B3/2004/2088 
Neutral Citation Number: [2005] EWCA Civ 430
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM LIVERPOOL COUNTY COURT
(HIS HONOUR JUDGE MACKAY)
Royal Courts of Justice 
Strand 
London, WC2 

Thursday, 7th April 2005
 
B E F O R E:

LORD JUSTICE PILL 
LORD JUSTICE GAGE 
SIR MARTIN NOURSE 
 
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COLIN CLOUGH
Claimant/Appellant
-v-
 
P&O TRANS EUROPEAN (HOLDINGS) LIMITED 
Defendant/Respondent 
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(Computer-Aided Transcript of the Palantype Notes of
Smith Bernal Wordwave Limited
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 - - - - - - -

MR DAVID FLOOD (instructed by Messrs Maxwell Entwistle & Byrne, Kirby L32 8RR) appeared on behalf of the Appellant
MR NICHOLAS GRIMSHAW (instructed by Messrs Ricksons, Manchester M2 1DW) appeared on behalf of the Respondent
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J U D G M E N T
1.	LORD JUSTICE PILL:  This is an appeal by Mr Colin Clough against a decision of His Honour Judge MacKay given on 16th September 2004 in the St Helens County Court.  The judge dismissed a claim by the appellant for damages against P&O Trans European (Holdings) Ltd, the respondents, at whose premises he was working.
2.	The claimant is a mechanic, and a skilled and experienced workman.  He was injured on 19th December 1999 while employed by another company which was doing contract work at the respondents' premises on the respondents' vehicles, which were commercial vehicles.  The appellant was involved in the servicing of the vehicles.  That included inspecting and maintaining a suspension unit, a part of some of the vehicles, the purpose of which was to suspend the vehicles so as to make it easier to drive and to reduce the shocks caused by contact between the tyres and the road surface when travelling.
3.	A metal component, described as a bell or piston, is attached by bolts to a suspension arm on the underside of the vehicle.  On the relevant trailer, the suspension unit on the nearside was badly damaged and the appellant replaced the air bag and the piston and reinflated the suspension unit by inserting pressure.  The appellant then turned to the offside unit.  The judge described what followed in this way: 
"7.  ... The claimant was the only person there at the time and that evidence is not to be gain said and seems likely anyway.  He says that he saw a crack in the bell.  It is clear that bells do get cracks.  It is clear that bells need repairing.  It is clear that bells are replaced and it is clear also that it is part of the general servicing of the vehicle to check these suspension units and to ensure that they are sound and in good condition.  I am told, and I accept, from both sides, that if a suspension unit piston or bell is cracked then it is replaced but it is clear that we are dealing with alloy or plastic and a small crack can become a large crack and once the integral nature of the suspension unit is interfered with it ceases to work and being driven along the motorway at a high speed, the vehicle braking could be a danger not only to itself but to other road users.
8.  So, the claimant was entirely justified in being interested in the suspension unit, in seeing the crack, which he says he saw, and in deciding to further investigate the unit, first of all by looking at it to see how big the crack is and also, almost certainly, replacing the suspension unit.  He had a jack in the area across the pit and so he says that he needed to lower the jack and he pressed the appropriate button, which I have seen on the photographs, and the jack lowered.  What he says is that he had his hand at the side of the jack, which was a short way from the suspension unit, when suddenly and without warning the suspension unit broke apart, the bell cracking, breaking, part of it at least flying out the short distance to the claimant's hand, which was resting on a suspension part of the jacking mechanism, and causing serious damage to that hand."

4.	There was an issue of fact as to whether the breaking apart of the unit was a spontaneous failure, as the claimant alleged, or whether it was caused by the application of external force.  If external force, it must have been applied by the claimant who was the only person there and on that finding his claim would fail.  The judge accepted the claimant's evidence that he had noticed a crack in the relevant bell just before the failure occurred.
5.	The appellant goes on to claim that the respondents were negligent in failing to have a regular system of inspection and maintenance of the suspension units.  The previous service had been in August.  It appeared from maintenance records disclosed only during the hearing that inspections were normally carried out at eight to ten-week intervals, and it appears likely that a service in about October had been missed.  The appellant submits that had an inspection been conducted in accordance with the regular pattern, the probability is that the crack would have been present and the bell accordingly, following the usual practice, would have been replaced.
6.	The judge found that there was nothing wrong or defective about the suspension unit itself, or the position in which it was used.  Many thousands of them had been produced by reputable manufacturers.  The judge also found at paragraph 18:
"... it is quite clear that the piston or bell of the unit is not made of a substance which will resist external trauma and therefore there is a risk of cracking and cracking can regularly be seen and is an established part of the service and the replacement of cracked units."
7.	The judge's findings are at paragraphs 19 to 21:
"Therefore I have to decide what caused that incident.  There can be no doubt that the piston came off its arm.  I do not accept that even if cracked a piston can come off the arm.  I accept that units may fail but it seems to me far more likely that if they fail, they fail and retain the piston position, or they are banged by some external force and the piston position is dislodged.  Therefore I find it much more likely that the piston position in this case was dislodged by external force.
20.  The cracking, it seems to me, is interesting but not conclusive.  There were cracks and the crack that was seen by the claimant in the suspension unit plainly did exist, but I am asked to believe and to accept that merely by putting air into such a unit with a crack in it could result in the whole unit becoming dislodged.  I do not accept that because if that were correct then this accident would have happened more than once and in more places than just the defendants' premises and therefore it would have become obvious in the industry that the offset method was to be not followed and the only method which would be allowed would be the method of putting the piston entirely on the beam.

21.  Therefore I reject the assertions by the claimant's engineer that the offset method produced a danger and I reject that evidence and I accept in its entirety the evidence of the defendants' engineer for the reasons which I have given and also that the evidence of the defendants' engineer better elides with and chimes with the facts of this case as we know them.  Therefore I have come to the conclusion that the happening of this accident was caused by the claimant striking the suspension unit.  I am sure he does not believe this, but it is what I believe."

8.	In an overall conclusion at paragraph 26 the judge stated:
"It seems to me to be far more likely that the claimant unfortunately came into collision with the unit and brought about the unhappy accident which occurred and therefore, there being no issue on contributory negligence, which I have to decide, I find against the claimant on liability and this action is dismissed."
9.	There is no appeal against the judge's rejection of the evidence of the claimant's engineer in relation to the offset method.  The judge rejected that by way of detailed consideration in paragraph 17, and I have mentioned the subsequent references to that rejected allegation.
10.	As to causation, the judge found at paragraph 22:
"... that there is no evidence as to when the crack appeared."
11.	The judge accepted that:
"... the crack may have come from some defect in the piston but I consider it far more likely that the crack came from its use as a lorry and from some incursion of some material, for example a brick, a piece of rubble, an item on a motorway, and therefore one does not know how long this crack had been there and I am wholly unable to say that if the vehicle had been looked at eight or twelve weeks earlier that this crack would have been discerned and I reject the evidence of the claimant's engineer and I consider that issue to be speculative."
12.	Before considering the challenge to the judge's findings, I refer to the evidence which was before the judge.  In addition to the claimant there was evidence from two expert witnesses, Mr Cullen for the claimant and Mr Brady for the defendants.  The experts each provided reports and then, in accordance with good practice, a joint report was prepared.  It is dated 21st July 2004: 
"2.4 ... For the accident to have occurred, it would appear to have required the unit to have been pressurised to some degree.  The higher the pressure within the suspension unit, the greater the likelihood of a severe injury occurring.
...
2.6  In the absence of any other external forces or influences, the off-side suspension unit could have spontaneously failed at the moment the Claimant's hand was near to it.  However, it is more likely that it was acted upon by some external force.  At the time of the incident the Claimant was altering the position of the jack and therefore, given the coincidence of a failure at this time, the most likely explanation for the sudden failure of the suspension unit would be that it was inadvertently struck by the V block as it was being moved by the Claimant."

13.	Following that report, unfavourable as it was to the claimant, his solicitors put written questions to Mr Cullen, who did not alter the position he had taken.  He stated, in a report dated 8th September 2004:
"The difficulty is reconciling the timing of coincidence of the failure and the position of the Claimant's hand.  It would be expected that the failure would occur when the unit was pressurised i.e. when the Claimant re-pressurised the system to check out the nearside suspension unit which he had just repaired and/or when the trailer was taken off the jacks.  Why the offside suspension did not fail at that time but shortly after when he was moving or was about to move the jack away is difficult to understand."
Later:
"Whilst it is possible that the failure could have occurred at the instant the Claimant placed his hand as seen in photograph 6, it is perhaps more likely that something he did allowed the already failed unit to move."
14.	The matter was further considered by the claimant and those advising him, and a supplementary report was provided by Mr Cullen on 10th September 2004.  That provided:
"c)  Re-pressurisation of the suspension part of the system was then initiated by the Claimant to allow the nearside suspension unit to be tested.  At or about the same time, the Claimant started to lower the jacks.  This would have the effect of transferring the trailer weight from the jacks onto the suspension units.
d)  Whilst the suspension was re-pressurising and the trailer was lowering, the Claimant placed his hand on the jack in order to move it when it was unloaded.  However, this final movement and increasing load/pressure on the suspension unit was sufficient to cause final complete failure.  The geometry of the suspension unit was such that the applied load was now unrestrained and forced the offside suspension unit towards the offside jack, trapping the claimant's hand."

15.	It became clear to the respondents that the further report was based upon evidence from the appellant other than that contained in the witness statement which had been disclosed.  This led to discussion on the first day of the trial, as a result of which it was agreed that the appellant would provide a further witness statement setting out this further evidence so that the respondents would know the position.  The further statement included these paragraphs:
"5.  Having replaced the nearside suspension unit I then reconnected the ride height valve to allow air from the airline back into the suspension system and re-pressure the airbags.  Once the system is re-connected it takes about two minutes at most to reach full pressure.
6.  I then noticed that the offside suspension piston had a crack in it.  This was the suspension unit directly opposite the unit that I had just replaced.  I turned to have a closer look at this crack.  My view of it was partially obscured by the position of the offside jack ram.  In order to move this ram I turned the knob to release both of the vertical jack rams.

7.  Once the jack release button is turned it takes about five seconds for the vertical ram to drop sufficiently so that it can be moved horizontally along the jack.  After I had turned the release knob I placed my right hand on the vertical ram of the jack to wait until I could move it.  My hand had been in this position for a maximum period of five seconds when the offside suspension piston broke into two and the larger of the two pieces, which constituted about 90% of the part struck the outside of my right hand, momentarily trapping my right hand against the vertical ram of the jack."

16.	On a consideration of the fresh statement, the engineers produced a further joint report.  At paragraph 2 it stated:
"It therefore appears the suspension unit was pressurised and therefore could have spontaneously failed."
17.	Paragraph 4:
"Re Joint Statement dated 21.07.04.
a)  Mr Brady still considers that this is a reasonable alternative explanation for the accident.

b) Mr Cullen considers that this has now been superseded because of the new statement by the Claimant."

18.	Thus, submits Mr Flood for the appellant, the door was opened to a finding that the more likely explanation for the accident was the spontaneous failure to which the experts referred.  That, he rightly submits, is accepted as a possibility provided the unit was pressurised.  Mr Flood seeks to rely on the fact that Mr Brady has in the agreed report simply referred to the view previously taken by both experts as a reasonable alternative explanation for the accident, rather than stating that in his view it was the more likely one.
19.	I see no merit in a point based on the terminology used by Mr Brady.  Mr Brady was rightly recognising that it was for the judge upon a consideration of the evidence as a whole, including that of the experts, as to which of the explanations was the more likely.
20.	It is also submitted that the experts accepted that the claimant's account was a plausible one.  That, Mr Flood submits, presents a higher likelihood than merely being a possibility.  While I accept that the word "plausible" was not being used in the derogatory sense in which it sometimes is, I cannot read the word (and neither was the judge obliged to read the word) as meaning anything more than a possibility.
21.	Mr Flood's submission is essentially based on a consideration of the judge's findings at paragraphs 19 and 20.  He submits that the judge must have misunderstood the evidence because of statements he made in those paragraphs, and particularly the statement in paragraph 20 that he did not accept that "merely by putting air into such a unit with a crack in it could result in the whole unit becoming dislodged."  He submits that that is contrary to the acceptance by Mr Brady of the possibility that the accident could have happened in the way the appellant described.  The finding of fact was inconsistent with the agreed expert evidence, and on that basis the decision of the judge cannot stand.
22.	Helpfully and persuasively though Mr Flood has made his submissions, I am unable upon a consideration of the judgment as a whole to accept them.  The judge plainly understood that he was considering which of two possibilities was the more likely, which on a balance of probabilities was established.  That is plain from the words he used at paragraphs 19 and 26.
23.	In reaching the conclusion he did, the judge was entitled to have regard to the background.  The fact that the unit was under some pressure was, as Mr Flood accepts, introduced by the appellant only at a late stage, the joint experts taking a view adverse to the appellant on the information then available to them.
24.	The judge was also entitled to have regard to the absence of previous incidents of this kind and to regard as material the fact that there was no evidence before him of spontaneous breakages of the kind which it is claimed by the appellant occurred here.
25.	Third, there was considerable evidence on the question of the amount of pressure present in the suspension unit when, on the appellant's evidence, the breaking apart occurred.  The appellant had accepted in his statement given on the first day of the trial that it would take two minutes for the unit to be fully under pressure.  His statement then, persisted in his oral evidence, was that the accident happened within a matter of seconds from when pressure began to be introduced.  It is common ground that there would be far less pressure in the unit after a matter of seconds than there would be a minute, and particularly two minutes, later.  That has a bearing, as was recognised by the experts, upon the probabilities.  The spontaneous breaking up is less likely, given the modest amount of pressure which can have been in the unit, than it would have been had the unit been fully under pressure.
26.	Paragraph 19, in my judgment, with its use of the expression "more likely", adopts the correct test and demonstrates that the judge had in mind the issue to be decided.  While the wording of that paragraph is not entirely clear, it appears to me consistent with the overall conclusion he subsequently expressed.
27.	I do have more difficulty with paragraph 20, on which Mr Flood particularly relies.  He fairly makes the point that when Mr Brady agreed that the appellant's account of what happened was a possible or plausible one, he is likely to have known that only limited pressure was present in the unit.  Though it may well be that the very limited nature only became fully obvious in the course of the oral evidence, that is after the joint statement was made.
28.	Moreover, the further criticism can be made of paragraph 20 that it includes a non sequitur, because it does not necessarily follow from the fact that there had been no previous accidents of this kind that this accident could not have happened.  It was a factor to be taken into consideration, but it did not necessarily follow.  The judge no doubt had in mind the coincidence which was involved in the appellant's account of what happened and that was a factor which, along with the others, he was entitled to take into account.
29.	It may be that in expressing himself as he did in paragraph 20, the judge still had in mind his rejection of the claimant's expert evidence as to the offset method, and what he was seeking to reiterate was his conclusion at paragraph 17 that the use of the offset method was not one which had contributed to this accident and there was no breach of duty in following the method of work which was adopted.  It may be that was in the judge's mind when he made the statement he did in relation to not accepting the possibility, as he appears to have stated, that the unit could not be dislodged in the circumstances which were present.  The judge undoubtedly had in mind the limited extent of the pressure present at the material time which undoubtedly, in my judgment, was a factor be considered.
30.	Whatever difficulties are presented by paragraph 20, the question is clarified by the judge's findings at paragraph 21.  In that paragraph he makes clear that he is accepting in its entirety the evidence of the respondents' engineer.  That is an important finding because the respondents' engineer regarded the external force possibility as being the greater of the two and, because there were only two possibilities, a probability.
31.	In paragraph 21 the judge also made specific reference to his findings in relation to the appellant's credibility.  He did so, both in that paragraph and later, in a way which he considered tactful.  Undoubtedly it was tactful, but in my judgment there is plainly a finding which he was entitled to make, having heard the evidence, against the background to which I have referred, that the appellant's evidence was not credible.
32.	Moreover, the overall conclusion at paragraph 26 again indicates a correct approach to the question.
33.	Having analysed the judgment, it is in my view one which should stand.  The judge was entitled to make the findings he did.  He was entitled to conclude that the respondents' submissions as to how the accident had happened produced the more likely explanation, and he expressed his reasons for that sufficiently.  Accordingly, the appellant's appeal would fail at that stage.
34.	I do, however, go on to consider the question of causation.  Mr Flood submits that while the judge was entitled to reject the evidence of the defendants' engineer as to the possibility of metal fatigue, the judge should have gone on to consider the evidence from the respondents' engineer and to his evidence that "time was of the essence".  The expression "time was of the essence" does not conclude the matter.  The question is whether, assuming as the judge did (and rightly in my view did) on the evidence that there was a breach of duty in a failure to inspect in October, that failure on balance of probability led to the accident which happened.
35.	The judge was entitled to come to the conclusion he did, plainly stated in paragraph 22.  I will not repeat it.  On the evidence, including the possibility of trauma while the vehicle was in use on the roads and having regard to the fact that the speed with which cracks could develop left the matter entirely open, the judge was entitled to conclude that, on balance of probabilities, the absence of an October inspection did not cause the failure which happened.  There was nothing in the evidence which required him to conclude that the crack would have been present at the time of a putative inspection in October.  It was, as the judge stated, "speculative".  There was no reason why he was required to conclude that the crack was present at that time, rather than to conclude as he did that it was not made out that the crack was present at that time, and accordingly that the claim should fail on the basis that causation was not proved.
36.	Accordingly, even had I found that the accident happened in the way for which the appellant contended, he would have failed on causation in that the judge was entitled to make the finding he did.
37.	For those reasons, I would dismiss this appeal. 
38.	LORD JUSTICE GAGE:  I agree.  In this case there were two principal issues.  First, the question of how the accident happened and, second, even if the accident had occurred in the way in which the appellant said it did, whether it was caused by the negligence of the respondents.
39.	So far as the first issue is concerned, the submission made by Mr Flood is that the only eyewitness to the accident was the claimant himself and his version of events was one which was consistent with an agreed view of both the two experts.  In support of his submissions he relies on a passage in paragraph 20 of the judge's judgment, to which my Lord has referred.  Effectively he submits that in that passage the judge ruled out the explanation of the claimant which both experts had agreed as a possible explanation for the accident.
40.	At first sight there would appear to be some force in this submission, but in my judgment the reasons of the judge have to be considered in respect of the whole of the judgment.  It is perfectly clear from paragraph 13 of the judgment that the starting point for the judge was the version of events given by the claimant.  He stated (and I quote part of paragraph 13):
"What the claimant says is that after he had finished work on the nearside unit, he in fact put pressure into the system and in fact he operated the levelling valve and the levelling valve was towards the centre of the trailer, about six feet away from where he had been working and he walked there, operated this, came back to the jack and operated the jack, which would be a matter of a few seconds, and it was at this stage, when the pressure was going in and the jack was being lowered, that the accident occurred."
He continued at paragraph 14:
"How could this accident have occurred without there being some external force or trauma on the machine, on the suspension unit?"
41.	The respondents' expert gave evidence that in the light of that evidence by the claimant, there can have been little air pressure within the system at the time that the accident occurred.  Having rejected the evidence of the appellant's engineer, the judge made it clear that he accepted the respondents' engineer's evidence in its entirety.  It seems to me that paragraphs 19 and 20 of his judgment must be read in that light.  In my judgment, he was quite entitled to accept the respondents' engineer's evidence.  Having accepted it, it is clear that that evidence was not consistent with the appellant's evidence.  In the circumstances, in my judgment, the judge was quite entitled to accept as more probable than not the explanation for the incident given by the respondents' engineer.
42.	For those reasons, in my judgment the appeal fails on that ground.  I also agree, for the reasons given by my Lord, that the appeal fails because the appellant is unable to make out that the accident was caused as a result of any negligence of the respondents.
43.	For these reasons, and those given by my Lord, I would dismiss this appeal.
44.	SIR MARTIN NOURSE:  I too would dismiss this appeal and there is nothing I can usefully add.
ORDER:  Appeal dismissed with costs assessed in the sum of £8,000 plus VAT on items where VAT is appropriate; Mr Flood's instructing solicitors to have liberty to apply in writing within seven days on one of two bases: (1) that the matter should still go for detailed assessment; or (2) they can put forward an alternative figure.  If they make such an application, anything in reply from Mr Grimshaw to be served within seven days thereafter. 
(Order not part of approved judgment)