A judge had been entitled to accept a claimant's account of how a tripping accident had occurred as credible, despite inconsistencies between her oral evidence and accounts in various medical records, and to conclude that a local authority was in breach of its statutory duty to maintain highways pursuant to the Highways Act 1980 s.41 by allowing rectangular, brick-edged planters to remain in place on a stepped terrace outside the claimant's home.

The appellant local authority appealed against a decision of the judge allowing the personal injury claim of the respondent (B) in a tripping case. On the stepped terrace outside the area where B lived were a number of "planters", each consisting of a brick-edged rectangle which, once having contained a tree, were later filled in with concrete. B alleged that she had trodden on the edge of one of the planters and fallen down the four-inch gap next to it. She suffered a tri-malleolar fracture to her left ankle which required two operations and kept her off work for six months. B issued proceedings against the local authority seeking damages for personal injury on the basis that, in allowing the planters to remain in place as they were, the local authority was in breach of its statutory duty to maintain highways at public expense pursuant to the Highways Act 1980 s.41. The local authority, having earlier admitted liability, withdrew that admission upon receiving medical evidence on the basis of inconsistencies in B's accounts of the accident, which led it to believe that her claim was a fabrication. At trial, the local authority drew the judge's attention to inconsistencies between the account of how the accident had occurred in the letter before action and particulars of claim and B's account given in oral evidence, and inconsistencies between various medical records and her oral evidence. The local authority also alleged inconsistencies in B's account of the mechanism of her fall, in that she had stated both that her ankle had twisted outwards and inwards. The judge found that as the letter before action or particulars of claim were muddled and not free from ambiguity, they did not undermine B's oral evidence. He further noted that there were inconsistencies between the entries made by medical personnel and found that, having heard the evidence of B and other witnesses, the accident had occurred in the way B had described. In relation to the mechanism of the accident, the judge did not regard that as a significant matter because the accident had happened quickly and B's misdescription of it later did not undermine her credibility. The judge went on to find that the planters constituted a foreseeable danger and that the local authority had been negligent in allowing them to remain in place once the trees had been removed. He therefore gave judgment in B's favour, with damages to be assessed, albeit reduced by one-third to take account of B's contributory negligence. The local authority contended that the judge had erred in his approach to credibility and had failed to take properly into account the numerous inconsistencies which, if taken in the round, were bound to lead to the conclusion that B had not given a truthful account of the accident. It further submitted that the judge had erred in finding that the planters amounted to a source of danger. Finally, the local authority argued that a reduction for contributory negligence of only one-third was over-generous.

HELD: (1) The judge had been entitled to take the view that, because the relevant paragraphs of the letter before action and particulars of claim were not entirely clear, that did not undermine B's later oral evidence. Moreover, where the judge had had the advantage of hearing the oral evidence of all the witnesses, including cross-examination of B as to the inconsistencies in the medical records, and had weighed up all those comments against B's own account, the conclusion he reached as to B's credibility was one which was open to him on the evidence, and it was not appropriate for the Court of Appeal to substitute a different view. Whilst there were extreme cases where an appellate court could reverse findings of primary fact made by the trial judge, the instant case was not one of them. (2) There was no suggestion that the judge had misdirected himself in law in concluding that the local authority had been in breach of its statutory duty in allowing a negligent state of affairs to continue in respect of the presence of the planters, Mills v Barnsley MBC (1992) PIQR P291 CA (Civ Div) considered. (3) The reduction of only one-third of B's award for contributory negligence was well within the range open to the judge.

Appeal dismissed

LOUISE BELL v HAVERING LBC (2010)

CA (Civ Div) (Carnwath LJ, Jackson LJ, Hedley J) 27/5/2010

Lawtel:  1.6.2010