Lougheed v Safeway Stores Plc

An appellate court may interfere with a trial judge’s factual conclusion where the reasons are unsatisfactory or the evidence shows that proper advantage was not taken of the trial process. A professional judge must give sufficient reasons to explain why a party has won or lost; inadequate reasoning may itself justify an appeal. Where the case advanced on retrial was not properly raised at trial and has no realistic prospect of success, the interests of justice may require the appellate court to determine the issue rather than order a retrial.

The claimant was injured when she slipped on a wet floor at the respondent’s store. Liability for the accident was admitted, but the parties disputed whether a subsequent chronic pain disorder was caused by the accident or by an unrelated constitutional or psychological cause.

The Liverpool County Court found that the orthopaedic injury had ended after about nine months and that there was a gap in symptoms and evidence before the claimant left work. It rejected causation and awarded no damages on that basis. The claimant appealed, contending that the judge had misunderstood the medical evidence and had made an impermissible finding that her account was dishonest.

1. Appeal allowed. The trial judgment was set aside. The chronic pain disorder was held to have been caused by the accident and the negligence for which the respondent was liable.
2. The appellate court recognised the considerable weight ordinarily owed to a trial judge who has seen and heard the witnesses. However, under the principle stated in Watt or Thomas v Thomas [1947] A.C. 484, the matter may become at large where the reasons are unsatisfactory or the evidence unmistakably shows that the judge failed to take proper advantage of the trial process.
3. Per Ward LJ, the duty to give reasons described in Flannery & Anr v Halifax Estate Agencies Ltd. (t/a Colleys Professional Services) [2000] 1 WLR 377 required the judge to explain why he rejected the psychological evidence and the claimant’s case. Transparency was essential, and want of reasons could be a self-standing ground of appeal.
4. The findings of a gap in time and symptomology were contradicted by abundant medical evidence of continuing pain, treatment directed to the coccyx, and consistent complaints. The finding that the claimant had given an inaccurate or dishonest account lacked a proper evidential basis and was inconsistent with the medical evidence.
5. A retrial was unnecessary. The respondent’s case on appeal accepted the continuing genuineness of the complaints and relied instead on a theory not fully advanced at trial. That theory had no realistic prospect of success. Although the burden of proof remained on the claimant, the interests of justice favoured final determination by the Court of Appeal.
6. The matter was remitted to the Liverpool County Court only for assessment of damages. The respondent was ordered to pay the claimant’s costs of the action to date and of the appeal, subject to detailed assessment.

• Court of Appeal (Civil Division): Appeal from the Liverpool County Court allowed. The order of His Honour Judge Mackay dated 11 November 1999 was set aside. The case was remitted for assessment of damages on the basis that the chronic pain disorder was caused by the accident.
• Liverpool County Court: The court rejected causation and resolved the issue of principle in favour of the respondent.