Whiting v First/Keolis Transpennine Ltd

An appellate court should not interfere with a trial judge’s findings of fact merely because another view is reasonable or possible. The appellant must identify objective grounds showing that a different view is the right one, or that the reasoning process or application of law requires it.

Agreed expert evidence does not determine the ultimate facts where experts have proceeded on assumptions which the court must itself assess. A judge may weigh expert and lay evidence together, but should reject agreed technical evidence only rarely, cautiously and with adequate reasons.

A train guard owes a duty to assess reasonably the risk to people near a moving train. The duty is not a guarantee of safety and must not be set at an impracticably high level.

The appellant suffered severe injuries after falling from a station platform between two carriages of a stationary train, which then moved away. He alleged that the respondent, through its guard, had negligently failed to observe his movements and prevent the train’s dispatch.

Liability was tried as a preliminary issue in the High Court before His Honour Judge Gore QC, sitting as a deputy judge. The judge accepted the guard’s evidence, found that the appellant had fallen between carriages 3 and 4, and dismissed the claim. He also made an alternative finding of 33% contributory negligence, which was not appealed.

The appeal challenged the factual findings, the treatment of agreed expert evidence, and the scope of the guard’s operational duty. The central issue was whether the judge was compelled to interfere with the trial decision.

The appeal was dismissed. The Court of Appeal held that the challenge was, in substance, an appeal on questions of fact. The appellant had not shown that the trial judge’s findings were ones no judge could properly make.

1. The applicable appellate restraint was stated by reference to Cooperative Insurance Society General Insurance Limited v Hamid and Khalid [2017] EWCA Civ 201, Fage UK Limited v Chobani UK Limited [2014] EWCA Civ 5 and Subesh v Secretary of State for the Home Department [2004] EWCA Civ 56. A different view that is merely reasonable or possible is insufficient. The appellate court must be satisfied that objective grounds require a different conclusion.
2. Agreed expert evidence is normally rejected only with caution and adequate reasons: Liddell v Middleton [1996] PIQR P36. However, the court must decide the wider factual issue on all the evidence where expert opinions depend on assumptions which may prove incorrect. The approach in Cooper Payen Limited v Southampton Container Terminal Limited [2003] EWCA Civ 1223; [2004] 1 Lloyd's Rep 331 applied. The judge had not ignored the medical or engineering evidence, but had weighed it against the guard’s direct evidence and the timing evidence.
3. On the accepted evidence, the appellant was still leaning against the wall when the guard made his final check, and the train departed in substantially less time than the period needed to reach the gap between carriages 4 and 5. The finding that he fell between carriages 3 and 4 was therefore open to the judge.
4. Train staff owe a duty of care to people close to a moving train, but the duty is to take a reasonable view of the risk in the circumstances, not to guarantee safety. The guard complied with Section 8, paragraph 8.3, and paragraph 6.1 of the Rule Book. Having seen an apparently drunk passenger at the wall without signs of movement towards the train, he discharged that duty. There was no requirement to dispatch from another cab or put his head outside the cab window.

The order dismissing the claim was upheld.

• Court of Appeal (Civil Division): The appeal from the High Court was dismissed on 17 January 2018.
• High Court, Queen’s Bench Division: Liability was tried as a preliminary issue before His Honour Judge Gore QC, sitting as a deputy judge. The claim was dismissed on 19 February 2016. An alternative finding of 33% contributory negligence was not appealed.