The appellant (L) appealed against a decision that the respondent local authority was not liable to her in damages for injuries sustained when she tripped over a protruding manhole cover on a pavement controlled by the local authority.
The trial judge concluded that the local authority had breached its statutory duty and allowed L's claim for damages. When making that decision the trial judge had regard to the opinions of several witnesses when considering what constituted "dangerousness" . The local authority was given permission to appeal on the basis that the trial judge, by taking into account the evidence of L's daughter (R) and a surveyor employed by the local authority (C), had taken into account irrelevant matters. On appeal the judge then made his own decision, conducting a balance between public and private interests, that the manhole cover was not dangerous.
(1) The appeal court had to have regard to the advantage the trial judge had in hearing the evidence and had to examine whether the findings of primary facts were justified. Even if there was no misdirection the appellate court was entitled to assess for itself whether on those facts an inference or finding of dangerousness was justified. In the instant case the appeal judge was misled in so far as both parties conducted the case on the basis that he was exercising a discretion. However he was right to examine whether the trial judge misdirected himself or relied on evidence which he should not have relied on. (2) R was the claimant's daughter and was thus not independent. C might have borne some responsibility for any failure to repair and thus evidence against his interest might be more relevant than evidence which sought to lessen his responsibility. Their evidence was not irrelevant but the trial judge put R's evidence a little higher than R had put the matter herself and was unfair in concluding that C's view as to the safety of the manhole cover was that it was in serious need of repair. Although C was a far from independent witness it was not fair to construe his report as amounting to some sort of admission as to dangerousness. If the evidence of R and of C could not be put as high as the trial judge put it, the question was whether there was evidence from which the trial judge could conclude that the manhole was dangerous to an extent that should impose a duty on the local authority to have eliminated it. There was not.