Pigford v Sunderland [2003] EWCA Civ 823

Case No B3/2002/1799[2003] EWCA Civ 823
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE UPON TYNE COUNTY COURT
(MR RECORDER ALLEN QC)
Venue Royal Courts of JusticeDate Friday, 16th May 2003
Strand
London, WC2
B E F O R E:
LORD JUSTICE ALDOUS
LORD JUSTICE SEDLEY
LORD JUSTICE RIX
Between
EILEEN PIGFORDRespondent-v-
Between
CITY OF SUNDERLANDAppellant
(Computer-Aided Transcript of the Palantype Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR N PRICE (instructed by Messrs Crutes Law Firm, Newcastle upon Tyne NE2 1RQ) appeared for AppellantMR C WILLIAMS (instructed by Messrs George Mills, Tyne & Wear NE38 7SD) appeared for Respondent
J U D G M E N T(As approved by the Court)
Crown copyright©

LORD JUSTICE ALDOUS:

[1]I invite Lord Justice Sedley to give the first judgment.

LORD JUSTICE SEDLEY: The issue in this appeal could not be more simple, nor could the answer be more problematical.

[3]Mrs Pigford slipped and fell on the walkway of a City of Sunderland housing estate where she had been providing services as a home help. She suffered injuries which, in the result, attracted a substantial award of damages from Mr Recorder Allen QC who tried the case on 7th August and gave judgment on 8th August 2002 in the Newcastle upon Tyne County Court. He held that there was no contributory negligence.[4]The walkway was surfaced with brick blockwork which, on the Recorder's uncontested findings, became dangerously slippery when it was wet. He found that the defendant corporation had negligently failed to make the surface safe in spite of repeated complaints about this propensity. If therefore Mrs Pigford had slipped over because the surface was wet, she was entitled to recover damages. If, however, the area was icy, it was conceded on Mrs Pigford's behalf that the council could not be criticised for not having gritted it by the time of her fall.[5]The accident happened at about 8.45 in the morning of 7th December 1998. In the ordinary way, meteorological evidence will give a simple answer to the question whether the ground temperature in a particular area at a particular period of the day was above or below freezing. But the meteorological evidence before the Recorder was right on the cusp. A weather report issued at 5.30am by the Newcastle Weather Centre forecast "patchy rain or drizzle today, with a risk of ice until around 0900 hours." This evidence was agreed, but it was only a forecast. The Recorder also therefore had regard to a report from Weathernet Ltd which was not agreed but which was not only equivocal, like the forecast, but slightly confusingly phrased:
"It seems unlikely but not definite that ice would have been present by 9am on the 7th that morning as it appears that the ground would have been moist from the light drizzle that was falling at the time. Sheltered spots however, might have still remained icy as an air frost occurred that evening and certain parts of Tyne and Wear had a small layer of snow cover in places that morning from previous snowfalls. Air temperatures on the previous day only prevailed above freezing for a short period of time, so icy/snow patches and then high humidity and drizzle falling on patchy frozen/melting ice patches may have still prevailed."
[6]The upshot was that the Recorder had to make up his own mind on the basis of the other evidence whether it was ice or wet that caused Mrs Pigford to fall. Mrs Pigford said in her witness statement and oral evidence that the surface she fell on was wet, not that it was icy. The difficulty she faced was that in the aftermath of the accident she had repeatedly said that it was ice that she had slipped on. In April 1999 Mrs Pigford's sister completed a claim form on her behalf for industrial injury benefit which, in answer to a question about how the accident happened, said that she had slipped on ice. Mrs Pigford, who had given her sister the information, signed the form. She also signed an accompanying statement, made out by somebody she could not now remember, which likewise said that she had "slipped on the icy path". Then on 14th May 1999 her solicitors wrote a letter before action alleging that Mrs Pigford had "slipped on ice". The same account was repeated in accident reports made out by her employers to the Health and Safety Executive and to the defendant council. Mrs Pigford candidly accepted that these entries accurately recorded what she had told other people. She said the same to the orthopaedic surgeon who examined her on her solicitors' instructions in May 2001 (though the garbled history he gives -- "she was robbed in an accident" -- is yet another warning against relying on medical reports for evidence of causation).[7]In addition to Mrs Pigford's own testimony as to the state of the blockwork when she fell, there was oral evidence (not anticipated in her witness statement) from Mrs Harrison, a neighbour, that on the morning in question the surface had been wet, not icy. As recounted by the Recorder:
"She stated that she returned from work and that she walked over those tiles, as she described them, that morning, 'They were wet. It had been cold, it had been frosty but I would not say the tiles were icy at that time.' It is her evidence that ice did not lay on the tiles, so far as she can recollect, that morning prior to Mrs Pigford falling."
[8]Later in his judgment the Recorder expressed himself satisfied, in the light of her demeanour as well as of the evidence she gave, that Mrs Harrison was an honest and truthful witness. He concluded:
"46. Mrs Pigford's evidence is that the blockwork was wet, not icy, though she had made statements, certainly over a period of five months subsequent to the occurrence of the accident when she stated (or persons on her behalf stated) that the path was icy or that she had slipped on ice. Mrs Harrison's evidence is effectively that the blockwork was wet and she did not think there was ice and there are those two reports. 47. The burden of proving the cause of the accident lies upon Mrs Pigford and I have thought long and hard about this. I have, having considered all the evidence, come to the conclusion on a balance of probabilities that the cause of the accident was the excessive slippery surface of the blockwork when wet and not ice cover. I take into account her evidence, Mrs Harrison's and I also take into account the weather reports to which I have referred. The first one which was issued on 7th December was to the effect of, 'Patchy rain or drizzle with a risk of ice until around 9.00 am.' The second report to the effect that it is unlikely that ice would have been present by 9.00 am. The forecast of rain and the report of ice being unlikely, when considered with the evidence of Mrs Harrison, Carol Matthews, Mrs O'Hagan and Mrs Pigford, leads me to the conclusion which I have indicated."
[9]The Recorder refused permission to appeal, stressing that what it was sought to challenge was a finding of fact arrived at on the basis not only of the documents but of an appraisal of oral evidence. Mance LJ granted Sunderland permission to appeal, noting:
"Although it involves a challenge to a conclusion of fact, this is an appropriate case for consideration on appeal for the reasons given in the appellant's notice and skeleton in support."
The single ground of appeal is that the Recorder's findings of fact about the cause of the accident are perverse and contrary to the evidence. The arguments appear plainly enough from what is set out earlier in this judgment and from the further facts that neither of Mrs Pigford's two successive solicitors alleged a wet surface in their letter before action, and that even when particulars of claim were served in November 2001 it was only obliquely that they averred that the blockwork was wet rather than icy. It was the claimant's own witness statement, made in April 2002, which for the first time said:
"The cause of my fall was that I slipped on the block paving. I slipped due to the fact that it was exceptionally slippy at the time. It was wet and I believe that it may have been wet due to it having been frosty overnight and the frost having cleared and left it damp. I have since discovered that a number of residents in this area have made complaints that the paving was hazardous when it was wet."
[10]Nobody, least of all Mrs Pigford and her lawyers, could have been surprised if the Recorder had concluded that her initial account of having slipped on ice was much more probably the correct one; that the meteorological evidence was perfectly consistent with this; that Mrs Harrison, though honest, could not reliably recall the conditions on the day of Mrs Pigford's accident and had probably conflated them with the unheeded complaints to the council that the blockwork was slippery when it was wet; and that Mrs Pigford had reshaped her own recollection to what she had since come to appreciate. Or at worst he might have held that Mrs Pigford's account had been so inconsistent, and that the other evidence was so equivocal, that she had not made out her case. But the question is whether the Recorder was entitled to go the other way.[11]Mr Price, for the appellant council, accepts that there was evidence before the Recorder that the surface the claimant slipped on was wet rather than icy. His case is that in the face of the evidence to the contrary contained in the history which I have summarised, it was perverse for the Recorder to accept it.[12]What then was the evidence on which the Recorder relied? It starts with the paragraph of Mrs Pigford's witness statement which I have quoted. Then, in evidence, she said this:
"Q. How would you describe the conditions that morning when you walked for 25 minutes or so? A. Well, it was fine but it was cold and the areas I walked in were wet."
Then in cross-examination:
"Q. You describe slipping on a block paving slab? A. That's right."
The claimant was then asked to locate the point of her fall and (at page 7E) was asked:
"Q. Presumably you were well aware of the weather conditions at the time, were you not? A. Yes. Q. You describe, if you turn the page, at paragraph 5, that it had been frosty overnight? A. Yes. Q. You say, 'I slipped due to the fact that it was exceptionally slippery at the time and it was wet and I believe that it may have been wet due to it having been frosty overnight.' That is your recollection of the weather conditions? A. Yes, it could have been, yes."
Then, after a further question and answer:
"Q. Was it frosty when you left home? A. I remember it being wet. It was fine. It wasn't raining or snowing. I remember the ground being wet. Q. Was there any frost when you woke up? A. I couldn't swear to there being any or not."
Then, after a couple more questions:
"Q. How would a describe the ground conditions at the point of when you fell? A. From what I recall they were wet."
Then, after another two questions:
"Q. What caused you to believe that, in fact, the wet was due to it having been frosty overnight? A. Because when I slipped I landed in exactly the same place I slipped on and the ground was wet. I didn't feel any ice or frost, it was wet."
Later in her cross-examination, Mrs Pigford was asked about one of the report forms that I have mentioned, the one her sister had completed for her:
"Q. In fact you mention there, yourself, the fact that ice was involved and that you slipped on it, on the day of the accident? A. I must have done but I can't recall a lot of the weather on that day. ... Q. It does not jog your memory, having described the cause of the accident to your former solicitors or, indeed, to your employers, that you slipped on ice? A. I must have done but I can't recall it."
Then again, at page 19C:
"Q. [The medical report] then goes on to describe the shoes that you were wearing and the area over which you walked. You see, there, Mrs Pigford that throughout all the instructions that are recorded by your former solicitors, by the entries that are made by the DSS, your former employers and, more recently, in May 2001 by your orthopaedic surgeon, reference is made to the conditions being icy and that you slipped on ice. A. Mmm-hmm. Q. That is what happened, is it not? A. I slipped but them tiles are very dangerous."
[13]Then there was the crucial evidence of Mrs Harrison. Her witness statement had been silent on the point, but in the witness box she said (page 32 onwards of the transcript):
"Q. Did you see that accident? A. No. ... Q. Can I place it in context. I do not know when you came across Mrs Pigford, the lady who suffered the fall. A. The morning she actually fell. I had just finished the night shift."
Then at page 33G:
"Q. You were asked to provide a statement in connection with this matter and - A. The actual morning it actually happened I had just finished night shift. I was getting my children to school and within five minutes of my children going to school Mrs Pigford was lying on the floor."
At page 34F:
"Q. You did not witness the accident itself did you? A. No. Q. You are unable to comment upon the weather conditions at the time? A. Actually I had just finished work. I had to walk over them block pavings to get into my home. Q. What were they like? A. They were wet. Q. Was there no ice in the area? Had it been icy? A. It had been very, very cold. THE RECORDER: That was not the question. A. It was frosty. I wouldn't say it was really, really icy."
This final passage of Mrs Harrison's evidence in cross-examination is not quite the same as the Recorder's summary of it which I have already quoted. But to my mind the difference is not significant.[14]The Recorder, having observed Mrs Harrison with care, concluded that she was a truthful witness. Once this point was reached, he was entitled in reliance on her evidence to find that the surface was wet by the time Mrs Pigford slipped on it, unless he considered the evidence pointing to ice to be more persuasive. If had been only Mrs Pigford's evidence on which he had to form his conclusion, I would have accepted Mr Price's case that it was perverse to set aside her consistent allegation of ice in favour of her late and not too clear testimony that the surface was wet. Standing alone it would, as Mr Price submitted, have been incredible. But it did not stand alone, and while Mrs Pigford may count herself fortunate to have secured a judgment in her favour, I am not able to accept Mr Price's submission that she owes it to perversity on the part of the Recorder. Having concluded that Mrs Harrison was an honest and -- at least prima facie -- truthful witness, and having found that the meteorological evidence was consistent with, if it did not actually support, a thaw, he had to decide whether the vagaries of Mrs Pigford's evidence over time nevertheless made it less than likely that the ground on which she slipped was wet. So understood, his conclusion that ice had given way to water on the surface may have been surprising, but it cannot in my judgment be said to have been perverse.[15]For my part therefore I would dismiss this appeal.

LORD JUSTICE ALDOUS: I would allow the appeal upon the ground that the judge's conclusion on the crucial issue was based upon a misunderstanding of the evidence and that all the credible evidence must lead to the conclusion that the claimant had not discharged the burden of proof that was on her.

[17]The sole issue before this court is, as my Lord has stated, whether Mrs Pigford slipped because the brickwork was icy or because of it being wet with no ice. Thus, the appeal turns upon whether there was or was not ice, it being conceded that she could have slipped for either reason.[18]My Lord has read paragraphs 46 and 47 of the judgment, which in my view do not accurately reflect the evidence that was given. As to Mrs Pigford's evidence,

the judge said this:

"Mrs Pigford's evidence is that the blockwork was wet, not icy, though she had made statements, certainly over a period of five months subsequent to the occurrence of the accident when she stated (or persons on her behalf stated) that the path was icy or that she had slipped on ice."
I therefore turn to the evidence of Mrs Pigford to see whether that statement is an accurate summary of her evidence.[19]The accident took place on 7th December 1998. In the letter before action, written on 14th May 1999, her solicitors said: "At the material time my client slipped on ice whilst travelling from one client to another. The area in question was a path which should have been gritted or otherwise treated to prevent such accidents.[20]That letter had been preceded by a number of reports, in particular an accident report to Mrs Pigford's employers dated 7th or 8th December. In that report it was stated:
"When coming out of Mrs Wood's home, [Mrs Pigford] slipped on icy path and fell badly. Mrs Pigford was admitted to hospital."
In a Health and Safety report dated 7th December it was stated:
"[Mrs Pigford] was walking on the path away from Mrs Wood's home when she slipped on an icy area. She was admitted to hospital ..."
[21]In an accident report provided to the defendants it was stated, in response to the question "State any agent involved", there was inserted "Icy pathway" and it was made clear that Mrs Pigford slipped on "icy tiles".[22]In a claim form put in by Mrs Pigford to the Department of Social Security for industrial disability benefit she was asked:
"What was the accident and how did it happen?"
The answer was that Mrs Pigford:
"Slipped on ice outside clients house."
That was the document that my Lord has referred to that was completed by Mrs Pigford's sister and signed by her.[23]The report of her doctor of what he had been told stated:
"Mrs Pigford tells me that she was a pedestrian, walking alone, over a paved area in the Washington area of the North East of England when she was robbed [that must be a misunderstanding of a dictated note for the word 'involved'] in an accident on 07/12/98. At the time she was working as a home help, she had left a client's house, it was approximately 8.45 am in the morning, it was a bright morning, the weather had been cold and it was icy. At the time she was wearing flat shoes, her work uniform and was carrying a handbag over her left shoulder. She was wearing glasses. When walking over a paved area her left leg slipped from underneath her, she landed on the top of her left leg and heard a loud 'snap'."
[24]The first suggestion that ice was not involved came, as my Lord said, obliquely in the claim form of 23rd November 2001. That was followed by Mrs Pigford's witness statement, made on 2nd April 2002 in which she stated, for the first time, that she slipped because it was wet. My Lord has recited the whole of paragraph 5 of her witness statement.[25]It is against the background of that evidence that it is necessary to come to her cross-examination. In doing so, it is important to consider whether the statement in her witness statement was, firstly, credible in the light of the written material and, secondly, whether at the time she made the witness statement she had any reliable memory of whether there was ice or not which could have formed the basis for the evidence that she gave.[26]My Lord has read extracts from the cross-examination, and indeed the important extracts. I will, however, read some of them again in the context of the background evidence.[27]Starting at page 7 of the cross-examination, Mr Price, who appeared on behalf of the defendant, the City of Sunderland, took Mrs Pigford to paragraph 5, the crucial paragraph, in her statement. He asked:
"Q. You describe, if you turn the page, at paragraph 5, that it had been frosty overnight? A. Yes. Q. You say, 'I slipped due to the fact that it was exceptionally slippery at the time and it was wet and I believe that it may have been wet due to it having been frosty overnight.' That is your recollection of the weather conditions? A. Yes, it could have been, yes."
I pause to interpolate, the witness answers on the basis that it could have been. She did not say that it was her recollection or that she had any recollection that that was the position. The cross-examination continued:
"Q. What time did you start work, as it were. When did you start making your way to this estate? A. I left the house at quarter to seven to go to my first job and then that was a 10 minute walk. Then, when I finished my first one, I walked to Franklin Court which takes me 15 minutes so I would get there about 8 o'clock. At the lady's house in Franklin Court. Q. Was it frosty when you left home? A. I remember it being wet. It was fine. It wasn't raining or snowing. I remember the ground being wet. Q. Was there any frost when you woke up? A. I couldn't swear to there being any or not."
I pause. The witness again did not know at that stage, over 3½ years after the accident, as to whether there was frost when she woke up. The cross-examination continues:
"Q. Although you recall it having been frosty overnight, you are now saying there was nothing in the morning when you woke up to suggest it had been frosty? A. I can't remember, I'm sorry. Q. What I want to put to you is that it had been frosty the night before and you were aware of those conditions when you started your rounds. You say you cannot remember? A. Well, when I left the house I walked all right. I wasn't slipping or nothing, I walked okay when I left the house. Q. How would you describe the ground conditions at the point of when you fell? A. From what I recall they were wet."
I pause again. The crucial question is whether her memory at this stage could in fact be relied upon. The cross-examination continued:
"Q. I hope this is not going to sound a matter of semantics but referring to paragraph 5, you first of all described that it was wet but then the frost having cleared, it left it damp. So what- THE RECORDER: What she says us, 'I believe'. It was her belief, according to her statement. MR PRICE: What caused you to believe that, in fact, the wet was due to it having been frosty overnight. A. Because when I slipped I landed in exactly the same place I slipped on and the ground was wet. I didn't feel any ice or frost, it was wet. THE RECORDER: Do you have that paragraph of your statement? It is paragraph 5. Just look at it. You say, 'I slipped due to the fact it was exceptionally slippy at the time.' Yes? A. Yes. Q. Then you say this, 'It was wet and I believe that it may have been wet due to it having been frosty overnight.' Did you know it had been frosty overnight? A. No, I can't recall. Q. Then why did you put that in your statement? A. I can't really remember ..."
[28]In my view, that evidence points directly to the conclusion that when she came to give her evidence, which was about four months after she made the statement, her recollection was not sufficient. She honestly said she could not remember whether it was frosty or icy.[29]The cross-examination continued, with Mr Price putting to her the documents in which she had said she had slipped on ice. She was asked about the statement in the letter before action. She had no memory of why she had stated it was icy. No doubt the position was that over 3½ years her memory had dimmed and so it was not possible for her to remember. The cross-examination then proceeded to the accident report which had been completed by her sister. At page 13 Mr Price asked:
"Q. Outside client's house. 'What was the accident and how did it happen?' 'Slipped on ice outside client's house at Franklin Court, Washington.' Do you see that? A. Yes. Q. That is the account that you gave to your sister for her to complete the document. Is that right? A. Yes. Q. In fact, you mention there, yourself, the fact that ice was involved and that you slipped on it, on the day of the accident? A. I must have done but I can't recall a lot of the weather on that day. Q. It does not jog your memory in describing the cause of the accident to your former solicitors, your employers. No? A. Pardon? Q. It does not jog your memory, having described the cause of the accident to your former solicitors or, indeed, to your employers, that you slipped on ice? A. I must have done but I can't recall it. Q. I see. If you turn the page again. This is an Industrial Injuries Disablement form. Is that completed in your writing? A. No, that is my sister's writing but it's my signature. Q. That is your sister's writing? A. That is my sister's."
Later the Recorder asked this:
"I do not wish you to be taken by surprise, because it is quite important. Just take your time. Look at that handwriting and then look at the bottom of the page and you will see that there is the endorsement, 'I agree that what is written above is a correct record my statement.' Do you see that? A. Yes."
[30]It was Mrs Pigford's evidence that what was recorded in that document, namely that she had slipped on ice, was what she had said at the time as she accepted it to be an accurate record of what she said. But it is clear from her cross-examination that her memory had gone by the time that she gave evidence. The fact that she says, "I must have done but I can't recall it" is clear evidence to that effect.[31]The cross-examination went on through the statements made by Mrs Pigford, to which I have referred, which said that she had slipped on the ice. She never said that she did not believe the statements to be true when made, nor did she give any explanation as to why they should not be accepted to state the truth as she remembered it shortly after the accident.[32]I come back to paragraph 46 of the judge's judgment which sets out his understanding of Mrs Pigford's evidence. For convenience I read it again:
"Mrs Pigford's evidence is that the blockwork was wet, not icy, though she had made statements, certainly over a period of five months subsequent to the occurrence of the accident when she stated (or persons on her behalf stated) that the path was icy or that she had slipped on ice."
[33]I do not believe that that is an accurate summary of her evidence. Her evidence was that after the accident she made statements that she slipped on the ice. Those statements were accurate reports of what she said. The first statement to the contrary was in April 2002, 3¼ years after the statements had been made. By August 2002 she had no reliable recollection of the conditions and no explanation as to why the statements were inaccurate.[34]I turn next to consider Mrs Harrison's evidence. She arrived at the scene of the accident shortly afterwards. Her witness statement made no mention of whether there was ice or not. She was asked by Mr Price, who appeared for the defendant, the questions at page 34 of the transcript which my Lord has read. In that evidence she was referring to the conditions when she was going into her home. I am not sure when that was, but it seems likely it was when she returned from her work on the night shift to get her children ready for school. The accident appears to have happened within five minutes after the children went to the school. In her evidence, her initial statement was that the pavings were wet. She was pressed as to that and was asked whether there was ice in the area, to which she said it had been very cold. The Recorder pressed her to answer the question and the crucial answer was:
"A. It was frosty. I wouldn't say it was really, really icy."

The judge recorded her evidence in paragraph 46 as this:

"Mrs Harrison's evidence is effectively that the blockwork was wet and she did not think there was ice and there are those two reports."
[36]In my view, he misunderstood her evidence and misrecorded it in paragraph 46 of his judgment.[37]It is right for this court to take into account that the judge heard the evidence and that the written word may not have reflected the true meaning of the evidence. But even so, I cannot see how what she actually said could form a foundation for the judge's recollection of her evidence. In my view her evidence was that the pavings were wet, but she did not give evidence indicating that they were not icy. She might have meant that it was icy, but not really, really, icy.[38]In paragraph 47 of the judgment the judge reviewed the weather reports. The first one, as my Lord has pointed out, was agreed. The second one was not. But their effect was not such as to indicate either way whether the pavings were icy or not. In fact, whether there was ice must have depended upon the actual conditions at the particular place of the accident. Those reports were not sufficient to give any indication either way.[39]In my view the judge misunderstood Mrs Harrison's evidence and failed to have in mind all the evidence of Mrs Pigford. His conclusion therefore was based upon a wrong foundation. That being so, it is right for this court to consider the issue afresh. That is a task the court can do, as it was not suggested that demeanour played any part on this issue. Of course, the court must accept the findings of fact relating to the slipperiness of the pavings.[40]Absent weather reports which would decide the issue one way or the other, the most cogent evidence as to whether ice was present must be that contained in statements made shortly after the accident. Those statements were made by or came from the claimant, Mrs Pigford. She was the only person present at the accident and therefore her evidence would be particularly important on this issue. All those statements were to the effect that she slipped on ice. They were all statements made by her contrary to her interest and therefore have particular weight. She had ample opportunity in cross-examination to explain that she was mistaken. She did not so state. Her excuse was that she could not remember. Also the statement made in 2002 cannot carry weight, as her recollection could not be relied on as she so stated. Absent clear evidence to the contrary or some explanation that she was confused or mistaken, Mrs Pigford's belief shortly after the accident must be accepted, particularly as no explanation was given as to why it was mistaken.[41]Further, the evidence of Mrs Harrison could not throw doubt upon those statements. The accident happened in December 1998. Mrs Harrison seems not to have been asked about the state of the pavings until 8th August 2002 3½ years after the accident. She remembers it was frosty, but not really, really icy.[42]Did Mrs Pigford slip on ice or was there only water present? That evidence of Mrs Harrison's cannot give the answer. The statements of the claimant must, in my view, prevail. I therefore conclude that there was no evidential basis for the judge's conclusion. The reasons he came to were founded upon a misunderstanding of the evidence. I therefore would allow the appeal.

LORD JUSTICE RIX: I agree with the judgment of my Lord, Lord Justice Sedley. I have the misfortune to disagree with the judgment of my Lord, Lord Justice Aldous.

[44]On behalf of the appellant Mr Price has not submitted, correctly in my judgment, that there was no evidence on which the judge could have come to his conclusion. But rather, that on the evidence, and in particular the evidence of the most closely contemporaneous documents reporting on the accident, it was a perverse conclusion.[45]In my judgment, there is no need of perversity for this court to reverse a judge on the facts. Speaking for myself, I would be willing to allow this appeal if, consistently with the role of this court and making all due allowance for the advantages of the trial judge, I conscientiously considered that the judge had come to the wrong conclusion. However, in an admittedly difficult case on the facts, as the judge himself recognised by his comment that he had thought long and hard about it, even if the issue was starkly simply and straightforward, I am not persuaded that I am entitled to conclude that the judge got it wrong. He put into the balance the conflicting evidence coming from Mrs Pigford herself, and the evidence of Mrs Harrison, who, although not an eyewitness of the fall itself, was an eyewitness of the conditions in that particular location that morning, and was at Mrs Pigford's side soon after her fall. Mrs Harrison said, of a time even before the accident, that the pavements were wet (at page 34G of the transcript). That was the issue in the case: wet or icy; icy or wet.

The judge also put into the scales the meteorological reports, one of which, the forecast, spoke of:

"Patchy rain or drizzle today, with a risk of ice until around 0900 hours" and the other of which, the historical report, said that: "
It seems unlikely but not definite that ice would have been present at 9am" and then gave the reason, viz that light drizzle was falling at the time. The judge said that the accident occurred at approximately 8.45am. There is also a reference to 8.55am in the evidence. The reports were clearly not conclusive, as they sometimes are, or definite, to use the word actually used in the second of the reports. But they did support the likelihood that the conditions by the time of the accident were wet, as distinct from icy. That, as I have said, was the shorthand of the issue at trial: wet or icy, icy or wet.[47]The evidence of Mrs Pigford was of course unsatisfactory, but it can well be understood that her perception of the cause of her slipping was ice, which she very probably noticed on her walk to work at 6.45am that morning, two hours earlier, and which she may well have naturally assumed was the cause of her fall two hours later. But was it? Pressed with the difference between what she had said on different occasions and with the inconsistencies of the earlier reports with her later witness statement and evidence in chief, she may well have said at times in her cross-examination that she did not remember particular matters. But at one stage of her evidence she answered, quite naturally as it seems to me:
"Because when I slipped I landed in exactly the same place I slipped on and the ground was wet. I didn't feel any ice or frost, it was wet."
[48]Of course in theory Mrs Pigford may have been a dishonest witness, who was changing her account to suit her book. Or she may have had an honest but possibly false perception at one time, having set out early on an admittedly frosty morning, and a new, honest and possibly correct perception at another time when she had learnt that these pavings were slippery even when merely wet. It was above all for the judge to consider where her evidence lay on that scale. In concluding that it had some value alongside other evidence in the case, the judge was in an infinitely better position than are we.[49]It seems to me, in the end, that if this court were to interfere in this case then it would be implying that even in the most straightfoward of cases a visit to the Court of Appeal is nearly always justifiable, whatever the ultimate result of the appeal might be. That would, I fear, be disastrous for litigation and litigants as a whole.[50]In conclusion, I would dismiss this appeal.

ORDER

Appeal dismissed. (Order not part of approved judgment)