David Robertson v Cornwall Council

An appellate court reviewing a first-instance decision must not conduct a fresh evaluation of the evidence. It may interfere with primary factual findings only where they lack evidential support or no reasonable judge could have reached them. An evaluative decision may be overturned only for an identifiable flaw affecting its cogency.

In causation cases, the claimant need not prove the precise mechanism of an accident in every case. The court may draw a common-sense inference from the established primary facts. However, the claimant must still prove that the accident was probably caused by the particular defect which constituted a hazard. A cycleway’s failure to be flush with the road does not necessarily make every part of the transition a legal hazard.

The claimant appealed from an order of His Honour Judge Carr, sitting in the Truro County Court, dismissing his claim for damages for personal injury following a bicycle accident on the A3037 in Cornwall.

The claimant fell while crossing a raised kerb from the road onto a cycleway. He had traumatic amnesia and no witness saw the fall. The appeal challenged the adequacy of the judge’s reasons and his findings on causation and dangerousness. The central issues were whether the accident was probably caused by the kerb and whether the claimant had proved that he crossed at a part of it which constituted a hazard or trap.

1. Appeal dismissed. The judge’s reasons were adequate. Read in context, he found both that the claimant had not proved that the kerb caused the fall and, alternatively, that he had not proved that he crossed at a sufficiently raised and hazardous part of the kerb. The reasons enabled the parties and the appellate court to understand the basis of the decision.
2. The appeal was governed by CPR Rule 52.21. The appellate court was reviewing, not retrying, the case. It was not its function to decide whether it would have reached the same conclusion. Primary findings of fact could be disturbed only where they were unsupported by the evidence or no reasonable judge could have reached them. An evaluative decision could be challenged only for an identifiable flaw such as a gap in logic, inconsistency or failure to take account of a material factor.
3. There was no general rule requiring the precise mechanism of an accident to be proved. A court may use a common-sense and pragmatic approach and infer probable causation from the totality of the evidence. The judge’s apparent separation of “mechanism” from “cause” was therefore erroneous. On the evidence, the finding that the kerb was not the cause was very surprising and, if it had been the only issue, might have justified appellate intervention.
4. That error did not determine the appeal. The claimant also had to establish that the part of the kerb which caused the fall amounted to a hazard or trap. The fact that the cycleway was not flush did not necessarily establish that the whole kerb was dangerous. Relevant considerations included the height of the kerb, the angle and speed of approach, the bicycle wheel, and surface conditions. The judge was entitled to attach weight to the absence of measurements, the variable height of the kerb and the quality of the photographs.
5. The claimant’s fall did not itself prove that he had crossed at a hazardous point. The evidence did not establish where he crossed. The judge was therefore entitled to conclude that the claimant had not proved that his accident was caused by a hazardous part of the kerb. The argument concerning the cycleway sign creating a trap did not arise.

• High Court (King’s Bench Division): appeal from the Truro County Court dismissed. The order dated 4 October 2023 was upheld.
• Truro County Court: His Honour Judge Carr dismissed the personal injury claim.