Thomson (AP)(Respondent) v. Kvaerner Govan Limited (Appellants)(Scotland)

An appellate court may interfere with a trial judge’s findings of fact only where it reaches a clear conclusion that the judge was plainly wrong. This restraint applies to findings about reliability as well as credibility, particularly where the trial judge personally assessed the witnesses.

The claimant ordinarily bears the burden of proving the facts establishing the defendant’s liability. A defendant’s inability to suggest a credible alternative explanation for an accident does not transfer that burden. The position differs where the established circumstances raise a presumption of fault under res ipsa loquitur. That requires reasonable evidence that, without an explanation from the defendant, the accident arose from the defendant’s negligence.

The respondent suffered a serious head injury while employed as a welder at the appellants’ shipyard. He alleged that a staging plank broke when he stepped on it, causing him to fall. Liability was founded on Regulation 17(1) of the Shipbuilding and Shiprepairing Regulations 1960, which required staging to be made of suitable and sound material of adequate strength.

The Lord Ordinary found that the respondent had not proved his account on the balance of probabilities and granted decree of absolvitor. The First Division allowed the respondent’s reclaiming motion, holding that the evidence relied upon by the Lord Ordinary did not justify rejecting his account.

The central issues were whether the First Division had exceeded the proper limits of appellate review of factual findings and whether the appellants’ inability to provide a credible alternative explanation supported the respondent’s case.

1. Appeal allowed by a majority of four to one. Lord Hope of Craighead delivered the leading speech. Lord Nicholls of Birkenhead, Lord Hobhouse of Woodborough and Lord Rodger of Earlsferry agreed. Lord Steyn dissented.

2. Per Lord Hope, an appellate court which has not seen or heard the witnesses must ask whether it can reach a clear conclusion that the trial judge was plainly wrong. The trial judge’s findings are not immune from review. They may be displaced where the printed evidence demonstrates material inconsistencies or inaccuracies, a failure to appreciate the weight or bearing of proved circumstances, or some other plain error. Where the evidence remains balanced, the trial judge’s advantages bring the balance down in favour of the first-instance decision.

3. The First Division did not apply that restrained approach. Its opinion did not state, or unmistakably demonstrate, that the Lord Ordinary had gone plainly wrong. It instead re-examined the evidence and substituted its own assessment of whether the respondent’s account was reliable. The Lord Ordinary had delivered a careful judgment after weighing the respondent’s account against the safety inspector’s evidence.

4. Per Lord Hope, appellate restraint applies to reliability as well as credibility. Reliability may depend partly upon how a witness’s account fits the other evidence, but it may also depend upon demeanour. The Lord Ordinary had personally assessed both the respondent and the safety inspector. The appellate court therefore was not in an equally advantageous position merely because the respondent’s honesty was accepted.

5. The respondent bore the burden of proving that the plank lacked adequate strength and broke when he stepped upon it. The appellants were not required to supply a credible alternative account of the accident. An evidential burden may arise where the established circumstances raise a presumption of fault, as under res ipsa loquitur. That required reasonable evidence that, absent an explanation, the accident resulted from the appellants’ negligence. The evidence did not raise that presumption.

6. The interlocutor of the First Division was reversed and the Lord Ordinary’s interlocutor granting decree of absolvitor was restored. Lord Steyn would have dismissed the appeal because he was persuaded by Lord Morison’s judgment.

1. House of Lords: By a majority of four to one, allowed the appeal in [2003] UKHL 45 and restored the Lord Ordinary’s interlocutor.
2. First Division of the Court of Session: Allowed the respondent’s reclaiming motion and reversed the Lord Ordinary’s decree of absolvitor.
3. Lord Ordinary: Held that the respondent had not proved his account of the accident on the balance of probabilities and granted the appellants decree of absolvitor.