Newman v Whitbread Plc

A trial judge must decide the case advanced by the parties and must not determine liability on a materially different case introduced for the first time in the judgment. A new issue is materially different where, if it had been pleaded and pursued, the opposing party would have prepared or conducted the trial differently. An appellate court may set aside a judgment founded on such unfairness. A new trial should not be ordered where the new case was unsupported by a prima facie evidential foundation and reopening it after substantial delay would cause serious prejudice.

The claimant succeeded before Mr Recorder Tackaberry QC on liability following a personal injury trial concerning a fall on workplace stairs. Her pleaded and argued case relied principally on technical non-compliance of the staircase and previous accidents. The judge rejected those matters but found liability on a different theory: that the employer should have taken account of the claimant’s physical restrictions after a road traffic accident and arranged alternative work or additional assistance.

The defendant appealed, contending that this case had not been advanced at trial, tested in evidence, or addressed by expert witnesses. The central issues were whether the judgment was procedurally unfair and, if so, whether the proper order was judgment for the defendant or a new trial.

1. Appeal allowed. The trial judgment was overturned and judgment was entered for the defendant. The claimant’s case at trial concerned the condition and safety of the stairs. The judge’s conclusion instead depended on the claimant’s physical limitations and the employer’s alleged failure to accommodate them.
2. The alternative case was wholly new in substance. It had not been opened, put in cross-examination, developed in evidence, or addressed in closing submissions. It had not been put to the defendant or its experts, and the defendant had no opportunity to obtain medical evidence about the claimant’s condition or to address the scope of the alleged duty.
3. Applying the approach in Waghorn v George Wimpey & Co Ltd [1969] 1 WLR 1764, the question was whether the defendant’s preparation and conduct of the trial would have been different had the case been pleaded and advanced from the outset. The answer was plainly yes. The resulting unfairness required the judgment to be set aside.
4. It was the claimant’s responsibility to advance all linked causes of action and alleged breaches of duty at the trial. This was not a case where the evidence established a prima facie basis for the newly constructed claim. The proposed case depended on medical and engineering evidence that had not been obtained or tested.
5. A new trial was therefore refused. Five years after the accident, it was too late and too prejudicial to begin investigating the claimant’s medical condition at the relevant time, particularly when no prima facie case had been established. The order included costs consequences and provision for determination of any application concerning publicly funded costs.

• Court of Appeal (Civil Division): Appeal from the decision of Mr Recorder Tackaberry QC dated 8 September 2000. Appeal allowed with costs; the judgment for the claimant was overturned and judgment was entered for the defendant.