Davis & Anor v Balfour Kilpatrick Ltd & Ors

Where a claimant bears the burden of proving causation, a judge need not make a positive finding identifying the precise cause of symptoms. It is legitimate to conclude that the claimant has failed to prove the case on the balance of probabilities, particularly where the evidence is uncertain or competing explanations remain. An appellate court will not interfere with findings based on expert evidence where the trial judge was entitled to prefer one body of evidence over another. A late application to introduce a novel human-rights argument may be refused where it was not raised below, has not been properly researched, and seeks review of a decision under CPR rule 52.11(1). Article 8 of the ECHR was not shown to displace established common-law principles governing workplace personal-injury claims.

The claimants, employees working as riggers on a radio-transmitting mast, alleged that exposure to radio-frequency radiation caused their symptoms and that the risk was reasonably foreseeable. Following a five-day preliminary-issue trial, His Honour Judge Overend found no reliable evidence that they had been exposed above the relevant investigation levels and was not persuaded that their symptoms resulted from thermal or non-thermal radiation effects.

The claimants appealed, arguing that the judge had been required to determine the diagnosis, had wrongly rejected expert evidence, and should permit a new argument based on Article 8 of the ECHR. The central issues were whether the judge could decide the case on failure to prove causation and whether the proposed human-rights argument should be introduced for the first time on appeal.

1. Appeal dismissed. The judge was entitled to conclude that the claimants had not established that their symptoms were caused by thermal or athermal effects of radio-frequency radiation. He was not required to identify another specific diagnosis. The claimant who bears the burden of proof may fail on causation without the court deciding affirmatively what caused the symptoms. That approach was supported by The Popi M [1985] 1 WLR 948.
2. The judge was entitled to reject Dr Holliday’s calculations and prefer Professor Blakemore’s evidence. The criticism concerning one comparison of field-intensity measurements did not undermine the broader factual findings, including the absence of reliable contemporaneous evidence that investigation levels had been exceeded. The appellate court would not go behind findings of this kind.
3. The application to amend the grounds of appeal to raise an Article 8 argument was refused. Marcic v Thames Water Utilities Ltd [2002] 2 WLR 932 concerned an obiter discussion of possible remedies for a resident affected by flooding and did not establish that Article 8 displaced common-law principles in an employee’s workplace personal-injury claim. Hatton v The United Kingdom concerned aircraft noise and was materially different.
4. The proposed amendment was also late, unsupported by sufficient authority, not raised below, and inconsistent with the review jurisdiction under CPR rule 52.11(1). The appeal was dismissed with costs, subject to detailed assessment.

• Court of Appeal (Civil Division): appeal from the preliminary-issue judgment of His Honour Judge Overend in the Queen’s Bench Division dismissed with costs.