Russell v Wincanton Ltd

An appellate court should not interfere with findings based substantially on witness credibility where the trial judge heard and saw the witnesses, even where the documentary evidence contains inconsistencies. The appellate court may uphold an inference about the mechanism of injury drawn from the medical and circumstantial evidence, even if the claimant’s own account of the relevant movement is rejected. A failure to resolve an evidential issue does not justify allowing an appeal where that issue is not decisive and the remaining findings support the result.

The claimant, an employee driver, alleged that he was struck by a load bar while opening a trailer at work. He suffered a head injury and a stroke, which caused lasting neurological problems. The Deputy High Court judge found the employer liable and ordered that damages be assessed.

The employer appealed, challenging the judge’s assessment of inconsistent accounts, the finding that the claimant’s head movement caused the carotid artery injury leading to the stroke, and the failure to resolve fully the apparent inconsistency between a glancing blow and the claimant’s account that he was knocked down. The central issues were whether the judge’s factual findings were open to him and whether the evidence supported the necessary causal inference.

1. Appeal dismissed. Lord Justice Kennedy delivered the judgment, with Mr Justice Scott Baker agreeing. Costs were to be subject to detailed assessment if not agreed.
2. The first ground failed. The trial judge had made clear findings that the claimant, his wife, Mr McKenna and Mr Marsden were honest and reliable witnesses. Although the contemporaneous records contained serious inconsistencies, the Court of Appeal had not seen or heard the witnesses and could not interfere with the judge’s conclusion where the evidence, including the claimant’s account to Mr McKenna, entitled him to reach it. The defendants were also seriously handicapped by the absence of Mr Cook, whose records contained unexplained discrepancies.
3. The judge was entitled to find the causal mechanism proved. The medical evidence required a sharp movement of the claimant’s head to the right to damage the left carotid artery. The claimant’s demonstrations showed movement to the left, but the judge was entitled to reject that evidence as unreliable on the precise movement and to infer that the claimant had moved his head in the way required by the medical evidence. He was not confined to accepting the claimant’s own account.
4. The judge’s failure to resolve expressly the apparent tension between a glancing blow and the claimant’s account of being knocked down was unsatisfactory, but it was not decisive. The head injury itself was minor, and the remaining factual and medical findings supported the conclusion on liability.

• Court of Appeal (Civil Division) — On 13 March 2003, the appeal from the Deputy High Court judge’s decision of 1 November 2002 was dismissed. Citation: [2003] EWCA Civ 504.