Hawksworth v Chief Constable of Staffordshire & Anor

A party who considers that evidence falls outside the opposing party’s pleaded case must ask the trial judge to rule on the objection. If the objection succeeds, the opposing party may seek an amendment. A party who permits the evidence to be given and contested without obtaining a ruling cannot ordinarily complain after judgment about the course taken at trial.

An appeal will also fail where the challenged evidence did not determine the result because the trial judge reached an independent conclusion that was fatal to the claim.

The appellant developed tinnitus after the sound of a fire alarm was transmitted through a police radio system to the headset she wore as a communications officer. She claimed damages from her employers in negligence and for breach of statutory duty. The county court dismissed the claim after rejecting her expert evidence and finding that she had not proved exposure to sound exceeding the relevant safe level.

Permission to appeal was granted solely on whether the judge had wrongly relied on evidence about sound-attenuation software in officers’ radio handsets when the respondents had not specifically pleaded reliance upon that software. The appellant contended that her expert had consequently lacked proper notice of the case to be answered.

1. Appeal dismissed. The evidence concerning the NCT and VOGAD sound-attenuation software was plainly in issue before and during the trial. It had been addressed in the respondents’ witness evidence and expert report, in the appellant’s expert response, during oral evidence and in written closing submissions. The appellant could not fairly characterise its use as an ambush.
2. Applying the procedural guidance in Rolled Steel Products Holdings Limited v British Steel Corportation & Others [1986] 1 (Ch), counsel who considers that evidence or questioning departs from the pleaded case must invite the trial judge to rule on the objection. If the judge excludes the material, the party relying upon it may apply promptly to amend its pleading. Merely asserting that the material is irrelevant, without obtaining a ruling, is insufficient. The appellant had an opportunity to pursue the objection at trial but failed to do so. It was too late to complain on appeal.
3. The amended defence was ambiguous but could reasonably be read as denying an internal limiter within the fixed telecommunications equipment while leaving open reliance on limiting mechanisms in the headset and the officer’s handset. Tomlinson LJ doubted that the proposed objection would have succeeded or that an amendment would have been required. Toulson LJ considered that excluding the evidence as an ambush would have been hopeless.
4. In any event, the county court had independently found that the appellant failed to prove that the sound exceeded 118 decibels or that the headset’s current-limiting diodes had malfunctioned. That finding rested on the rejection of the appellant’s expert evidence and was not dependent on the handset software. It was independently fatal to the claim.

Toulson LJ and the Chancellor agreed that the appeal should be dismissed.

1. Court of Appeal (Civil Division): The appeal was dismissed. The challenged software evidence was already in play, the appellant had failed to obtain a ruling on her pleading objection at trial, and the county court had made an independently fatal finding.
2. Stoke on Trent County Court: HHJ Main QC dismissed the claim by a reserved judgment dated 17 February 2011 and delivered on 24 March 2011. Permission to appeal was initially refused on the papers. On renewal, permission was granted on the pleading and software-evidence ground alone.