Clough v P&O Trans European (Holdings) Ltd

On an appeal from factual findings, the trial judge’s reasons must be read as a whole. An awkward or illogical passage does not invalidate the decision where the overall reasoning shows that the judge applied the balance of probabilities and sufficiently explained the preference between competing accounts. Expert evidence may be assessed alongside timing, pressure, surrounding circumstances, absence of previous incidents and credibility. The absence of previous incidents is relevant but does not logically exclude the event. Where a failure to inspect is established, causation still requires proof on the balance of probabilities that the defect existed when inspection should have occurred and that the omission caused the accident. A causal link that remains speculative is insufficient.

The appellant, a mechanic employed by a contractor working on the respondent’s commercial vehicles, suffered serious injury to his hand when a suspension unit broke apart. His claim alleged that the respondent negligently failed to maintain a regular inspection system and that an earlier inspection would have detected a crack.

His Honour Judge MacKay accepted that a crack existed but found that the unit had been struck by the appellant. He also held that the appellant had not proved that the crack existed at the time of the missed inspection or that the omission caused the accident. The claim was dismissed. The appeal challenged the judge’s treatment of the expert evidence, his findings about how the accident occurred, and his conclusion on causation.

1. Disposition. The Court of Appeal unanimously dismissed the appeal. Lord Justice Pill delivered the leading judgment; Lord Justice Gage agreed, and Sir Martin Nourse agreed without adding reasons.
2. Accident mechanism. The judge’s reasons had to be considered as a whole. Although paragraph 20 was difficult and contained a non sequitur, paragraphs 19, 21 and 26 showed that the judge understood the issue to be which of two explanations was more likely on the balance of probabilities. He was entitled to accept the respondent’s engineer’s evidence, reject the appellant’s expert evidence on the offset method, and find the appellant’s account not credible.
3. In choosing between competing explanations, the judge was entitled to consider the evidence as a whole, including the late introduction of evidence that the unit was pressurised, the absence of previous spontaneous breakages, the limited pressure likely to have been present after only a few seconds, the coincidence involved in the appellant’s account, and the credibility findings. The absence of previous incidents was a relevant factor but did not by itself make the accident impossible.
4. Causation. Even assuming that the respondent had breached its duty by failing to inspect in October, the appellant had to prove that the crack was present at the time of the proposed inspection and that the omission caused the failure. There was no evidence as to when the crack appeared. It might have resulted from trauma while the vehicle was in use, and the speed at which cracks developed was uncertain. The causal case was therefore speculative and the judge was entitled to reject it.
5. The order was that the appeal be dismissed with costs assessed at £8,000 plus VAT where appropriate, subject to liberty to apply in writing concerning detailed assessment or an alternative figure.

1. Court of Appeal (Civil Division): In [2005] EWCA Civ 430, the appeal was dismissed with costs.
2. County Court: His Honour Judge MacKay dismissed the appellant’s damages claim on 16 September 2004. The judgment describes the decision as given at St Helens County Court, while the cover sheet identifies the appeal as being from Liverpool County Court.