Verlander v Devon Waste Management & Anor

A court should decide a disputed factual issue by examining and evaluating the evidence. It may resort to the burden of proof only where that process leaves it unable rationally to find one way or the other.

This is an exceptional course in the sense that it becomes necessary only when the available evidence is conflicting, uncertain or insufficient. The judgment must show that the court tried to resolve the issue and explain why it could not. The detail required depends on the nature and complexity of the dispute.

An appellate court should intervene only where the evidence or the reasoning shows that the trial judge could reasonably have made a factual finding without resorting to the burden of proof.

The appellant claimed damages from his employer and the occupier of the workplace for negligence or breach of statutory duty. He alleged that he injured his back while lifting a heavy freezer several feet during a loading operation.

The respondents disputed the alleged mechanism of injury. The Recorder found the evidence on both sides unsatisfactory and held that the appellant had not proved, on the balance of probabilities, that the injury occurred through the substantial lifting movement necessary to establish liability. He therefore gave judgment for the respondents.

The appellant appealed from Taunton County Court. The central issue was whether the Recorder was entitled to determine the decisive factual dispute by resorting to the burden of proof.

1. The appeal was dismissed. Auld LJ delivered the judgment, with which Rix and Moses LJJ agreed. The Recorder was entitled to conclude that the appellant had not proved the alleged mechanism of injury on the balance of probabilities.

2. A judge should resort to the burden of proof only after unsuccessfully attempting to resolve the disputed factual issue by examining and evaluating the evidence. The word “exceptional”, as used in Stephens v Cannon [2005] EWCA Civ 222, means that resort to the burden is necessary only where the available evidence is conflicting, uncertain or insufficient and leaves no rational basis for deciding one way or the other. The burden of proof remains a legitimate and useful part of legal practice in that situation.

3. The trial judgment must enable the parties and an appellate court to discern that the judge tried to make the relevant finding and to understand why that effort failed. The necessary detail depends on the circumstances. A fuller analysis will usually be required, but the endeavour and reasons may sometimes be readily inferred without an extensive rehearsal of the evidence.

4. This case concerned a single, simple issue of primary fact. The only direct evidence supporting the appellant’s account was his own. The Recorder adequately explained that the appellant had been unimpressive, evasive, inconsistent and contradictory. Although the Recorder also mistrusted aspects of the defence evidence, he made clear that he could not find for the appellant even without those concerns. Further detailed analysis would have served no useful purpose.

5. An appellate court should intervene only where the nature of the case or the trial judge’s reasoning shows that the judge could reasonably have made a finding on the evidence without resorting to the burden of proof. That condition was not satisfied. The order was: appeal dismissed.

1. Court of Appeal (Civil Division): The court dismissed the appeal in [2007] EWCA Civ 835, holding that the Recorder had been entitled to determine the decisive factual issue by reference to the burden of proof.

2. Taunton County Court: Mr Recorder Henry dismissed the claim and gave judgment for the defendants because the claimant had not proved the alleged mechanism of injury on the balance of probabilities.