John Harrison v Tui UK Limited

A renewed application for permission to appeal will be refused where the proposed grounds merely challenge factual findings that were open to the trial judge and the evidence was evaluated as a whole. A judge may assess the likely probabilities arising from limited evidence, provided the judge does not disregard relevant evidence. Where liability depends on alternative factual scenarios, the alternatives may be assessed cumulatively if success on any one would establish the claim. Fresh evidence that could have been adduced at trial will generally not justify changing the case on appeal.

The claimant sought renewed permission to appeal against judgments of Recorder Cameron at Sheffield County Court following a three-day trial concerning injuries sustained after a fall at a Portuguese resort hotel.

The trial judge found that the pleaded case, namely that the claimant had fallen from a path outside an emergency exit, had not been proved. He subsequently refused permission to amend the claim after judgment to rely on an alternative scenario in which the claimant had approached the emergency exit from outside and fallen there. Eady J refused permission on the papers. The central issues were whether the trial judge had misapplied the evidence and whether he had wrongly assessed the alternative scenarios.

1. The renewed application was refused. The proposed grounds had no realistic prospect of success.
2. The trial judge had evaluated the evidence as a whole. His identification of two particularly persuasive considerations did not show that he had treated them as merely a starting point or ignored the remaining evidence. He was entitled, given the limited direct evidence, to assess the likely probabilities and conclude that evidence which was not inconsistent with the claimant’s case did not prove it on the balance of probabilities.
3. The trial judge was entitled to assess the claimant’s wife’s evidence as expressing an honest belief about what had happened rather than direct observation of the claimant walking towards the emergency exit. He was also entitled to regard the incident report and subsequent installation of safety measures as insufficient to establish how the accident occurred, since no witness had seen it and the basis for the relevant assumption was unexplained.
4. The proposed reliance on the translated ambulance record could not properly alter the appeal. The points based on it had not been relied on at trial, and the document could have been adduced below. In any event, it did not materially improve the evidential case.
5. On the amendment issue, the trial judge had considered the two alternative claimant scenarios cumulatively. He was entitled to find that the competing scenario, namely a fall while walking along the service road, was at least equally consistent with the evidence. Accordingly, neither claimant scenario was proved to the civil standard and the claim would have failed even if the alternative case had been pleaded at trial.

There was no order as to costs because the respondent was not represented at the hearing.

1. High Court (King's Bench Division): renewed application for permission to appeal refused.
2. Sheffield County Court: Recorder Cameron dismissed the claim in a judgment given on 20 November 2019 and refused a post-judgment amendment application in a judgment dated 24 March 2020.
3. High Court on paper application: Eady J refused permission to appeal and gave detailed reasons.