Alsop v Sheffield City Council

On an application for permission to appeal, a material mismatch between the case advanced at trial and the judge’s findings may justify permission where it could affect the result. An unresolved burden-of-proof issue may also require examination, particularly where the potentially responsible party called no evidence. Granting permission does not determine the substantive merits.

The claimant sought permission to appeal from a decision of Miss Recorder Godfrey QC in the Sheffield County Court. The dispute concerned the claimant’s fall while moving a wheelie bin up a concrete verge. The Council had advanced the case that this was an improper and unnecessary method of working, but the recorder treated the risk as low for an experienced worker who could use steps or an alternative route. The central issue was whether that discrepancy, together with a possible burden of proof under the Manual Handling Operations Directive, justified an appeal.

Permission to appeal was granted, with costs reserved. Lord Justice Henry considered that the application disclosed an arguable and material issue requiring appellate examination.

1. The Council’s written safety instruction referred to seeking access paths or steps on steep grass verges, but contained no equivalent qualification for concrete verges. The evidence suggested that the concrete verges, including the one where the claimant fell, might have been steeper.
2. The Council’s case, advanced in cross-examination, was that pulling the wheelie bin up the slope was the wrong method, involved an unnecessary risk, and would not ordinarily be undertaken. The refuse operatives’ evidence was materially different: they said they worked under time pressure, routinely used that method, and had not been reprimanded for doing so.
3. The recorder’s summing-up did not resolve that contradiction. Her conclusion that an experienced worker would face only a very low risk and could use steps or an alternative route did not match the way the Council had presented its case.
4. The absence of evidence from the Council could be significant if the burden of proof under the Manual Handling Operations Directive rested on it. That issue had not been explored sufficiently.

The court therefore granted permission, without deciding the underlying liability or safety issues.

• Court of Appeal (Civil Division): On 17 July 2001, Lord Justice Henry granted permission to appeal from the decision of Miss Recorder Godfrey QC in the Sheffield County Court. Costs were reserved.