Pigford v Sunderland

On an appeal from findings of fact, the Court of Appeal must make due allowance for the trial judge’s advantages, particularly in assessing oral evidence. It may interfere where, having done so, it is conscientiously satisfied that the conclusion was wrong; proof of perversity is not required. A finding that a claimant slipped on a wet, dangerously slippery surface was upheld where it was supported by an honest witness who observed conditions at the location and by meteorological evidence consistent with thawing. Earlier accounts that the claimant slipped on ice made the conclusion surprising but did not make it perverse.

Pigford v Sunderland arose from a negligence claim after Mrs Pigford slipped on a walkway on a housing estate. The Newcastle upon Tyne County Court found that the surface became dangerously slippery when wet, that the council had negligently failed to make it safe, and that the accident was caused by wet blockwork rather than ice.

The council appealed, arguing that the Recorder’s factual conclusion was perverse and contrary to the evidence. The central issue was whether the Court of Appeal should interfere with the finding that the accident was caused by a wet surface.

1. Disposition. By a majority, the appeal was dismissed. Lord Justice Sedley delivered the leading judgment and Lord Justice Rix agreed. Lord Justice Aldous dissented and would have allowed the appeal.
2. Majority reasoning. The issue was whether Mrs Pigford slipped on ice or on blockwork which was wet and excessively slippery. Lord Justice Sedley held that the Recorder was entitled to rely on Mrs Harrison’s evidence after finding her honest and truthful. Her evidence that the paving was wet did not stand alone. The meteorological evidence was equivocal but consistent with ice having thawed and water being present. Mrs Pigford’s earlier accounts that she had slipped on ice created a substantial evidential difficulty, but they did not compel the Recorder to reject the later account or render his conclusion perverse.
3. Lord Justice Rix agreed. He stated that perversity was not a necessary precondition to appellate intervention on facts. The Court of Appeal could intervene if, while making due allowance for the trial judge’s advantages, it was conscientiously satisfied that the conclusion was wrong. In this case, however, the Recorder had weighed the conflicting evidence, including the evidence of a witness familiar with the conditions at the location, and the Court was not persuaded that he had reached the wrong conclusion.
4. Dissent. Lord Justice Aldous considered that the Recorder had misunderstood and misrecorded the evidence. In his view, the claimant’s contemporaneous statements that she had slipped on ice carried particular weight, Mrs Harrison’s evidence did not exclude ice, and the weather reports were inconclusive. The Recorder’s reasoning therefore rested on a wrong foundation, requiring the Court to determine the issue afresh.
5. The formal order was that the appeal be dismissed.

1. Court of Appeal (Civil Division): In Pigford v Sunderland, [2003] EWCA Civ 823, the majority dismissed the council’s appeal.
2. Newcastle upon Tyne County Court: Mr Recorder Allen QC awarded damages after finding that the council had negligently failed to make the walkway safe when wet and that the accident was caused by wet, excessively slippery blockwork rather than ice. Permission to appeal was refused by the Recorder but granted by Mance LJ.