Clements-Siddall v Dunbobbin Hotels Ltd

Breach of duty – Liability – Finding of fact – Fall of appellant’s mother while pregnant resulting in serious injury to him – Appellant claiming accident caused by negligence and breach of duty of respondent – Judge dismissing claim – Appellant appealing – Whether judge’s finding about where accident happened open to him – Whether judge’s finding wrong – Appeal allowed In January 2017, C was a guest at the respondent’s hotel when she was 25 weeks pregnant with the appellant. While staying at the hotel she fell after using the outdoor spa pool and she struck her abdomen. The appellant (acting by C) subsequently alleged that the accident was caused by negligence and breach of duty on the part of the respondent which had caused him to suffer serious injury. The appellant brought the case under section 1 of the Congenital Disabilities (Civil Liability) Act 1976. The appellant argued that C fell from the unprotected leading edge of an area of raised decking that ran alongside the spa pool. After a trial of the preliminary issue of breach of duty, the judge held that the accident did not happen in the place or in the manner alleged by C. He found that she had missed her footing while on the stairs from the spa pool. Based on that finding, he rejected the claim. However, he also held that if he had found in favour of the appellant about where the accident happened, he would have found in the appellant’s favour on the issue of breach of duty because the leading edge of the raised decking was unguarded. The appellant appealed contending that the judge’s finding about where the accident happened was not open to him because it was an agreed fact that the accident happened where C alleged. Further, even if the finding was open to the judge, the Court of Appeal should substitute a finding that the accident was caused by breach of duty on the part of the respondent. Held: The appeal was allowed. (1) It was fundamental to an adversarial system of justice that the parties should clearly identify the issues in the litigation, so that each had the opportunity of responding to the points raised by the other. Statements of case played a critical role in identifying the issues to be determined. The function of the judge was to adjudicate upon the issues identified by the parties alone to prevent the trial from becoming a disorderly free-for-all. The task of the courts was to do justice between the parties in relation to the way in which they had framed and prosecuted their respective cases, rather than to carry out some wider inquisitorial function as a searcher after truth: Dhillon v Barclays Bank [2020] EWCA Civ 619; [2020] EGLR 25 and Sainsbury’s Supermarkets Ltd v MasterCard Inc [2020] UKSC 24 considered. As in the present case, case summaries were typically negotiated and drawn up, or refined, after the close of pleadings and the exchange of witness evidence, both lay and expert, when the parties could and should liaise to ensure that the future conduct of the case was expeditious and fair. Once the case summary here was read in the context of the pleadings, the witness statements, and the experts’ reports, the only one reasonable interpretation was that the point at which C fell over the edge was not in issue between the parties and was the point consistently identified by the particulars of claim. What remained in dispute was the exact circumstances leading up to, and how, the fall occurred. (2) There was a high bar to surmount before the appeal court would overturn a finding of primary fact made by a trial judge. The judge had to be shown to be plainly wrong, or to have reached a conclusion that no reasonable judge could have reached on the available evidence, or that was rationally unsupportable. In the present case, overall the judge had misjudged the quality of C’s evidence and his criticisms of her evidence could not be justified: Staechelin v ACLBDD Holdings Ltd [2019] EWCA Civ 817; [2019] 3 All ER 429 considered. If, as appeared to be the case, the judge took no notice of her husband’s evidence and therefore gave it no weight, he did not provide any rational basis for doing so and his conclusion was wrong. The appellant had made good the central criticisms of the judge’s findings and supporting reasoning. There was no reliable evidence that C had ever said that she fell on the stairs and so the central evidential basis for the judge’s finding was flawed. On the other side, the judge’s criticisms of C’s evidence, which formed the second main basis for his overall conclusion, were not justified and wrong. (3) It was exceptional for the Court of Appeal to allow an appeal on the basis that a judge’s finding on the facts was plainly wrong. This was one of those exceptional cases; and it should not be taken as an encouragement to others to try to appeal where the stringent test for Court of Appeal to intervene was not met. Here, on the question of the location of the incident, the judge relied almost exclusively on a contemporaneous note which was manifestly on its terms unreliable.  He failed to have regard to the unchallenged evidence of one witness and dealt inadequately with the evidence of another. The judge himself considered that he could not accept the evidence of other witnesses as to where the incident occurred. In the circumstances, and exceptionally, there was no logical basis for his finding that the incident occurred on the steps. The only consistent, and in some respects unchallenged, evidence was that the incident occurred on the raised decking, from which C fell. There was no rational basis on which the judge could find otherwise. (4) Therefore, assuming the point was open to him, the judge’s conclusion that C lost her footing on the stairs was plainly wrong and should be reversed. He should have found that she fell from the raised decking area.  Had he done so, he would have found the respondent to have been in breach of duty in failing to guard the leading edge of that area and would unarguably have been right to do so. Judgment would be entered for the appellant on the issue of breach of duty. Marc Willems KC and Chloe Murray (instructed by Irwin Mitchell Solicitors) appeared for the appellant; Neil Block KC (instructed by Clyde & Co LLP) appeared for the respondent. Eileen O’Grady, barrister Click here to read a transcript of Clements-Siddall v Dunbobbin Hotels Ltd