Bayley v Tesco Stores Ltd

On an application for permission to appeal, the Court of Appeal will not ordinarily interfere with a trial judge’s assessment of witnesses and the evidence, including decisions about whom to believe. It cannot admit new evidence which could, with reasonable care and diligence, have been presented at trial. Where the trial judge’s findings on causation and liability under the Manual Handling Operations Regulations 1992 and in negligence were reached on the material properly before him, and there was no real prospect of success, permission and an extension of time were refused.

The claimant, employed in administrative work, alleged that she suffered a further back injury after being transferred to a documentation department. Her accounts differed as to whether the injury occurred while lifting files or while pushing a wheeled skip.

The Cardiff County Court dismissed the claim, finding that the accident had not been proved on the balance of probabilities. Alternatively, it found that the employer had done all that could reasonably be expected under the Manual Handling Operations Regulations 1992 and in negligence. The claimant applied out of time for permission to appeal and an extension of time, relying in part on documents and matters which had not been placed before the trial judge.

The central issues were whether the Court of Appeal could revisit the trial judge’s factual and credibility findings, admit the proposed new material, and grant permission where there was no real prospect of success.

1. Applications dismissed. Lady Justice Hale refused permission to appeal and refused the related application for an extension of time.
2. The Court of Appeal is not usually in a position to disagree with a trial judge’s appreciation of witnesses and the evidence they gave, including whom the judge believed. The trial judge had expressly preferred the defendant’s witnesses, and the appellate court could not interfere with that assessment.
3. The Court of Appeal could not allow new evidence which, with reasonable care and diligence by the claimant’s legal advisers, could have been obtained and presented at trial. The claimant’s complaints concerned material of that kind, although other courses might be available in an appropriate case.
4. On the material before the trial judge, he had been entitled to find that the claimant had not proved how the accident occurred. He had also considered the alternative liability issue and preferred evidence that the claimant had been told not to undertake lifting or moving beyond her capacity and to seek assistance. On that basis, he found no breach of the Manual Handling Operations Regulations 1992 and no negligence.
5. Although the explanation for the delay would have been accepted if there had been a real prospect of success, the absence of such a prospect meant that there was no basis for granting permission or extending time.

• Court of Appeal (Civil Division): refused permission to appeal and refused an extension of time; applications dismissed, [2001] EWCA Civ 504.
• Cardiff County Court: His Honour Judge C Masterman dismissed the personal injury claim on 28 January 2000 and ordered the claimant to pay the defendant’s costs.