Somjee v Barnsley District General Hospital NHS Foundation Trust

Permission to appeal should be refused where none of the proposed grounds has a real prospect of success. A trial judge’s interlocutory rulings against a party do not ordinarily require recusal, particularly where they concern procedural matters and do not determine disputed issues of substance. An appellate court does not retry facts. It may interfere only where the finding lacks evidential support, is against the weight of the evidence, is perverse, or is plainly wrong. A breach of statutory duty does not establish causation without proof that the breach caused the accident. Responsibility for an accident is not presumed merely because a defect or breach existed.

The appellant claimed damages from a hospital trust for injuries suffered when she tripped on a pathway leading to doctors’ accommodation. The Liverpool County Court tried liability as a preliminary issue. His Honour Judge Platts found a minor tripping hazard and inadequate lighting, but held that neither caused the accident and dismissed the claim. He also rejected allegations of bias, collusion and evidential misconduct.

The appellant challenged factual findings, the judge’s conduct of earlier interlocutory applications, the application of workplace-safety regulations, causation, and alleged breaches of Article 6 of the Convention. She renewed an application for permission to appeal after permission had been refused on paper.

1. Application refused. The 29 proposed grounds disclosed no argument with a real prospect of success before the full court.
2. The incorrect reference to the accident having occurred in 2005 was an immaterial slip. The lower court’s judgment as a whole showed that the judge knew the accident occurred in 2002. A similar dating error concerning photographs could not reasonably have affected the judge’s detailed reasons for rejecting the appellant’s account of the accident.
3. A judge who has dealt with interlocutory applications may ordinarily conduct the subsequent trial. Procedural rulings adverse to one party do not, without more, create a conflict of interest or a reasonable appearance of bias. Recusal may be appropriate where earlier findings have created a pre-conceived view of a party’s credibility or otherwise make a fair trial inappropriate. That had not occurred here.
4. The Court of Appeal does not retry factual issues. Intervention is justified where there was no evidence supporting the finding, the finding was against the weight of the evidence, it was perverse, or it was plainly wrong. Judge Platts had given cogent reasons for rejecting the evidence that the flagstone was a substantial hazard and for finding that the lighting did not cause the fall.
5. The existence of poor lighting and a minor raised flagstone did not establish liability. The alleged breach of regulation 8 of the Workplace (Health, Safety and Welfare) Regulations 1992 was not causative. The judge was entitled to conclude that the pathway’s condition did not breach regulation 12, that failure to carry out a risk assessment under regulation 3 of the Management of Health and Safety at Work Regulations 1999 would not have altered the outcome, and that the duties under the Occupiers Liability Act 1957 had been discharged.
6. The complaints based on Article 6 and Article 6(1), including inequality of arms, were unsupported. The application for permission to appeal was refused.

• Court of Appeal (Civil Division): renewed oral application for permission to appeal refused; [2009] EWCA Civ 1126.
• Liverpool County Court: His Honour Judge Platts tried liability as a preliminary issue, found for the Hospital with costs, dismissed the claim and refused permission to appeal.