Webb v Harrington

Permission to appeal against findings dismissing a personal-injury claim should be refused where the trial judge had evidence supporting the factual conclusions and the reasoning was neither irrational nor clearly wrong. An appellate court will not re-try witness credibility on a renewed application. An occupier’s duty to lawful visitors concerns reasonable safety for the purposes for which they are present. It does not generally extend to a dangerous method chosen by the visitor, particularly where that method was unforeseeable and the premises were safe when properly used. Interrupting a witness’s evidence for another commitment, with cross-examination resumed later, does not itself create a material irregularity or make the trial unfair.

Mr Kenneth Webb, acting without legal representation, claimed damages after suffering catastrophic spinal injuries when he fell from railings at premises owned and occupied by Mr Mark Harrington. Following a liability-only trial, His Honour Judge Dean QC found that Mr Webb had fallen while attempting to cross the outside of the building to retrieve a barbecue cover and dismissed the claim. The judge also rejected liability on Mr Webb’s alternative account that he had been inspecting a window at Mr Harrington’s request. Permission to appeal was refused on the papers by Longmore LJ. The renewed application concerned the sustainability of the factual finding, occupiers’ liability on the alternative facts, and an alleged unfairness arising from the interruption of Mr Harrington’s evidence.

The renewed application for permission to appeal was refused. Lady Justice Smith concluded that a full appeal had no realistic prospect of success.

1. Findings of fact. A trial judge’s finding of fact, particularly one based on witness credibility, could only successfully be challenged where there was no evidence capable of supporting it, or where the reasoning was irrational or clearly wrong. The judge below had carefully considered the evidence, including the credibility criticisms made against Miss Bailey and the applicant’s expert evidence. He had also made appropriate allowances for Mr Webb’s lack of representation. There was no basis for appellate intervention.
2. Occupiers’ liability. Even assuming Mr Webb’s account, Mr Harrington’s duty as landlord and occupier was to maintain the premises so that lawful visitors were reasonably safe for the purposes for which they were present. Mr Harrington had not instructed Mr Webb to inspect the window from outside. Leaning over the railings was Mr Webb’s own chosen method and was not reasonably foreseeable. The railings were not dangerous when properly used, and possible dampness did not make the premises unsafe for the permitted purpose.
3. Alleged procedural irregularity. Allowing a witness to interrupt his evidence to attend another commitment, and later resuming the evidence so that cross-examination could continue, did not itself render the hearing unfair. Witness evidence may properly extend over more than one day, and a temporary release from court does not ordinarily invalidate the trial.

Permission to appeal was therefore refused.

1. Court of Appeal (Civil Division): On 29 November 2007, Smith LJ refused the renewed application for permission to appeal: [2007] EWCA Civ 1263.
2. Longmore LJ: Permission to appeal was refused on consideration of the papers.
3. Central London County Court: His Honour Judge Dean QC dismissed the personal-injury claim after a liability-only hearing on 14 March 2007.