Case No: B3/2006/2675
Neutral Citation Number: [2007] EWCA Civ 835
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TAUNTON COUNTY COURT
(MR RECORDER HENRY)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 27th June 2007
Before:

LORD JUSTICE AULD
LORD JUSTICE RIX
and
LORD JUSTICE MOSES

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Between:

	VERLANDER	
Appellant	
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DEVON WASTE MANAGEMENT & ANR	

Respondent	

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Mr T Grice (instructed by Messrs Harris Fowler) appeared on behalf of the Appellant.
Mr S Levene (instructed by Messrs Veitch Penny) appeared on behalf of the Respondent.

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Judgment
Lord Justice Auld:
1.	The single broad issue in this appeal is whether on a claim by Mr Verlander, the appellant, in negligence or breach of statutory duty before Mr Recorder Henry in the Taunton County Court for injury to his back when lifting a refrigerator at work, the Recorder was entitled on the evidence before him to find that he had not established his case on a balance of probabilities.  More precisely, the issue is whether the Recorder, having expressed reservations about the quality of the evidence on both sides, was entitled to dismiss the claim as he did by ruling that Mr Verlander had not discharged the burden of proof as to the way in which the claimed accident, said to be causative of the injury, occurred.  

2.	The material facts, briefly stated, are that on 30 August 2002 Mr Verlander, a casual worker in the employ of Backline Logistics Support Services Ltd (“Backline”), the first respondent, was engaged at the premises of the Devon Waste Management Ltd (“Devon Waste”), the second respondent, with three of Devon Waste’s or Backline’s workmen, in manhandling and stacking from a forklift truck scrap refrigerators and freezers into the trailer of an articulated lorry.  He claimed that his back injury occurred when he and one of the Devon Waste team, Shane Woolley, were lifting a heavy industrial freezer on top of a layer of refrigerators already stacked in the trailer.  His pleaded case was: 

“The injury occurred when the claimant was trying to stack a large industrial freezer on top of other articles to a height of about 4 to 5 feet.  He twisted round to try to position the freezer and felt his back suddenly go with immediate severe pain.”

3.	Devon Waste and Backline took a common line by way of defence, namely non-admission of Mr Verlander’s account of the fact or circumstances of his accident and by specifically putting him to proof of it.  As the Recorder acknowledged in paragraph 3 of his judgment, it was common ground at the trial that, unless Mr Verlander could establish a lifting movement to the next level of stacking and that the respondents had required him to undertake it, he could not establish negligence or breach of statutory duty.  This is how the Recorder in that paragraph saw the issue:

“The primary issue for me to determine is whether the claimant has proved on the balance of probabilities that he was injured while lifting a fridge at the premises and if so how it was caused.  It has sensibly been conceded on behalf of the claimant that if the injury was caused during the course of sliding fridges or lifting them just a few inches in order to move them then this claim must fail because neither negligence nor a breach of statutory duty could be established.  The case pleaded is that the claimant was lifting a freezer to a height of four to five-feet.  I accept that the exact height does not matter, but it follows that before liability can flow under either head of claim the claimant must prove that on a balance of probabilities he was required to stack these items manually in the sense of lifting them up to the next level and that that caused the injury.”

4.	The parties stand by that analysis of the issue on this appeal, namely, that the crucial issue for resolution by the Recorder was the mechanism of the claimed injury, more particularly whether it was occasioned by a substantial lift of the freezer of some feet.  Mr Verlander was the sole witness in support of his account of what happened.  He said that he and Mr Shane Woolley had to lift the freezer some four to five feet from the level of machines on which they were standing to the next level and that it was that lifting movement that caused his injury, not some other manoeuvre such as sliding the freezer or minimal lifting of a few inches to clear the lip of another machine.  He said that when it happened he fell to the ground with pain, which must have been obvious to those with whom he was working.  

5.	Mr Verlander’s account in evidence of what he did next, in particular of remaining at work for some four hours before cycling home early, conflicted with the account he had given in his witness statement.  He said that he had telephoned Backline to report the accident but there was no record of any such accident report.  And, on his visit to a National Health Service walk-in centre the following day and to a physiotherapy acute injury clinic a few days later, he was recorded as having said that he had injured his back while lifting a fridge but also mentioned that he had had some back pain over a week before the claimed accident, something that in evidence he initially denied.

6.	There was medical evidence that he had suffered a back injury consistent with lifting and that he had since been off work for a long time.  That evidence, as the Recorder observed, was consistent with the claim but it was not probative of the mechanism of the injury in issue in this case; and of course it depended on his own account of that mechanism to the doctors.

7.	Devon Waste and Backline called a number of witnesses, including Shane Woolley and his brother Glen Woolley, another member of the loading team, who denied Mr Verlander’s account of having to lift the machines when manoeuvring them in the trailer or having seen him suffer any injury of the sort he described or being in pain.  Their evidence and that of Andrew Vickery, an environment officer of Devon Waste, was that it was a sliding, not a lifting, operation following the raising of a machine by Mr Mountjoy, the forklift truck driver, to the appropriate level.

8.	The Recorder in his short but, in my view, well-constructed judgment indicated considerable unease about the evidence on both sides.  As to Mr Verlander, he was particularly damning at paragraph 5 of his judgment, stopping only just short of saying that he disbelieved him.  He began by saying:  

“I did not find Mr Verlander to be an impressive witness by his answers and his demeanour and his evidence was inconsistent and contradictory.  I have had to approach his evidence with caution.”

9.	He went on in the same paragraph to illustrate his cause for concern, describing Mr Verlander as “evasive”, inconsistent in a number of material respects, in particular with his witness statement, with the absence of any documentary record of his claimed report of the accident to Backline, and in the account he gave of previous back pain to the walk-in centre, initially denied in evidence, and in matters going to credit elicited by the defence tending to show that he was prone to exaggeration.  

10.	Finally as to Mr Verlander’s case, in paragraph 6 the Recorder picked up the medical evidence and its consistency with his case but put it and its limitations in context by saying:

“That evidence does not prove the mechanism of the injury but, it is urged upon me, is consistent with the claim.  The question is whether despite my reservations about his evidence I can be satisfied that the injury was caused in the way he described.”

11.	Having reached that inconclusive state of mind as to Mr Verlander’s case and evidence, and having posed what, in my view, was the correct question, he turned -- arguably unnecessarily -- to the defence evidence.  As to that evidence, the Recorder expressed considerable reservations going to the single and critical issue in the case: whether Mr Verlander’s work on the day or the nature of the work had involved any significant lifting of the machines.  He said he was satisfied that some of the defence evidence showed there to have been a degree of “closing of ranks and obfuscation” on the part of defence witnesses.  In particular, at paragraph 8 he said: 

“I find it hard to accept that the process of loading was as smooth and free from risk as has been claimed.  I suggest that a degree of lifting above a few inches is inevitably required for the positioning of these fridges and freezers …”

However, he made no specific finding on the evidence of any of the defence witnesses on that point.

12.	In the light of that conflict and incompleteness of unimpressive evidence, the question for the Recorder was, as he said, whether having regard to his reservations about Mr Verlander’s evidence he could be satisfied that the injury had been caused in the way he claimed.  This is how he answered the question in paragraphs 8, 10 and 11 of his judgment:

^^(checked to audio)“8. … I have not found much, if any evidence, reliable in this case.  In short, I find that there has been exaggeration on both sides.  On the one hand to maximise the case for the claimant and on the other to minimise the responsibility of the defendants.
“10. It is for the claimant to prove on the balance of probabilities that the injury was caused while stacking the freezer in the way I have described.  Given my reservations about his evidence and despite my misgivings about the defence evidence I have heard, I am unable to find that he has proved his case.
“11. For that reason this claim must fail and I give judgment for the defendants.”

13.	Mr Timothy Grice, on behalf of Mr Verlander, has submitted that the Recorder, in failing to make or attempt to make any findings of fact on the critical issue before him and, in disposing of the claim by resort to the burden of proof, erred in two main and interrelated respects.  First, he appeared to have rejected or to have taken no account of evidence supporting Mr Verlander’s account, including contemporaneous documentary material, and to have done so without any or any adequate explanation; and secondly, that his resort to the burden of proof was contrary to principle and practice as set out and summarised by this court in Stephens v Cannon [2005] EWCA Civ 222.  

14.	As to the first of those submissions, going to the Recorder’s treatment of the evidence, in particular on the issue of Mr Verlander’s credibility, Mr Grice’s main complaints -- which he elaborated in his oral submissions today and which are fully set out in his skeleton argument -- were first, that the Recorder had not had sufficient regard to the medical evidence consistent with Mr Verlander’s account of the injury to his back; secondly, he had not had sufficient regard to a withdrawn witness statement of Shane Woolley which had partially supported Mr Verlander’s claim but from which he resiled in evidence in court; thirdly, the evidence of Mr Vickery that, although refrigerators and freezers could be slid from the fork truck into position in the trailer so there was no need to lift them, regular workers, but not casual workers like Mr Verlander, were trained in the correct method of loading; and fourthly, a series of detailed criticisms of the Recorder’s reaction to individual aspects of Mr Verlander’s evidence, identified in Mr Grice’s skeleton argument at paragraph 9, going to the issue of his credibility.

15.	Proper consideration and evaluation of all that evidence, coupled with findings on matters in issue where possible, Mr Grice submitted, should have led the Recorder to find that the system of working by its nature necessarily prompted some lifting and carrying which Mr Verlander should have been trained to avoid and that his account of what happened was true.

16.	In my view, there is no substance to any of those complaints.  As the Recorder observed, the medical evidence was consistent with, but not probative of, the mechanics of the injury on which he based his claim.  The Recorder had clearly well in mind the possible significance of the withdrawal by Shane Woolley of his witness statement; he made an oblique reference to it in paragraph 5.2 of his judgment in his observation about “closing of ranks and obfuscation” on the part of defence witnesses, and specific reference to it in paragraph 7 of his judgment.  It was a matter for the Recorder what, if any, weight he gave to Shane Woolley’s evidence in the light of his earlier withdrawn witness statement, which was plainly not much, given the Recorder’s general indictment in paragraph 8 of his judgment of unreliability all round.  But whatever weight he gave, or should have given to such evidence would not, it is clear, have dispelled his unease expressed and explained earlier in paragraph 5 of his judgment as to the truth of Mr Verlander’s evidence on the critical issue of lifting.  The same applies to whatever could be made of Mr Vickery’s evidence of the need for training in such work and to the detailed commentary of Mr Grice in his skeleton argument and his oral submissions today of the Recorder’s evaluation of the individual aspects of Mr Verlander’s evidence going to the issue of his credibility, none of which would entitle this court to intervene on that issue.

17.	As to Mr Grice’s second submission in reliance on Stephens v Cannon, that was an issue in a dispute heard by a Master over a contract for a sale to, and development of land by, a buyer as to valuation under an “overage” condition that obliged the buyer on its resale after development to pay to the seller part of the profit on the resale.  In the face of conflicting evidence from experts as to the putative resale value of the land, if it had been developed and sold as provided for in the contract, the Master found that, as he was unable to prefer one valuation over the other, the case fell to be decided on the basis of the burden of proof, and on that basis the seller’s claim failed. 

18.	Wilson J, after reviewing the authorities, set out with Arden LJ and my agreements a number of propositions at paragraph 46 of his judgment, namely:  
“(a) The situation in which the court finds itself before it can despatch a disputed issue by resort to the burden of proof had to be exceptional.
“(b) Nevertheless the issue does not have to be of any particular type.  A legitimate state of agnosticism can logically arise following inquiry into any type of disputed issue.  It may be more likely to arise following an enquiry into, for example, the identity of the aggressor in an unwitnessed fight; but it can arise even after an enquiry, aided by good experts, into, for example, the cause of the sinking of a ship.
“(c)  The exceptional situation which entitles the court to resort to the burden of proof is that, notwithstanding that it has striven to do so, it cannot reasonably make a finding in relation to a disputed issue.
“(d) A court which resorts to the burden of proof must ensure that others can discern that it had striven to make a finding in relation to a disputed issue and can understand the reasons why it has concluded that it cannot do so.  The parties must be able to discern the court’s endeavour and to understand its reasons in order to be able to perceive why they have won and lost.  An appellate court must also be able to do so because otherwise it will not be able to accept that the court below was in the exceptional situation of being entitled to resort to the burden of proof.
“(e) In a few cases the fact of the endeavour and the reasons for the conclusion will readily be inferred from the circumstances and so there will be no need for the court to demonstrate the endeavour and to explain the reasons in any detail in its judgment.  In most cases, however, a more detailed demonstration and explanation in judgment will be necessary.”

19.	Perhaps I can, without damage to that analysis, summarise it by reducing it to two main propositions.  First, a judge should only resort to the burden of proof where he is unable to resolve an issue of fact or facts after he has unsuccessfully attempted to do so by examination and evaluation of the evidence.  Secondly, the Court of Appeal should only intervene where the nature of the case and/or the judge’s reasoning are such that he could reasonably have been able to make a finding one way or the other on the evidence without such resort. 

20.	The court in Stephens v Cannon found, having regard to the multiplicity of the issues between the two experts going to the valuation of the hypothetically developed and sold property, that the Master, having ventured no finding in relation to any of them, had wrongly resorted to the burden of proof in dismissing the seller’s claim.  The court also had some concern that the Master might have taken his task as one of choosing between the valuers’ conflicting evaluations instead of attempting to assess the probable value of the property in the light of them both.  

21.	Mr Grice submitted that this was not, in Wilson J’s terminology, an “exceptional” case justifying resort to the burden of proof, since there was ample evidence on which the Recorder could have found for Mr Verlander.  He instanced the scope for Mr Verlander to have lifted the freezer in the manner he had described and the consistent injury to his back reported by him to the walk-in clinic and the physiotherapy centre shortly afterwards.  Alternatively, Mr Grice submitted, the Recorder did not adequately explain why he felt obliged to resort to the burden of proof, in violation of the well-known principles described by this court in Emery Reimbold v Strick Ltd and Others [2002] EWCA Civ 605, and Baird v Thurrock Borough Council [2005] EWCA Civ 1499, and, in the context of the issue in this case, in the propositions of Wilson J, as he then was, in Stephens v Cannon.  He suggested that the Recorder should have analysed the competing evidence in more detail and should not have contented himself with general observations as to the unreliability of the evidence on both sides, and should have attempted to make some findings of fact, issue by issue, point by point, as the opportunity in the evidence arose.  

22.	Mr Levene’s contrary submission was that, on their own terms, the Stephens v Cannon propositions did not outlaw a resort by the Recorder to the burden of proof in the circumstances of this case.  He advanced two main reasons for that submission.  First, it was common ground that this was a single, simple and narrowly-defined issue of primary fact on which the whole case turned, namely whether Mr Verlander in one alleged significant lifting movement, one of some feet, injured his back.  Secondly, he submitted that the Recorder made all too plain in paragraph 5 of his judgment why he resorted to the burden of proof, in truth, that he did not believe Mr Verlander’s evidence, no doubt stopping short of branding him as a liar out of a natural sensitivity to the feelings of litigants by judges in such a state of mind.  

23.	In my view, the Recorder’s resort to the burden of proof in the circumstances of this case -- one, I have just said, of a single, simple issue of primary fact in which the only direct evidence supporting Mr Verlander’s account was his own, the Recorder, for the reasons which in my view he adequately gave, had clearly no faith in what Mr Verlander told him.  He was unimpressive as a witness, evasive, inconsistent and contradictory.  It is plain, as the Recorder said in paragraph 10 of his judgment, that, even without the misgivings he had about some of the defence evidence, he would not have been able to find in his favour.  

24.	When this court in Stephens v Cannon used the word “exceptional” as a seeming qualification for resort by a tribunal to the burden of proof, it meant no more than that such resort is only necessary where on the available evidence, conflicting and/or uncertain and/or falling short of proof, there is nothing left but to conclude that the claimant has not proved his case.  The burden of proof remains part of our law and practice -- and a respectable and useful part at that -- where a tribunal cannot on the state of the evidence before it rationally decide one way or the other.  In this case the Recorder has shown, in my view, in his general observations on the unsatisfactory nature of the important parts of the evidence on each side going to the central issue, particularly that of Mr Verlander, that he had considered carefully whether there was evidence on which he could rationally decide one way or the other.  It is more than plain from what he has said and why, that he concluded he could not.  Further, more detailed analysis by him of the evidence and rehearsal of his views on it would, in my view, have been otiose.

25.	For those reasons I would dismiss the appeal.

Lord Justice Rix:	
26.	I agree.

Lord Justice Moses:   
27.	I also agree.

Order:  Appeal dismissed.