B3/2001/1804
Neutral Citation Number: [2001] EWCA Civ 1618
IN THE SUPREME COURT OF JUDICATURE      
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE WEST LONDON COUNTY COURT
(His Honour Judge Cowell)
								Royal Courts of Justice
								Strand
								London WC2

								Monday 22nd October, 2001
B e f o r e:

LORD JUSTICE RIX

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MAYTAURUS THOMAS
Claimant/Applicant

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HAMMERSMITH AND FULHAM LONDON BOROUGH COUNCIL
Defendant/Respondent
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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040
Official Shorthand Writers to the Court)
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THE APPLICANT appeared on his own behalf

THE RESPONDENT did not appear and was not represented

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J U D G M E N T
1.	LORD JUSTICE RIX: This is Mr Thomas' application for permission to appeal against the dismissal of his claim for personal injury against his then employer, the Hammersmith and Fulham London Borough Council. He suffered an accident on 2nd July 1998 when he fell off a set of steps of some kind or other ‑ that was the essential issue in the case ‑ in the course of doing a job of work at Westville Road. Although at the time it did not seem that his injury was of any particular consequence, it has subsequently, as he alleges, given rise to considerable pain and difficulty. 
2.	His trial came before His Honour Judge Cowell on 13th June 2001. The critical issue of fact dealt with by the judge in his judgment, and which had arisen on the pleadings and on the witness statements, was whether the steps which had collapsed beneath Mr Thomas when he was doing work to a light fitting on the ceiling had been steps which had been issued to him by the defendant council and for which therefore they were responsible; or whether they were some other steps which he had supplied for himself. It was common ground that the steps had collapsed and that was the cause of Mr Thomas' fall, but the critical issue of fact before the court was: whose steps? The judge having decided that issue against Mr Thomas, he did not go on in his judgment to consider other matters. 
3.	The issue of fact was essentially tried upon the evidence of Mr Thomas, on the one hand, and Mr Hughes, who was Mr Thomas' manager, on the other. It was common ground that following the accident Mr Thomas went to Mr Hughes with the broken steps and an accident report was filled out by Mr Hughes in the presence of Mr Thomas, both of whom signed the report. The description of the accident was: 
“Fall from top of steps injuring shoulder arm and back.” 
4.	Mr Hughes also wrote the following on the report: 
“Inspected condition of steps. Bottom supporting rung collapsed and stairs are now too dangerous to use. 
Issue operative with new set of steps.” 
5.	Unfortunately, the broken steps were thrown away and did not survive as evidence. 
6.	At trial Mr Hughes gave evidence that the steps that he had seen, brought to him by Mr Thomas and which he had thrown away, were a relatively flimsy set of steps of only two steps; whereas Mr Thomas' evidence was that the steps he was using were the standard issue of the defendant council, a much more solid set of five steps. 
7.	The judge had the invidious and difficult job of deciding between the witnesses before him. In the end, he preferred the evidence of Mr Hughes, essentially on the basis of the support for that evidence which he found in the contemporaneous accident report. In particular, the references in the report of Mr Thomas falling from the top of the steps and the reference to the bottom supporting rung collapsing ‑ a reference which he took to indicate the cross‑supporting mechanism (rather than the step itself) which would give firmness to the steps and which we are all familiar with in domestic steps which we use in our homes. 
8.	Mr Thomas' evidence, on the other hand, was that he had not fallen from the top of the steps, but had had one foot on the second step and one foot on the third. 
9.	Today in his application before me Mr Thomas does not seek to submit that the judge wrongly analysed the evidence that was before him on the day of trial. But he submits that new evidence which he has been able to put together since the date of trial, or mostly since the date of trial ‑ not, I should say, exclusively since the date of trial ‑ supports his application for what would have to be a new trial. 
10.	He has assembled the new evidence very helpfully and clearly in a new bundle. It comprises further statements and details of his own, but also the statements of ex‑colleagues or tenants to the effect that he had been seen in times previous to the day of his accident (but also in the case of two statements on the day of the accident itself) using a standard issue five tread wooden steps. 
11.	He has also put before me photographs, admittedly taken after the trial, taken at the site of the accident, to indicate in effect that the smaller steps which Mr Hughes described would not have been high enough to enable him to carry out the job he was engaged on at the time of his accident; whereas the standard issue wooden steps would have been sufficient. 
12.	He has also put before me photographs taken in his own home, he told me before the trial, which show his equipment there: not only a standard issue extension ladder provided by the council, but also propped up there as well what appear to be the five tread wooden steps which were supplied by the council. He told me that those photographs were found, he said, just before the trial and presented to his legal representatives, but he was told that they were too late to put into evidence at the trial or at any rate did not prove what steps he was using on the actual date. 
13.	It seems to me that it would be wrong for me to see, on the basis of photographs available for the trial but not used at trial, any prospect of success in that respect upon appeal. 
14.	Potentially of more importance are two particular statements Mr Thomas has relied upon today. One is from a colleague or former colleague, a Mr Wade Brown, who has made a statement on 2nd September 2001, saying that he saw Mr Thomas on the day of the accident itself and saw the standard issue five tread wooden steps in the back of Mr Thomas' van that day. There is also both a handwritten and a typed statement from a Mrs Collins of 20 College Court, one of which says that on the day of the accident, 2nd July itself, Mr Thomas was at her flat repairing a bathroom wall heater situated about 96 inches from the floor. The other statement, the typed one, refers to July 1998 and says that she noticed a wooden ladder with about four to five steps on that day. 
15.	Neither of those statements are dated, although Mr Thomas has informed me that he was only able to obtain the statements from Mrs Collins after trial when he approached her as she was entering her home. He told me that the reason why neither Mrs Collins' statement nor Mr Brown's statement were before the court was that, in the case of his ex‑colleagues such as Mr Brown, they were reluctant to get involved in giving evidence against their employer; and in the case of Mrs Collins it was difficult to contact tenants. He told me that in the particular case of Mr Brown his difficulty in getting a statement for trial was that it had taken him time to get Mr Brown's mobile phone number. 
16.	The question for me is whether there is a real prospect of success on appeal or some other compelling reason why permission to appeal should be granted. The critical question there is whether Mr Thomas' new evidence would be admitted and, if admitted, whether it was credible and effective to make it necessary for a new trial to be held. 
17.	I should also have mentioned one other piece of evidence which Mr Thomas has put before me today, albeit is does not form part of his application to admit new evidence. It is his work book and it seems to contain on a day‑by‑day basis short references to the work that he performed each day, an address, a job number, a length of time. 
18.	MR THOMAS: It has also got the actual codes of the jobs which I have carried out, for instance, like ceiling roses and.... 
19.	LORD JUSTICE RIX: And the essence of the work done. 
20.	MR THOMAS: Yes, my Lord. 
21.	LORD JUSTICE RIX: Thus on the page for 2nd July 1998 there is a description of the accident itself. It begins, under the address at Westville Road: 
“Fell off faulty step which was given by company ... Second step from top broken in half. First when trying to gain balance ...” 
22.	There is also a reference to the job at 20 College Court, where Mrs Collins lives, on the opposite side of the page. Mr Thomas informed me that although this work book was in court, it was not seen by the judge. There is no reference to it in his judgment. I am therefore uncertain what use was sought to be made of it in the proceedings. It is not entirely consistent with the evidence that Mr Thomas gave in court, which was that he was standing on the second and third steps up when one of those steps broke precipitating his fall; whereas the second step down would be above the second and third steps up. 
23.	As I was saying, I have to consider what the potential value of the new evidence is and whether there is a potentially acceptable reason for the fact that such evidence was not before the court at the time of trial. I bear in mind the overriding objective. I regret to say that I cannot see a real prospect of success for the admission of this new evidence on appeal. It seems to me that there is really no explanation at all as to why the photographs said to have been taken, as I understand it, in June 1998, at a time when Mr Thomas was repairing his kitchen ‑ which was the reason, he tells me, for taking the photographs ‑ were not placed before the court. They were obviously available at the time. So was his work book. Plainly it would in theory have been possible for Mr Thomas to have obtained the statements of Mr Brown and Mrs Collins, and the other statements which are in the file of new evidence (but those are the critical ones), in the long run‑up to trial where he had the advantage of legal representation. Today he is acting as a litigant in person. 
24.	The position therefore is that the new evidence was either in fact available or potentially available at trial. Apart from Mr Thomas' oral explanations to me today, there is no really safe account of why it was that this evidence was not available at trial but has subsequently become available. One is left with the brief statements before me, which have come into existence in the circumstances which I have described, to set against the evidence of Mr Hughes, supported as it was by the terms of his own contemporary accident report which Mr Thomas had also signed himself. 
25.	It was not as though it was in doubt at trial that the council did issue its workers, such as Mr Thomas, with their standard issue of a five tread set of wooden steps. The question which the judge had to decide was whether it was those steps that Mr Thomas was using at the time of his accident. On the evidence which Mr Thomas, with the legal advice and representation that he had on the occasion of the trial, put before the court, the court concluded that the evidence of Mr Hughes and of the contemporaneous accident report was to be preferred. It seems to me that the material put before me does not raise a real prospect of this court saying, on appeal, that a new trial should be ordered, nor does it raise some other compelling reason for an appeal.
26.	For those reasons, which I have gone into at some length in deference to Mr Thomas' helpful and courteous submissions before me, I dismiss this application for permission. I know of course that it will come with regret to Mr Thomas, but it seems to me that that is my duty. 
ORDER: Application for permission to appeal refused.
(Order not part of approved judgment)