was a dishonest man who was not to be believed. C would receive a trial which, objectively assessed, would appear to be fairer if the judge were a different one.
40. That, however, is not this case or anything like it. Miss Somjee was, perhaps unsurprisingly, unaware that it is extremely common, especially in major litigation, for the whole conduct of a claim – interim applications and the trial – to be assigned to one judge, who will handle it from beginning to end. In doing so, the judge will have to rule on just the sort of interim applications that Judge Platts did in this case and will necessarily have to make decisions adverse to one or other party. These applications will, as here, involve procedural matters. They will not involve the resolution of the issues of substance that will be fought out at the trial. Usually the judge will not hear any oral evidence from any of the parties until the trial itself – any more than, so I assume, Judge Platts heard evidence from Miss Somjee in this case before the trial. He did of course hear from her as an advocate, but in that role she would not (or should not) have been giving evidence.
41. There is in such circumstances ordinarily nothing unusual about the assigned judge also conducting the trial, although of course in any particular case circumstances may perhaps arise in which, for one reason or another, it would become inappropriate for him to do so. But in principle it will not be so inappropriate; and in this case there was, in my judgment, no reason for Judge Platts not to conduct the liability trial. He was faced with no conflict of interest; there was no reason why he could not conduct it fairly; nor was there any reason why he could or would be perceived as not conducting it fairly. Miss Somjee said that, nevertheless, she was convinced he was biased against her before the trial started, but deliberately chose to say nothing about it, partly because if he refused to stand down it would make the trial even worse for her. I understand the dilemma in which she may have regarded herself; and, had I considered that she had made any arguable headway with her accusation of bias against Judge Platts, I would not have regarded her deliberate silence as counting fatally against her. But she has not.
42. Grounds 12 to 24 level challenges at the judge's findings of fact and conclusions. It is said he drove a 'coach and horses' through the 1992 Regulations and that his findings on causation were against the evidence. In my judgment, Miss Somjee has no prospect of persuading the full court on an appeal that the judge was not entitled to make the findings that he did. He was not persuaded on the probabilities that her account was correct and he gave cogent reasons why. He had the advantage, which this court does not, of having heard the oral evidence and it was his job to assess it, as he did. Of course, Miss Somjee disagrees with his findings. But the Court of Appeal does not re-try the facts of a case. It will review a judge's finding on fact if there was no evidence to support it; or if it was against the weight of the evidence; or if it was perverse; or if it was just plainly wrong. But no criticisms of that sort can be levelled at Judge Platts' findings. Miss Somjee said the judge was wrong to say that key features she relied on at trial were not mentioned in her long witness statement of 30 March 2006. My reading of that statement confirms, on the contrary, that the judge was right in what he said: these matters were not mentioned in it.
43. Miss Somjee makes much of the injury to her boot sustained in the fall and asserts that the judge did not look at it: she said he only saw it held up at a distance of about 12 feet from him. I was handed the left boot, of which the toecap was scuffed. The judge (in paragraph 11c) correctly described the boot as having a 'scuff' on it and so he must have seen sufficient of the boot and its injury to be able so to describe it. But he rejected Miss Somjee's evidence that the scuffing of the boot left a residue of 'debris' in the niche of the flag. If Miss Somjee was using the word 'debris' in its ordinary sense, that finding was not only one that the judge was entitled to make, the likelihood is that it was right. It is improbable that the 'scuffing' I saw could have created anything that could fairly have been described as 'debris'. It might perhaps have left a mark on the flag, and it is fair to note that in paragraph 5 of her witness statement of 3 May 2006 Miss Somjee said that she 'noticed a black mark on the raised edge of the flagstone at the right height for my boot'. It is also correct that the judge did not refer to that piece of evidence in his judgment. But he was focusing on Miss Somjee's oral evidence, it was that evidence he was assessing, and he gave his reasons for rejecting it.
44. Miss Somjee, in ground 14, makes the point that the judge remained silent on Dr Varma's evidence. In fact he referred to it in paragraph 17, although did not explain it. That was no doubt because most of Dr Varma's evidence was irrelevant, apart only from what he had to say about the quality of the lighting in the area. As the judge accepted Miss Somjee's evidence that the path was poorly lit at the time, there was no need for him to review Dr Varma's evidence, and no doubt he did not do so because of its general irrelevance. In ground 17 Miss Somjee also asserts that the judge accepted all Mr Howorth's evidence, yet points out that the judge also found that the path was poorly lit at the time, which was inconsistent with Mr Howorth's evidence. She said his approach to Mr Howorth's evidence was therefore perverse.
45. It was not perverse. In his witness statement, Mr Howorth had said that it was not the Hospital's policy to turn the lighting off to save money and that it would be unusual for the lighting to be defective in this area. It is correct that the judge accepted Mr Howorth's evidence, including that piece of it. He also found, however, that at the time of the accident the path was poorly lit. There was nothing inconsistent, let alone perverse, in his acceptance of Mr Howorth's evidence and in his making that finding. Mr Howorth was not purporting to give evidence as to the lighting on the night of the accident. He was talking in general terms as to the lighting.
46. Ground 19 asserted that the judge exceeded his jurisdiction in his findings about the boot. It is said that, if he had reservations about it, he should have ordered a forensic examination of the boot. Again, there is nothing in that point. It was not for the judge to do any such thing. It was for Miss Somjee to prove her case and if she considered that an expert examination of her boot would have helped it, it was for her to have applied at an earlier stage of the proceedings to adduce the evidence of an appropriate expert. Ground 20 complains of the judge's rejection of the evidence in the photographs. There is also nothing in that. The judge made what he could of them, which was not much. I was shown them too and I could see why the judge said what he did about them.
47. Ground 22 asserts that it was irrational to find that the area was poorly lit, yet not to hold the lack of light to have been the cause of accident: this was because no other cause had been identified. Miss Somjee also pointed out that the judge had acquitted her of contributory negligence. The fallacy in that line of argument is that it proceeds from the basis that somebody else is always to blame for an accident. That is not the law. Causation must be proved and the judge gave cogent reasons for his conclusion why the poor lighting could not be said to be the cause of Miss Somjee's accident. His reasoning was obvious. If you regularly walk a particular path at morning, noon and night, you will know the hazards (if any) and know what to avoid. Miss Somjee had never seen this protruding flag before; and it was one which, if it existed, she could not fail to have seen because the judge found that she was always concerned to look where she was going.
48. Grounds 25 to 27 revert to pre-trial matters and complain with imprecision that Judge Platts was less than even-handed as between Miss Somjee and her former solicitors on the one hand and the Hospital and its solicitors on the other. The complaints really come back to an assertion of bias against Judge Platts, but the generalised assertions here advanced do not begin to make that case good; and the full court will not on an appeal trawl through the interlocutory history of this litigation to see whether something of possible help to Miss Somjee might turn up. Ground 28 advances a groundless assertion that Judge Platts' conduct was ultra vires. Ground 29 asserts that as Miss Somjee conducted the trial in person whereas the Hospital had solicitors and counsel, there was an inequality of arms and so yet another breach of Article 6. But what answer could there have been to the alleged inequality? I do not know whether Miss Somjee sought a public funding certificate for her case, or tried to pursue it via a conditional fee agreement, or whether she sought pro bono assistance. If she did all these things and drew blanks, she had no choice but to represent herself. If she did not explore them, or all of them, we do not know what the outcome might have been if she had.
49. In my judgment Miss Somjee's grounds of appeal disclose no arguments that, if permission to appeal were to be given, would have any prospect of success before the full court. Whilst I am well aware of her bitterness about the outcome of her claim, and towards everyone whom she believes played a part in that outcome, I am not persuaded that she should be given permission to appeal on any of her 29 grounds. I refuse her application.