The recent case of Clements-Siddall v Dunbobbin Hotels Limited [2023] EWCA Civ 1300 is a rare example of when a court has been prepared to allow an appeal on the basis that the Judge's finding on the facts was plainly wrong.
The Court of Appeal had to consider whether the location of the Claimant's accident at a spa pool was an agreed fact between the parties and whether it was open to the Judge in the court below to make a different factual finding.
Background
This is an interesting case on procedural unfairness, but the background is distressing. On 1 January 2017, Dr Susannah Clements was staying at the Defendant's hotel. She was staying with her partner (now husband), Mr Siddall. She was 25 weeks pregnant with their unborn child, the Appellant. While she was relaxing at the hotel in the outside garden area by the spa pool, she fell ("the Accident"). Dr Clements brought the action as the Appellant's mother and litigation friend. The Appellant alleged that the Accident was caused by negligence and breach of duty on the part of the hotel, and that the hotel's negligence or breach of duty caused her unborn child to suffer serious injury. The Appellant brought the case pursuant to the rights conferred on him by section 1 of the Congenital Disabilities (Civil Liability) Act 1976.
The Appellant's case was that Dr Clements fell from an unprotected leading edge of an area of raised decking that ran alongside the spa pool. The Particulars of Claim described the scene at paragraphs 8 to 10:
"8. The jacuzzi was positioned above ground level and was accessed by a set of 3 steps with a central handrail running through the middle of the steps. The steps led to a raised platform/the edge of the jacuzzi.
9. To the right of the platform/Jacuzzi was a raised decking area, at a further step up from the jacuzzi level, which was 800mm wide and 725mm high from ground level (hereafter "The right raised decking"). There were hooks on the wall, to the right of the jacuzzi, at the edge of the right raised decking area, which were intended for spa users to hang their robes whilst they used the jacuzzi.
10. The front of the jacuzzi platform and right raised decking area were unguarded and left exposed. ... The absence of a guard rail presented a drop from the edge of the right raised decking area of approximately 725 mm to the artificial grass at ground level."
The arrangement of the steps and exposed edge of the spa pool are somewhat confusing. For PI practitioners with an interest in steps and staircase claims, it is worth examining the photographs (and I have rarely seen photographs produced in a judgment). After a trial of the preliminary issue of breach of duty, the Judge held that the Accident did not happen in the location or in the manner contended by Dr Clements. He found that Dr Clements had missed her footing whilst on the stairs to the spa pool. He rejected the claim on the basis of that finding. However, the Judge held that if he had found in favour of the Appellant on the circumstances of the Accident, he would have found in favour of the Appellant on the issue of breach of duty, because the raised leading edge of the raised decking was not guarded.
The Appellant appealed on two grounds:
- He contended that where the Accident happened was an agreed fact between the parties, therefore it had not been open to the trial Judge to make a different factual finding.
- Even if the Judge had been entitled to make that finding, the finding was wrong.
Relying on what the Judge said he would have found if the Accident had happened where Dr Clements contended, the Appellant submitted that the Court of Appeal should substitute a finding that the Accident was caused by a breach of duty by the Defendant.
Decision on appeal
The Appeal was allowed. Whilst paragraph 1.4 of the Case Summary stated that "the exact circumstances leading up to and how the fall occurred are in dispute" and the issues in dispute listed in paragraph 3.1 included that "the series of events leading to and including the fall are also in dispute", neither of these paragraphs stated that the location from which Dr Clements fell was in dispute.
Considering the Case Summary in the context of the pleadings, the witness statements, and the experts' reports, there was only one reasonable interpretation of paragraphs 1.4 and 3.1 of it: the point at which Dr Clements fell over the edge was not an issue in dispute. The relevant site was consistently identified by the Particulars of Claim and Dr Clements' witness statement with its annotated photograph showing the leading edge of the raised deck area. The outstanding dispute therefore concerned the exact circumstances leading up to the fall and how the fall occurred i.e., whether Dr Clements took a step before falling and whether she slipped or lost her balance. The skeleton arguments for the trial also supported this conclusion. Therefore, at the start of the trial, the point at which Dr Clements fell was no longer in issue between the parties.
After Dr Clements had finished giving her evidence, there was nothing arising in the remainder of the evidence to indicate that there was a live issue about exactly where she had fallen. It was not until the Defendant's closing submissions that the existence of an issue was even identified. The issue was subsequently treated as live, and submissions were made on it. It was held that allowing the issue to be raised was prejudicial to the Claimant as its admission put the cross-examination in a different light, namely one that shone light not just on the mechanism of the fall but also on where Dr Clements was when she fell over the edge. Crucially,
"While the conduct of this trial could not be described as a disorderly-free-for all, the late admission of the issue means that the evidence of the witnesses was given and heard on one basis (i.e. that the place where Dr Clements fell over the leading edge was agreed), but subsequently came to be challenged on a different basis (i.e. that it was not)" [94].
Admitting the issue so late in the day had changed the shape and balance of the case. The court therefore held that the decision to admit and decide the issue was procedurally unfair and wrong, despite the absence of objection at the time. Moreover, there was no reliable evidence that Dr Clements had ever said that she fell on the stairs and so the central tenet of her cross-examination, and the central evidential basis for the judge's finding (the typed note) was wrong. Additionally, the Judge failed to give any proper consideration to Mr Siddall's evidence or, if he did, he provided no reason for rejecting that evidence. The Judge also did not give any reasoned consideration to the likelihood of Dr Clements failing to take hold of the handrail that was immediately adjacent to her if, as he found, she missed her footing on the stairs. The judge gave no reason for rejecting that aspect of her evidence; nor did he consider the implications for the case as a whole if that aspect of her evidence was accepted as the correct one.
Practical Implications
The courts are reticent to overturn cases on a finding of fact, but this is a rare example of such a case. On the question of the location of the fall, the Judge relied almost exclusively on a contemporaneous note which was plainly unreliable. Practitioners should be alive to the significance of case summaries in this Appeal – and should be mindful of the significance that they might carry, when viewed in tandem with pleadings and witness statements. The same caution should be applied to skeleton arguments. By the time a case reaches trial, the parties and their respective legal teams should be absolutely clear on which issues remain in dispute.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.