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Conflicting evidence in a tripping claim: can an appeal court intervene?

Denise Brosnan reviews her recent successful appeal on behalf of Dudley Metropolitan Borough Council, against a finding of a breach of the Occupiers' Liability Act 1957 in a tripping claim. Denise highlights the evidential concerns which were central to the case and which illustrate a key issue to consider when dealing with occupiers' liability claims.

McHale v Dudley Metropolitan Borough Council

In July 2012, the Claimant was making her way to her car, parked within a courtyard to the rear of her house at Charnwood Court, Stourbridge. The Claimant rented one of the garages within the courtyard, which was owned and occupied by the Defendant Council. As she made her way over the courtyard to her car, she slipped on the surface of the car park which was allegedly strewn with debris, fell and sustained injury. The Claimant stated that the area had been hazardous for a significant period of time and she had reported the state of the area to a local councillor without result.

 As a result of her accident, she claimed a breach of s.2 (2) of the Occupiers' Liability Act 1957 on the basis that the Council had failed to take reasonable care to ensure that visitors to the courtyard were reasonably safe. The key issue at trial was whether there was a breach of that duty.

There were potholes at the entrance to Charnwood Court - these had been remarked upon in previous inspections in August 2009. The entrance to Charnwood Court was classified by the Council as housing rather than highways land. The Council argued that it was neither inattentive nor inactive with regard to these potholes.  A works order had been raised to repair those at the entrance in August 2009 but they were classified as Priority 5 ("P5") repairs which meant that they were large external works and raised on a future programme with a typical timescale for completion in the region of two years and costs in excess of £1,500.  In response to complaints by a local councillor raised shortly before the Claimant's accident, a further works order was raised but this was subsequently cancelled as there was already an existing P5 repair on the system.

Following the accident, re-surfacing works, firstly of the potholed entrance and then of the entire courtyard, were undertaken but the latter work was not carried out until the end of July 2013 and over a year after the Claimant's accident occurred.  The Council produced photographs depicting the entrance to Charnwood Court shortly after work had been completed and photographs showing the complete area after resurfacing during the latter part of July 2013.

The Council submitted that the Claimant's photographs depicting the area of her fall did not show any hazard.  The surface of the car parking area looked unremarkable and there were no reported previous accidents.  Further, whilst there were complaints about potholes at the entrance to Charnwood Court, there were no complaints about debris on the surface of the car parking area.  The potholes were an entirely separate matter.  The Council argued that the Claimant must show that it was the debris on the surface of the car park that presented a danger.

Evidence produced in support of the claim

The only key piece of contemporaneous evidence produced by the Claimant to support the existence of a hazard on the courtyard were photographs taken of the scene of the accident by the Claimant's husband about a week after the incident. These showed the area of the accident from multiple angles and approaches and specifically highlighted the precise spot where the Claimant says she fell and which was not in dispute. At first instance, the Recorder did not attach any significant weight to these photographs which, the Council submitted, showed "an entirely unremarkable scene".

The only other evidence relating to the condition of the area was provided in witness evidence from the Claimant, her husband and her two adult daughters. Crucially, the witness evidence related to the condition of the car park as a whole, the allegation being that a "build up of broken tarmac and rubbish from potholes was everywhere" and that the "state of the court yard prior…was absolutely terrible". There was very little evidence from any witness which went directly to the state of the courtyard at the precise point the Claimant fell.

First instance findings

At first instance, Mrs Recorder McNeill QC found for the Claimant. The photographs did not provide any persuasive evidence as to whether the surface of the car parking area where the Claimant fell was hazardous.  In particular, there were no photographs of the whole of the car parking area, only a limited part and they were not sufficiently clear. The Recorder did however note that one of the photographs depicted a pot hole with debris around it. Nor was she assisted by the fact that there were no previously reported accidents in the area. 

She did not accept that the potholes were a completely separate matter to the debris on the surface of the car park as the Council had contended.  The question was whether the debris presented a hazard and not whether the potholes themselves were a danger and the Recorder could not simply draw the sort of red line which the Council sought. The Recorder accepted evidence from the witnesses that there was a substantial amount of debris which amounted to "a real source of danger" to the Claimant.

On appeal by the Council, the central issue was the weight to be attached to the photographs, whether the trial judge was right to disregard that evidence in reaching her findings of fact and whether the appeal judge was able to overrule the findings of fact made by the trial judge.

First Appeal

In order to succeed on appeal, it was necessary for the Council to establish that looking at the totality of the evidence, no reasonable judge could have concluded an unreasonable danger was present.

One of the key arguments from the Council was that the trial judge should have considered and attached weight to the photographs which had been taken by the Claimant's husband and provided the only contemporaneous evidence demonstrating the condition of the courtyard at the point at which the Claimant fell.  Had she done so, then she could not have reasonably concluded that the area where the Claimant fell was so dangerous that it required remediation.

Finding in favour of the Council, HHJ McKenna agreed stating that an appeal judge was in just as good a position to appraise the evidence, that this was permitted and that the photographs did not show a foreseeable hazard.  He was also persuaded that the issue of whether s.2(2) of the Occupiers' Liability Act 1957 was breached, related to the state of the exact spot where the Claimant fell, not the area more generally

Further Appeal

The Claimant applied for permission to appeal to the Court of Appeal and the matter was considered on paper by the Rt. Hon. Justice Floyd.

In refusing the Claimant permission to appeal, on the grounds that there was no compelling reason to hear the appeal and following a review of the documents in the case, he confirmed that the Recorder ought not to have dismissed the photographs and that they provided compelling evidence of the non-existence of any hazard.  Had the photographs been taken into account as they should have been, the Recorder would not have been able to reach the conclusion about the existence of a hazard which she did reach.

He went on to confirm the well established principle that a judge is entitled on appeal to reverse a conclusion reached at first instance if important evidence has been dismissed when it should not have been and where, if it had been taken into account, a different conclusion would have been reached.  If as the trial judge felt, the photographs negatived the existence of a hazard, they also provided a reason for rejecting the remainder of the evidence which suggested its existence.

In reaching the above conclusion, the Rt Hon Justice Floyd stated that whilst it was arguable that the Recorder was right and the judge was wrong, the test for a second appeal was not satisfied.  The appeal obviously does not raise an important point of principle or practice, because the rules applicable to allowing appeals on factual questions are well settled. A judge is entitled on appeal to reverse a conclusion reached at first instance if important evidence has been dismissed when it should not have been, and where, if it had been taken into account, a different conclusion would have been reached.

If, as the judge thought, the photographs effectively negatived the existence of a hazard, they also provided a reason for rejecting the remainder of the evidence which suggested its existence.  The case fell well short of one where a compelling reason for a further appeal could be found.


• In many cases, a first instance judge will come to a conclusion which involves balancing a number of factors and/or consideration of a number of different pieces of often conflicting evidence.  There is a natural reluctance by the Court of Appeal to interfere with such decisions.  However, if in coming to a conclusion, the first instance judge failed to take into account material evidence, then the appeal court can and does intervene.

• This case serves to highlight that evidential issues decided at first instance are not set in stone and can be appealed, provided that the appeal judge would be just as capable of appraising the evidence as the trial judge. Whilst witness evidence would almost certainly be exempt from this, evidence such as contemporaneous photographs of the exact point at which a party alleges he/she fell are open to reinterpretation which is exactly what HHJ McKenna did in this case.

• More specific to tripping claims is the fact that it is the area where a claimant fell which is at issue, not the surrounding area generally. The ruling of the appeal judge showed that there is no necessary inference from one to the other.


For further information please contact Denise Brosnan who acted on behalf of Dudley MBC in this case.

D +44 121 200 0415,  M +44 7713 342048 or denise.brosnan@dwf.law

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.