Matthew Turner secures re-trial in occupiers’ liability claim where trial judge failed to give reasons for decision
Matthew Turner acted for the successful defendant in the recent case of Fortino v Persimmon Homes Limited.
Background
The claim involved an accident on a building site where the Defendant was the main contractor. The Claimant, a scaffolder who was employed by a scaffolding sub-contractor, claimed he was injured as a result of the Defendant’s breach of the common duty of care under the Occupiers’ Liability Act 1957.
The original trial took place on 12th April 2021 before a deputy district judge in Brighton County Court. During cross-examination, the Claimant accepted, among other things, that various parts of his witness statement were wrong, and that he was at fault for the accident.
In a short ex tempore judgment, the Judge found for the Claimant on the basis that there was a “failure of duty”, and held there was no contributory negligence. However, he failed to explain how there was a breach of duty, or how there was no contributory negligence. Despite being asked twice to clarify or expand his reasoning, he refused to do so, simply stating “It is a matter for the court to decide”.
The Defendant appealed the decision on the basis that the Judge did not provide any, or any adequate, reasons for his decision. This is a narrow and unusual ground of appeal. Although not strictly contained within the wording of CPR 52.21(3), it has been long recognised by the courts as a good self-standing ground of appeal.
Outcome
Upon receipt of the Defendant’s Grounds of Appeal and Skeleton Argument, Her Honour Judge Venn, granted the Defendant permission to appeal and stayed the execution the trial judge’s order.
The Claimant subsequently consented to the Defendant’s appeal application.
Therefore, in December 2021, His Honour Judge Simpkiss granted the appeal application and ordered that: (1) the order of the trial judge be set aside; and (2) the matter be re-listed for a re-trial before a different judge pursuant to CPR 52.20(c).
Consequently, the appeal was successful on the strength of the Grounds of Appeal and Skeleton Argument, without a hearing even being required.
The Defendant was represented by Matthew Turner instructed by Karen Lau and Elizabeth Wallace of BLM. Matthew specialises in clinical negligence, personal injury, inquests, actions against the police, and professional discipline He welcomes instructions in all types of personal injury work.
An in-depth Passle article on this case is available here.
