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Judge's Factual Findings in Congenital Injury Case Ruled 'Plainly Wrong'

It is a very rare event for the Court of Appeal to find that a judge's assessment of factual evidence is plainly wrong. However, that is what occurred in an unusual case concerning serious injury said to have been sustained by an unborn child.

The boy's mother, who was 25 weeks pregnant with him, struck her abdomen when she fell after using a hotel's outdoor jacuzzi. He was alleged to have suffered serious injury as a result and a compensation claim was launched against the hotel's owner under the Congenital Disabilities (Civil Liability) Act 1976.

The mother gave evidence that she fell from the unprotected leading edge of an area of raised decking running alongside the jacuzzi. Following a trial, however, a judge found that she missed her footing whilst on the stairs leading from the jacuzzi. On that basis, he dismissed the claim.

Upholding the mother's challenge to that outcome, the Court found that it was, at the start of the trial, an agreed fact that the fall occurred in the location she alleged. There being no dispute about that, it was not an issue properly before the judge. Questions as to where the accident happened were only raised during the trial, resulting in procedural unfairness and prejudice to the boy's case.

The Court went on to rule that certain factual findings made by the judge were plainly wrong. On the issue of the location of the mother's fall, he relied almost exclusively on a contemporaneous note of the accident that was manifestly unreliable. He did not have regard to the unchallenged evidence of one witness and made unjustified criticisms of testimony given by the mother, whose honesty as a witness was never questioned.

Reversing the judge's decision, the Court found that there was no rational basis on which he could have found otherwise than that the accident occurred on the raised decking. Given the judge's finding that the decking's leading edge was unguarded, there was only one logical outcome and the Court entered judgment for the boy on the issue of breach of duty.

The Court noted that it is exceptional for an appeal to be allowed on the basis that a judge's findings of fact are plainly wrong. Judges who decide cases on the evidence are the primary arbiters of fact and the Court emphasised that the outcome of the appeal should not be taken as an encouragement to others to lodge similar challenges.

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