How a court settles a stark dispute of fact

A recent case provides a helpful case study for those interested in the practical workings of law

Few civil cases go to trial.

Most civil cases - where party A is suing party B for damages - settle, or are withdrawn, or are struck out by the courts.

The general reason for this is that once the parties have set out their cases in pre-action correspondence or in their formal statements of case, it is (or should be) usually obvious what are the strengths and weaknesses of the respective cases.

It doesn’t matter which side a competent civil litigation lawyer is advising, their assessment of the parties’ cases will broadly be the same. Lawyers on both sides will (privately) agree, even if they put up a performance of not agreeing. And if a party is not legally represented, the merits of a case will often quickly be spotted by a judge. For claims for damages to end up with a full trial is rare.

This means that published case reports are often unrepresentative of the business of the civil courts and of law in practice generally. Almost by definition you are dealing with exceptional cases - and often reported cases are appeals where the judgment does not show how factual disputes were resolved.

Reported cases which deal with disputes of fact are not that common - at least when the factual dispute is relatively simple - and so it is instructive when a case is reported.

And one such case has been reported.

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As the judge in this case says: “At the heart of this case is a stark factual dispute. Either the Claimant or the Defendant has given a false account of the accident.”

The case is about a personal injury in a fairground.

The defendant is described a fairground operator. His son managed the fairground on a day-to-day basis.

The claimant labourer worked for the defendant, and one day in September 2019, the worker fell from height whilst dismantling a "Freakout" fairground ride.

This ride is dryly described by the judge as “an A-frame with pendulum, and the pendulum has four cars at the base, each of which can carry four seated passengers. When in operation, the pendulum swings from side to side and the cars rotate, giving the occupants a thrilling experience.”

The ride was not in operation when the accident happened.

If you click into the picture here, you can see a “Freakout” ride - and look at the yellow metal handrails.

The agreed facts were that the claimant was standing on a yellow metal handrail and he then slipped from this handrail whilst attempting to free a seized nut/bolt. The claimant also said it was wet, though this was denied by the defendant.

The claimant’s case was that he and the defendant’s son “were working alongside each other, standing on a wet metal handrail pushing on a scaffold pole that had been slipped over the handle of a conventional spanner (specifically, a 55mm open-ended non-adjustable spanner) to give extra leverage, when the nut freed itself and the sudden movement of the spanner when the nut freed caused the claimant to fall from his position standing on the wet handrail”.

But the defendant’s son had a very different version of events.

He said he had expressly told the claimant not to attempt to free the bolt whilst he (the son) went to his van to get another tool. He then said that when he came back from the van he saw the claimant on the ground.

Again, as the judge said: either the claimant or the defendant had given a false account of the accident.

How is a judge to decide?

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One way of deciding is by assessing the oral evidence of witnesses: the labourer and the fairground operator’s son.

Here the judge wisely says:

“Some people can lie extremely convincingly and fluently. Some people who are unsure and hesitant can also be telling the truth. Memory can be affected by the legal process. An account which is supported by independent or contemporary evidence may be more reliable.”

Both witnesses gave evidence - and both were cross-examined. The claimant was put under particular pressure because of how in his witness statement he had described pushing down on a spanner.

And the judge decided for the claimant:

“Overall I accept the account given by the claimant. It has been consistent from the start.

“I do not think the reference to pushing down on the spanner in the particulars of claim detracts from this conclusion. The claimant's account was consistent with what was recorded in the ambulance record;

“"HPC: Was taking fairground ride down Was standing on framework, with colleague, both pushing against bolt Bolt moved, pt knew he was going to fall, tried to jump onto framework or thinks he would have hit his face), then landed on floor -severe pain R/Foot++ Pt removed boot off straight away, obvious swelling through sock immediately visible Friend carried pt away from ride over to their trailer (caravan) Called 999"“.

So the claimant had been consistent from the beginning and his evidence was also consistent with the ambulance record.

But the judge went further, and also described the weaknesses of the son’s evidence:

“The account given by [the son] suffered from a number of problems. Firstly, as set out in his witness statement there was no reason for the claimant to suddenly stop what he was doing and attempt to remove the nut on his own. Nor would there be any logical reason to tell the claimant and [third party] to wait and leave everything alone when they were already engaged on a task. Perhaps realising this his evidence changed in the witness box where he stated for the first time that the claimant asked him if he wanted help. I find it inherently unlikely that a good worker like the claimant who usually did as he was told and followed directions would take it upon himself to attempt to remove the nut.”

The judge added:

“I could not understand why, as a supposedly conscientious employer, [the son] would just drive away from the scene of the accident. At the very least I would have expected him to deal with the necessary accident there and then rather than the next day.”

Elsewhere in the judgment the judge also observed other evidence which would have been easy for the defendant to produce had not been produced.

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The case report is a good practical example for law students and those interested in the law in showing how a judge goes from situation [x] where there are contradictory accounts on a key issue to situation [y] where it is plain from the surrounding evidence which account is to be preferred.

In this case it was so plain that the judge even states:

“So having considered the entirety of the evidence in context I conclude that the claimant's account of the accident is correct and that [the son] has made up his account to minimise the defendant's liability.”

The son was not merely mistaken in his evidence, the evidence had been fabricated. This is a serious finding.

But by this part of the judgment, a reader would have come to the same conclusion.

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With any reported civil case - especially where the report shows the case to be one-sided - the question is “how the hell did this end up in court”?

(And here we must also remember that judicial rhetoric often means a case can look one-sided in a judgment when it was actually evenly matched.)

What the judge worked out here - and what any reader of the judgment would work out from the surrounding evidence set out in the judgment - is the defendant’s case was weak.

(And so this is not a case which a judge has deftly made look one-sided, it was one-sided.)

Alas, we can never know why such cases do end up in court.

Sometimes it is the insistence of the party to have their day in court; sometimes it is because cases (especially negligence cases) can be driven by insurers rather than the parties themselves; sometimes parties can be trapped by what they said and did at an early stage.

Sometimes it is the parties to blame, and sometimes it is not.

But the feature of an efficient civil litigation system is that such one-sided cases do not often get to trial: for such cases should not need to get that far so as to be resolved.