Neutral Citation Number: [2007] EWCA Civ 1263
Case No: B3/2007/1115
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE DEAN QC
6LB02481
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 29/11/2007
Before :

LADY JUSTICE SMITH
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Between :

	Mr Kenneth Webb	Appellant	
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	Mr Mark Harrington	Respondent	

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Mr Kenneth Webb via Telephone Conference Call

Hearing date : 27 November 2007
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Judgment
Lady Justice Smith: 
1.	This is a renewed application for permission to appeal the order of His Honour Judge Dean QC made at the Central London County Court on 14 March 2007.  Following a hearing on the issues of liability only, the judge dismissed the applicant’s claim for damages for personal injuries sustained in November 2002.  Permission to appeal was refused by Longmore LJ following consideration of the papers.  This morning, I heard the oral renewal by telephone link with the applicant who is now living in Australia.  Rather than give an oral judgment over the telephone, I decided to reserve my decision and give it in writing.       
2.	The applicant, Mr Kenneth Webb, sustained catastrophic injuries when he fell about 15 feet from the first floor of premises which were owned and occupied by Mr Mark Harrington at 11 Vine Court, London SE1.  The applicant suffered a complete fracture of the thoracic spine which has left him paraplegic.  He was only 39 at the time.  The accident has had a profound effect upon his life and, if he were to recover damages, they would be very substantial.   Notwithstanding the importance of this litigation, the applicant has been unable to obtain legal representation and has at all time conducted the litigation himself.  The judge below considered that he did so with considerable skill.  This morning, he advanced his application clearly, concisely and with great courtesy. 
3.	The premises where the accident occurred were formerly a warehouse but, by the time of the accident, had been converted into residential accommodation.  Mr Harrington lived there himself when in the UK and allowed friends or acquaintances to occupy various rooms under informal agreements.  The applicant paid about £300 per month for the use of a room on the first floor as a bedroom-cum-office.  There were three windows in the applicant’s room, two of which were on the front of the building and faced over a cobbled yard below and the third (set in a wall at right angles to the front wall) which overlooked the flat roof of the single storey building next door.  The larger of the two windows on the front had been a loading aperture when the building was a warehouse.  By the time of the accident, doors had been installed, in effect making a French window, and some horizontal railings had been fitted on the outside.  These were to prevent anyone from falling when the door was open.  The railings extended for a short distance either side of the aperture.  A few feet to the left of the French window, there was a conventional window, smaller than the French window, slightly recessed into the wall so that it had a sill about 6 inches deep.  The accident happened when the applicant fell from the railings which covered the French window.  
4.	Exactly what the applicant was doing immediately before he fell was a matter of dispute.  It was his case that the defendant, Mr Harrington, had informed him that he was expecting a window cleaner to attend at the premises and had asked him to inspect the condition of the smaller of the two front windows.  The applicant claimed that he understood from the defendant’s manner of asking him to do this that he was not in a position to refuse.  He considered that the only practicable way of inspecting the smaller window was to look at it by leaning towards it from the railings of the French window.  He said that he could not inspect the state of the window by looking through it; it was covered with a Venetian blind and there was desk in front of it which was covered with files and books and possibly computer equipment.  His evidence was that he opened the French doors (they opened inwards) and, with his back to the railings and his left foot on the sill, he put his right foot on either the first or second rail so as to lift his body far enough for him to be able to lean out backwards over the top railing and twist his body round so that he could better see the smaller window. Then, he said, his left foot seemed to slip from the sill and he lost his balance. He was unable to steady himself by grasping the railing, which seemed to be damp.  He fell.   
5.	The defendant challenged this account disputing that he had ever asked the applicant to inspect the window.  He said that on the morning of the accident, he noticed that the cover of his barbecue had apparently blown from his roof terrace on the third floor onto the neighbour’s first floor roof terrace. The defendant’s theory was that the applicant must have decided to retrieve it and, instead of gaining access to the roof terrace by opening his side window, the applicant must have decided to go out through the French window and clambered across the front of the building and round the corner to the neighbour’s roof terrace.  He must have lost his footing on the return journey. He pointed to the fact that the barbecue cover was found on the ground.  All this was supposition as he had not seen the accident.   
6.	The defendant’s theory as to how the accident happened was based on deductions from evidence given by a young woman named Kim Bailey.  At the time, she was the applicant’s girlfriend and she had spent the previous night (a Saturday) with him in his room.  By the middle of Sunday morning, she had had a shower and was sitting on the bed drying her hair.  She was sitting sideways on to the front window and did not claim that she was paying particular attention to what the applicant was doing.  However, her evidence was that he told her that he was going to retrieve the barbecue cover.  He then opened the French doors and went outside.  He stood on the railings and moved across the smaller window.  He then disappeared from view.  She heard the barbecue cover fall to the ground; it was found there later.  Then she heard a shout and saw the applicant’s foot slip from the top of the railing.  He fell.  She assumed that he fell as he tried to return to the French window.  She said that she was aware of a movement on the other side of the Venetian blind. Then she said that she saw one of the applicant’s feet on the top railing; it slipped and the applicant fell. She said that this had all taken less than a minute.  
7.	When this version of events was put to the applicant he denied it robustly.  He agreed that Mr Harrington had asked him to retrieve the barbecue cover but asserted that it was not urgent. He would either have out through the side window or would have waited until he saw the neighbours and would have asked them to get it.   He was not going for it that morning when he fell.  He said it had never crossed his mind to try to cross the building which would have been a ridiculous thing to attempt.  He would have thought it impossible save for someone with special training.  
8.	The applicant was permitted to put in a written report from a climbing expert who described the movements which would have to have been accomplished if a person were to cross the outside front of the building.  He said that it would have been very difficult but not impossible.  The applicant’s case on this was that it would have been well nigh impossible for him to make these manoeuvres and, if he had done so, it would have taken much more than a minute.     
9.	The judge preferred the evidence of Miss Bailey to that of the applicant and found as a fact that the accident had not happened as he claimed.  On the balance of probabilities, the applicant had fallen when he attempted to cross the front of the building.  The accident had occurred because he had chosen to do something dangerous and was not in any way the fault of the defendant. 
10.	In this application, the applicant submits that the judge was wrong to reject his version of events.  However, he can only challenge such a finding of fact successfully if there was no evidence on which the judge could base his finding or if the judge’s process of reasoning was irrational or clearly wrong. The applicant submits that the judge misunderstood the expert’s evidence. Properly understood, it was clear that it would have been quite impossible for him to get across the outside of the building and back in less than a minute.  That meant that Miss Bailey’s time estimate was inconsistent with the rest of her evidence and the judge should have rejected the whole of her evidence.  In addition, the fact that Miss Bailey was close to the judge when she gave evidence and was therefore able to have eye contact with him put her at a distinct advantage over the applicant.  He had had to sit in the well of the court, in his wheelchair, and the judge had been further away.  Eye contact had been difficult and at times the judge had had difficulty in hearing him.  This may well have accounted for the fact that the judge preferred Miss Bailey’s evidence to his.  Also, submitted the applicant, Mr Harrington’s evidence should have been rejected.  In one respect, he was plainly wrong. He had described the position of the applicant after the fall as quite different from everyone else.  He too was unreliable. 
11.	I am afraid I do not think that there is any possibility that the full Court of Appeal would accept these submissions.  The judge considered the witnesses’ evidence most carefully.  He was clearly concerned that the applicant was not represented in such a serious matter and made some allowances for that reason.  For example, he permitted the applicant to rely on his expert report despite the fact that he had not obtained permission as required by the rules.  The judge considered very carefully all the points that had been made relating to Miss Bailey’s credibility.  He also considered the applicant’s account very carefully and was of the view that it was inherently unlikely.  He noted that in order to fall at all, the applicant must have put himself in a position where at least some part of his body weight was n the wrong side of the rail. I think what he was driving at was that the applicant’s centre of gravity must have been on the wrong side of the rail because otherwise he could not have fallen outside the railing even if he had lost his footing.  After most careful consideration, the judge made his finding of fact and in my view there is no realistic possibility that the Court of Appeal would upset it.  
12.	 That in effect is the end of this application because it is common ground that, if the applicant had tried to cross the outside of the building, he was the author of his own misfortune.  
13.	Although the judge made a careful finding of fact, he also considered the case on the basis of the facts contended for by the applicant. He held that, even if the accident had happened while the applicant was leaning backwards in an attempt to see the smaller window, the defendant would not have been liable for the accident.  He observed that the defendant as landlord and occupier was under a duty to maintain the building so as to ensure that his lawful visitors (including the applicant) were reasonably safe for the purposes for which they were there.  The judge said that, even if Mr Harrington had asked the applicant to inspect the smaller window, he had not instructed him to do it from the outside. The method adopted would have been entirely of the applicant’s choosing and Mr Harrington could never have foreseen that the applicant might attempt to lean out over the railings.  There was nothing dangerous about the railings, when properly used. They might have been damp, due to the weather, and that might have meant that the applicant could not get a good grip on them. However, it could not possibly be said that the premises were not reasonably safe for the purposes for which the applicant was permitted to be there. 
14.	Finally, the applicant submitted that there had been ‘a material irregularity’ during the trial, as the result of which the trial had been unfair.  The judge’s decision should be set aside.  It appears that the defendant, Mr Harrington, was permitted to interrupt his evidence, to leave the court and to go to Edinburgh for a meeting.  His evidence was resumed when he returned and the applicant was then able to cross-examine him.  The applicant’s complaint is that this gave the defendant an unfair advantage in that he had a lot of time to think about and prepare himself for cross-examination.  I am afraid that this argument cannot avail the applicant. It is by no means uncommon for a witness’s evidence to be spread over more than one day; inevitably, the witness will have time to think about his evidence during the periodic inevitable adjournments.  Nor is it uncommon for a judge to release a witness for a time to enable him to meet another commitment.  If such a practice were to invalidate the hearing, it would be difficult to have cases heard at all. 
15.	I have great sympathy for the applicant who has suffered a grievous injury which has transformed his life for the worse.  But however great my sympathy, I cannot grant permission for an appeal to proceed as I am quite satisfied that it would have no prospect of success.  The application must be refused.  I would like to thank the applicant for his succinct and courteous submissions.