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Overturning a finding of fact — a warning to litigators

At 25 weeks pregnant Dr Clements slipped and fell causing injury to her unborn child while using the hotel’s outdoor spa facilities.

Master Clements-Siddall (A child proceeding by his Mother and Litigation Friend, Dr Susanna Mary Clements) v Dunbobbin Hotels Limited [Court of Appeal, 7 November 2023]


The claimant’s mother and Litigation Friend in these proceedings, Dr Clements, was, on 1 January 2017, staying at the defendant’s (respondent’s) hotel. Dr Clements was at that time 25 weeks pregnant and during the afternoon was using the hotel’s outdoor spa facilities which included a hot tub which had a raised decking area. Dr Clements slipped and fell causing injury to her unborn child.

A claim was brought by the child under section 1 of the Congenital Disabilities (Civil Liability) Act [1976] with the court at first instance trying breach of duty as a preliminary issue.

The judge at first instance, in finding for the Defendant, concluded that the accident occurred when Dr Clements missed her footing whilst on the stairs leading down from the spa pool. He went on to say that had the accident occurred (as Dr Clements maintained), when she fell from an unprotected leading edge of the raised decking area, he would have found the hotel in breach of duty. The claimant appealed.

Court of Appeal findings

The appeal was made on two grounds: firstly, that the judge’s finding of fact on the location of the accident was not open to him, as the case had proceeded “as an agreed fact”, that the accident had occurred where Dr Clements had alleged and not by Dr Clements slipping on the stairs. 

Contingently, if the first ground was not met, that the judge’s conclusion on the location of the accident was “plainly wrong” and it was a conclusion that no reasonable judge could have reached on the evidence. 

The leading judgment in the Court of Appeal was given by Lord Justice Stuart-Smith who recognised (paragraph 118) that “it is exceptional” to allow an appeal on the basis that a judge’s finding on the facts was “plainly wrong”. In Lord Justice Stuart-Smith’s words, “this is one of those exceptional cases”. 

There were several strands of competing evidence as to the accident circumstances which can be distilled as follows:

  • The claimant’s pleaded case and that maintained in the pre-trial hearing case summary and at trial was that Dr Clements had slipped forwards whilst putting her foot into a slipper. She had fallen forwards hitting her pregnancy bump on the second step of the stairs.
  • The defendant did not advance a positive case in its Defence as to how the accident occurred but simply made “no admissions as to the circumstances”. It denied the absence of a guard rail around the decking was negligent.
  • The accident report form was completed by Ms Bainbridge, a spa therapist. That form referenced the incident occurring when Dr Clements slipped coming downstairs. Her witness statement did not refer to any description of the accident provided to her by Dr Clements.
  • A typed note, purportedly prepared on 1 January 2017 by the hotel proprietor referenced that Dr Clements had “slipped on steps”. The witness was unclear as to when the document was created and it was not referred to in her witness statement. The document’s metadata was “discovered” whilst the trial was in progress and though this was not agreed or tested, it seemingly suggested that it was created during the afternoon of 1 January 2017.
  • A case summary prepared for a pre-trial hearing referenced the circumstances of the accident as occurring when the claimant slipped forwards on the decking and not “on the steps”. The case summary appeared before the court as an agreed document, though the defendant averred that the “mechanism of the accident remained in dispute”.
  • No formal objection was raised during the trial by leading counsel for the claimant, when Dr Clements was cross-examined on the accident circumstances.
  • Having seen and heard the claimant’s evidence in chief and cross-examination, the judge at first instance concluded that he would “treat her evidence with great caution”.

Lord Justice Stuart-Smith went through the evidence to include the trial transcript in a forensic manner, concluding that the judge’s decision to admit and decide the issue covering the accident circumstances was “procedurally unfair and wrong”, despite the lack of objection at the time.

Lord Justice Stuart-Smith concluded that Dr Clements’ version of the accident had been “agreed” prior to trial and that consequently, the judge should not have allowed her to be cross-examined on this issue. It was this which had ultimately caused the judge to be “materially mistaken” on the quality of her evidence. This in turn had materially affected his overall conclusions about the weight to be given to her evidence and the eventual outcome.

Further, he concluded that the judge’s reliance on the typed note was both “flawed and wrong” and that he had been wrong to disregard the unchallenged evidence of her partner.


Although there is overt recognition in this Court of Appeal judgment that to overturn a first instance judgment based primarily on findings of fact is “exceptional”, will LJ Stuart-Smith’s judgment be sufficient to allay litigators’ wider concerns that it may open the door to further appeals from unsuccessful parties?

Context is important:

  • It was the judge at first instance (and not the three appellate court judges) who had the benefit of listening to and seeing the witness give her evidence in chief and be cross-examined in person. That judge concluded that he would treat Dr Clements’ evidence “with great caution”.
  • The case summary document presented at the pre-trial hearing as an agreed document appears to have been raised to the status of a formal pleading, despite the practice of litigators to largely rubber stamp factual descriptions of the accident circumstances in the knowledge that the pre-trial hearing will concern itself primarily with procedural directions to trial and not be determinative of the issue of breach of duty.
  • That no objection was raised by the claimant’s Leading Counsel when the issue was raised during the trial.

Practitioners would do well in the future to observe the following: firstly, where the evidence allows, plead a positive case within the Defence document. Secondly, be wary of agreeing case summaries drafted by opponents where even the smallest factual inconsistencies exist, unless they are suitably caveated. Thirdly, practitioners should reference the precise circumstances — date and time and circumstances when any contemporaneous accident documentation is created — within formal witness statements.

An appeal to the Supreme Court appears likely. If so, it will determine the extent to which this case falls within the band of circumstances deemed “exceptional” to allow a finding of fact to be overturned by an appellate court.

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