Bollito v Arriva London

An appellate court should rarely interfere with first-instance findings of fact founded on the judge’s assessment of conflicting oral evidence and witness credibility. A challenge that merely re-runs the factual case will not justify permission to appeal where the trial judge has analysed the evidence carefully, given a coherent judgment and reached conclusions open to him on the evidence. Such factual conclusions are generally not amenable to appellate interference.

The claimant suffered very serious head injuries after becoming trapped in the closing doors of the respondent’s moving bus. Mr Justice Nelson found the bus driver entirely to blame. The judge refused permission to appeal, and Tuckey LJ subsequently refused permission on the papers. The claimant renewed the application before the Court of Appeal, challenging the judge’s resolution of conflicting evidence, particularly the evidence of an independent passenger and the claimant’s companions. The central issue was whether the factual findings could properly be revisited on appeal.

1. Application refused. The Court of Appeal dismissed the renewed application for permission to appeal.
2. Appeals against findings of fact are very rarely entertained where the findings depend substantially on the trial judge’s assessment of witnesses whom he heard give oral evidence. The appellate court does not normally re-try such factual disputes.
3. The proposed appeal principally re-ran the factual case advanced at trial. It relied particularly on the evidence of an independent passenger and argued that the judge had insufficient reasons for rejecting that evidence.
4. Those submissions did not do justice to the judge’s careful analysis of the evidence as a whole. His judgment addressed the conflicting accounts in detail, including whether the driver had opened the doors, whether the claimant was between the doors when they closed, and whether he fell or deliberately jumped. The judge was entitled to accept the evidence of Mr Damiano and reject aspects of the driver’s and Mr Boyd’s evidence.
5. The judge’s factual conclusions were coherent and open to him on the evidence. They were therefore not amenable to appeal. The formal order was: Application refused.

• Queen’s Bench Division: Mr Justice Nelson found the bus driver 100 per cent to blame for the claimant’s injuries and refused permission to appeal.
• Court of Appeal (Civil Division): Tuckey LJ refused permission on the papers. Lord Justice May refused the renewed application: