Preliminary findings on factual causation and dangerousness

GJ v Merthyr Tydfil County Borough Council

In civil matters, the claimant has the burden of proving factual causation and dangerousness on a balance of probabilities.

In some cases, it is apparent from the outset that the claimant is likely to face difficulties in reaching this standard of proof. It is important to continually monitor this after disclosure and exchange of witness statements particularly.

Unless the claim is discontinued in the meantime, the claimant will be cross-examined at trial. If appropriate, the trial judge can be invited to make a preliminary finding at that stage and prior to the defendant adducing their own oral evidence.

Such a situation arose in the case of GJ v Merthyr Tydfil County Borough Council, in which Dolmans represented the Defendant Local Authority.

Background and allegations

The Claimant alleged that he was attending a skatepark which was effectively occupied and maintained by the Defendant Local Authority at the time of his alleged accident. The Claimant alleged that he was descending a ramp on a scooter, when a wheel of the said scooter caught on a protrusion which brought the scooter to an abrupt stop and caused the Claimant to fall to the ground. As a result, the Claimant allegedly sustained personal injuries and suffered various losses. The Claimant was an adult at the time of the alleged accident.

It was alleged that the ramp was dangerous and posed a foreseeable risk of harm to users. As such, the Claimant alleged that the Defendant Local Authority was negligent and/or in breach of the Occupiers’ Liability Act 1957.

Defence

The Defendant Local Authority denied liability. The skatepark was scheduled for regular inspection and maintenance, as well as having a reactive system in place. The ramps were of metal construction and any repairs were undertaken by an experienced fitter.

Independent inspections of the skatepark were also undertaken and no issues were raised with the Defendant Local Authority’s system or repairs and no dangerous issues raised regarding the ramp in question at the time of the relevant pre-accident independent inspection. In addition, no actionable defects or issues were noted during the Defendant Local Authority’s inspection of the ramp prior to the date of the Claimant’s alleged accident. No dangerous issues were noted.

The Defendant Local Authority had no record of any complaints in relation to the alleged defect or any similar issues with the ramp during the 12 month period prior to the date of the Claimant’s alleged accident. The Defendant Local Authority had no record of any other accident occurring as a result of the alleged defect or any similar issues at the location of the Claimant’s alleged accident during the 12 month period prior to the date of the same.

Evidence

The Defendant Local Authority served copies of relevant documents and detailed witness statements from appropriate personnel in support of the above Defence. In addition, a witness statement was obtained from an agency that had undertaken a search of the Claimant’s social media accounts.

It was apparent from the Claimant’s disclosure and witness evidence that there were inconsistencies within the Claimant’s pleaded case. The Claimant’s copy medical records indicated that the Claimant had allegedly fallen from the top of the ramp, contrary to his pleaded case. In addition, the Claimant disclosed various photographs which showed different ramps and repairs. It was apparent from the Claimant’s photographs of the alleged ramp that the wheel of the scooter could not have come to an abrupt stop if descending the ramp, as alleged. There was a very small difference in levels at the edge of the ramp where the metal structure was attached to the ground, but it was argued that this was not dangerous and would only have been relevant if the Claimant had been travelling in the opposite direction to that pleaded anyway.

Trial, Cross-Examination and Tactics

It was, of course, for the Claimant to prove that the accident occurred in the circumstances alleged, that the alleged defect had caused the accident and that the said defect was dangerous.

Although there appeared to be enough evidence on paper to cast sufficient doubt upon the Claimant’s case, it was decided that the Claimant should be cross-examined and a decision made as to whether or not the Trial Judge should be invited to make a preliminary finding upon factual causation and dangerousness.

The Claimant was thoroughly cross-examined. It transpired that at the time of the alleged accident, the Claimant was riding a scooter that was normally ridden by a young family member but which could be adjusted to the Claimant’s size. The Claimant alleged that this was not, therefore, a child’s scooter, but could also be ridden by adults.

The Claimant gave evidence that the back wheel of the scooter caught the alleged protrusion, but this did not make sense as the front wheel would have initially come into contact with the alleged protrusion. The Claimant then stated this could be wrong and that he could not remember the circumstances of the alleged accident exactly. Indeed, many of the Claimant’s responses under cross-examination were that he did not know or could not remember. Even when cross-examined as to the actual ramp and the alleged cause, the Claimant was somewhat vague.

Faced with such weak oral evidence and coupled with the inconsistencies within the Claimant’s written evidence, it was decided that there was sufficient scope for the Trial Judge to make a finding on factual causation and dangerousness, before hearing the Defendant’s oral evidence.

Judgment – Preliminary Issue

The Trial Judge was invited to determine, as a preliminary issue, whether he could be satisfied as to how the Claimant’s accident had occurred, if there had been a defect present and had it been a real source of danger.

The Trial Judge took note of the various uncertainties introduced within the Claimant’s oral evidence under cross-examination. The Claimant could not be sure of the actual ramp which he allegedly rode down and could not even say whether the photographs adduced showed the condition of the ramp at time of the alleged accident.

The Trial Judge took judicial note that the scooter which the Claimant was riding at the time was unlikely to be suitable for an adult, despite the Claimant’s statement to the contrary.

The Claimant was unsure which wheel caught on the alleged protrusion following cross-examination as to the same and the Trial Judge could see no way how the alleged protrusion could have caused the wheels to stop abruptly when the Claimant was travelling down the ramp.

The Trial Judge advised that he had considered the evidence carefully and given as much latitude as possible, but it was not enough for the Claimant to say that there was no other explanation for the cause of the alleged accident. The Claimant had to make a positive case for factual causation and dangerousness, but had not reached the required standard.

As such, the Claimant’s claim was dismissed and the Trial Judge made no finding of fundamental dishonesty.

Comment

It should be noted that the Trial Judge in this particular matter was invited to make a preliminary finding as to factual causation and dangerousness. Although this was not worded at the time as a submission by Counsel for the Defendant Local Authority that the defence had no case to answer, the objective was effectively the same.

When making a submission of no case to answer, the defendant risks being precluded from calling their own evidence. The defendant needs to be aware of these risks and as certain as possible therefore that the claimant is unlikely to prove factual causation and dangerousness.

After careful consideration of the weaknesses in the Claimant’s written and oral evidence in the above matter, the correct decision was made to invite the Trial Judge to make a preliminary finding, which resulted in substantial savings in damages and costs for the Defendant Local Authority.

Tom Danter is an Associate at Dolmans Solicitors.