Absolvitor upheld in tripping case

In the recent Court of Session Opinion in the case of Iain Pocock v Highland Council [2017] CSIH76, the Inner House (Appeal Court) upheld the Decision of the Lord Ordinary rejecting the Pursuer’s Grounds of Appeal and upholding the absolvitor (ie. the Defenders were absolved from any liability).

The case originally came before the Outer House in relation to a tripping accident involving Mr Pocock in February 2012. The Pursuer sought damages for an injury to his knee after tripping on a raised paving slab in the centre of Inverness. The case turned on the Lord Ordinary’s assessment of the evidence, in particular on the nature of the defect at the time and the repair action taken.

In a Proof before Lord Clark conflicting evidence was led concerning the measurement of the unevenness of the paving slab. The Pursuer’s case was that the height difference was 28 mm. However the Defenders’ position was the height difference was less than 20 mm. In absolving the Defenders of liability Lord Clark preferred the evidence given by the Defenders’ witness, Local Authority Roads Inspector Miss Yvonne Lowe who stated that in January 2012 she issued a works instruction for the defect requiring repair within twenty-one days explaining that for that to have happened the defect must have been less than 20 mm.

The Pursuer sought to appeal the Lord Ordinary’s Decision on three grounds. The first and second ground related to the Lord Ordinary’s assessment of the evidence regarding the height differential.

It was argued he erred in failing to find the irregularity was 28 mm. Esto to those arguments the Pursuer argued that if the irregularity was taken to be less than 20 mm that should nevertheless constitute a trip hazard. This was based on the whole circumstances of the case and not merely upon the evidence of Miss Lowe.

In reaching their Opinion the Inner House gave due consideration to the evidence led in front of the Lord Ordinary. They had little difficulty finding that there was no merit in the Pursuer’s first or second grounds of appeal. The Inner House found that the Lord Ordinary clearly found Miss Lowe to be a credible and reliable witness and gave her evidence considerable weight. He was entitled to do so and thus he resolved the conflict in evidence.

In terms of the Pursuer’s third ground of appeal again the Inner House were not persuaded that the Lord Ordinary had erred.

They found the Lord Ordinary had weighed up all the relevant evidence and applied the law correctly. It was not accepted he gave undue weight to the evidence of the Roads Authorities and they were unable to identify an error in his approach and conclusions. As such the Reclaiming (Appeal) Motion was refused.

This case demonstrates the difficulty parties have seeking to appeal a Decision where that Decision was based on the credibility and reliability of the witnesses and the Court is required to carry out an assessment of the law against that background.

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