Allport v Wilbraham

An appellate court should not substitute its view of disputed facts merely because it might assess the printed evidence differently. Intervention is justified where the trial judge’s advantage from seeing and hearing witnesses cannot explain the conclusion, or where the reasons or evidence show that the judge failed to use that advantage properly. The judge must give reasons, but their detail depends on the dispute. A straightforward credibility contest may be resolved by identifying the preferred witness; a substantial claim turning on detailed evidence requires an explanation of why one account is preferred. Witness credibility may be assessed issue by issue, using oral testimony, contemporaneous documents, omissions, conduct and inherent probabilities. Where findings are open and adequately reasoned, an alleged imbalance in reasoning does not justify a retrial.

James David Allport claimed substantial damages from Timothy Wilbraham, the referee at a rugby match where Allport sustained catastrophic cervical spinal injury in a scrum. Liability was alleged on two alternative bases: failure to call engage and failure to ensure that a front-row player was safely positioned under Law 20 of the Laws of Rugby.

His Honour Judge Macduff QC, sitting as a Deputy High Court Judge, heard the liability issue and dismissed the claim on 18 December 2003. He accepted the referee’s evidence and rejected the key evidence for Allport. On appeal, Allport accepted that the findings were open on the evidence but argued that the judge had been uneven-handed, misunderstood important evidence and failed to explain his conclusions. A retrial was sought. The central issue was whether those alleged defects justified appellate intervention.

Disposition. The appeal was dismissed unanimously. May and Auld LJJ agreed with Neuberger LJ’s reasons.

1. On an appeal from factual findings based substantially on oral evidence, the appellate court should not substitute its own conclusion merely because it might assess the printed evidence differently. The approach in Watt or Thomas -v- Thomas [1947] AC 484 permits intervention where the trial judge’s advantage from seeing and hearing witnesses cannot explain the conclusion, where the reasons are unsatisfactory, or where the evidence shows that the judge failed to take proper advantage of that evidence.
2. The duty to give reasons depends on the subject matter. As explained in Flannery -v- Halifax Estate Agencies Limited [2002] 1 WLR 377, a simple dispute about which witness is truthful may require only identification of the preferred account, whereas a substantial claim involving detailed evidence requires an explanation of why one case is preferred. In this case the judge discharged that duty.
3. A trial judge may treat one witness’s change of evidence on a particular issue as demonstrating general unreliability, while treating another witness’s inconsistency on that issue as not preventing reliance on the witness’s evidence on a different issue. The judge was entitled to distinguish between the evidence of Mr Lawlor and Mr Ratcliffe in that way.
4. The judge was entitled to assess the evidence as a whole. Relevant matters included the contemporaneous reports, crucial omissions from Mr Lawlor’s report, the parties’ conduct after the injury, witness demeanour, inconsistencies, inherent probabilities and the conflict between the principal accounts. The expression drove in was ambiguous and did not itself establish an unlawful engagement.
5. The judge was entitled to reject Mr Smith’s evidence and accept the referee’s account. His findings were open to him and adequately explained. The alleged defects did not make the matter at large or justify a retrial. The appeal was therefore dismissed.

• Court of Appeal (Civil Division) — [2004] EWCA Civ 1668, 15 December 2004: appeal dismissed.
• High Court of Justice, Queen’s Bench Division, Birmingham District Registry — His Honour Judge Macduff QC, sitting as a Deputy High Court Judge, dismissed the claim on liability on 18 December 2003. No citation is stated in the judgment.