Before a court will overturn a trial judge’s finding of primary fact the judge must be shown to be plainly wrong or to have reached a conclusion that either no reasonable judge could have reached on the evidence or one that was rationally insupportable.
In Clements-Siddall v Dunbobbin Hotels [2023] EWCA Civ1300, exceptionally, the Court of Appeal has overturned a decision on liability for breach of duty under the Occupiers’ Liability Act 1957.
On 1 January 2017 Susannah Clements, who was 25-weeks pregnant with the claimant, fell after visiting the outdoor spa pool at the defendant’s hotel with her partner. The pool was accessed by three steps, through which ran a central handrail, leading to a raised platform. To the right of the platform was a raised decking area of 720mm, beyond which there were hooks intended for spa users to hang their robes. The front of the platform and right raised decking area were unguarded.
Clements claimed that, while putting on slippers, her foot slipped forward uncontrollably over the raised decking area and she fell towards ground level, her bump striking the exposed edge of the second step. The defendant denied breach of duty or that the decking was slippery. It argued that the drop at the edge of the decking was obvious and a barrier or warnings were not reasonably required.
Following a trial on the preliminary issue of breach of duty, the judge dismissed the claim. He decided that Clements’s evidence needed to be treated with great caution and that she had missed her footing on the stairs from the spa pool, not the raised decking. However, had Clements fallen from the raised decking, the defendant would have been liable for failing to provide a guard rail. The claimant appealed.
The Court of Appeal decided that the point at which Clements fell over the edge was not in dispute but the manner of the fall, the nature and place of impact and its force, were. It was procedurally unfair and prejudicial to the claimant to allow the defendant to raise in closing submissions the issue of where the fall occurred. The judge was wrong to rely on the defendant’s typewritten note about the accident, which contained factual errors. A slight discrepancy in Clements’s evidence and a confused answer in cross-examination did not justify the judge’s criticisms of her which were also wrong. Finally, the judge had failed to give any consideration to Clements’s partner’s evidence that she told him immediately after falling that she had fallen from the raised decking area.
Louise Clark is a property law consultant and mediator
