Charles Jack Lee v Parminder Singh Khraud [2025] EWHC 714 (KB)

[2025] EWHC 714 (KB)Case No KA-2023-000194
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
APPEAL
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 1 st April 2025
Before
MRS JUSTICE CUTTS
Between
Mr Charles Jack LeeClaimant/Appellant1) Mr Parminder Singh KhraudDefendants/Respondents(2) Mr Michael FletcherRespondent(3) Mr Jason WrightRespondent
Mr Lyons (instructed by Moons Solicitors Ltd) for Claimant/Appellant.Ms Unthank (instructed by KEOGHS LLP) for Defendants/Respondents.Hearing Hearing date: Friday 14 th February 2025
JUDGMENTThis judgment was handed down remotely at 12.00pm on Tuesday 1 st April by circulation to parties or their representatives by e-mail and by release to the National Archives.

Introduction:

[1]This is an appeal of the decision of His Honour Judge Duddridge that the appellant was one third contributory negligent in an accident which occurred on 9 July 2018.[2]On that date, the appellant was at the first defendant’s property when he fell from an unfenced mezzanine floor. He suffered serious injuries including fractures to his skull, nose, jaw, left eye socket, both wrists and ribs and a brain injury. The mezzanine was on a construction site for a new build property.[3]Shortly before the trial, all the defendants conceded primary liability for the accident, accepting that a guard rail should have been in place. They contended however that the appellant’s damages should be reduced for contributory negligence on the grounds that(1) the absence of the guard rail and crash mats was obvious to all concerned – including the appellant. The risk of falling was foreseeable;(2) the appellant offered/agreed to undertake the moving of plasterboards onto the mezzanine on a site with which he was unfamiliar and had not familiarised himself with it;(3) the appellant did not take sufficient care when on the mezzanine to keep away from the obvious edge and(4) the appellant had a concurrent duty to take responsibility for his own health and safety which he failed to do.[4]The trial on the issue of contributory negligence was heard on 5, 6 and 7 July 2023 before His Honour Judge Duddridge at the County Court in Chelmsford. There was no direct evidence of how the accident occurred. This was because the appellant, in consequence of his injuries, suffered from retrograde amnesia for the period of 1-2 hours before the accident. No one else saw how the accident came about.[5]By judgment dated 1 September 2023 the judge found that, although it was not possible on the evidence for him to find how the accident happened, he could draw the reasonable inference that the appellant had failed to take reasonable care to avoid the obvious and foreseeable risk of falling from the mezzanine floor. The accident would have been avoided had he taken reasonable care for his own safety. He was therefore contributorily negligent and the reduction of damages should be one third. This appeal challenges the judge’s finding that there was contributory negligence and, should that ground be unsuccessful, that the reduction of damages should be one third.

The parties and background

[6]The appellant was a self-employed plasterer with seventeen years’ experience engaged by the second and third respondents to work as a plasterer at the property. It was common ground at the trial that he was not due to start work at the property on 9 July 2023 but had called into the site on his way home from working elsewhere. He was due to start the following day.[7]The first respondent was a full-time computer engineer. He and his wife owned the property. The new house was being built on their land for them to live in. The first respondent was named as Principal Contractor on a CDM action plan dated 2 January 2018. He was project managing the works alongside his full-time employment. He had contracted specialist contractors to carry out the works.[8]At the material time, the second and third respondents operated as a partnership trading as Sheerline Plastering. They were appointed by the first respondent as contractors to plasterboard and skim the property. The second respondent was at the property at the time of the accident. The judgment below The facts

The judgment below

[9]The judge set out the evidence and his findings of fact. The appellant gave oral evidence on his own behalf. The defendants called all three respondents, Mr Wakeling (who was working at the site and handing plaster boards up to the appellant at the time of the accident), and Mr Tome-Fernandez (who was also working on the site at the time of the accident). All bar the third respondent had given earlier witness statements to the HSE who conducted an enquiry into the accident. The second respondent was prosecuted by the HSE for a single offence under the Work at Height Regulations 2005. He pleaded guilty and was fined £2,000.[10]Much of the evidence was uncontroversial. The judge recorded that the appellant was aged 34 years and had been a plasterer for seventeen years by the time of the accident. By that time, he had been working for Sheerline Plastering for between one and two years. He was engaged by them as a self-employed contractor. He provided his own transport and tools which he maintained at his own expense. Sheerline provided the materials for each job. Sheerline provided the appellant with most of his work, but he was free to work for others. He was not supervised while carrying out his plastering work but was left to do it as he thought best. At times, he would be the only person working at a location.[11]By the day of the accident, the house had been substantially constructed. There was evidence that the electrician and plumber had carried out their first fix. Sheerline were scheduled to begin their work on the day of the accident which involved fixing plasterboard to the internal walls and ceilings and then plastering.[12]The mezzanine floor was to become the first-floor hallway. It was five metres wide and was bounded at two ends by the walls of the bedrooms. On the day of the accident, it was open on the two other sides which were opposite each other. According to the first respondent, the open sides had been protected by fixed “birdcage” scaffolding and, after that was removed, by mobile scaffolding towers which were pushed against the open sides to form a barrier. There was also a crash deck. However on 22 June 2018, the towers were removed and on 25 June, the ground floor was completely cleared to enable the underfloor heating system to be fitted. The screed, which was poured on 29 June, required 7-10 days to set during which nothing could be placed on top of it.[13]On 3 July the first respondent arranged for Mr Tome-Fernandez to fit a temporary staircase giving access to the mezzanine. This was itself open. He had arranged to return the mobile scaffolding towers to their positions against the open sides of the mezzanine in the week commencing 9 July 2018.[14]An issue at trial was whether other contractors had worked on the mezzanine after the guard rails had been removed but before the accident. The first respondent said they had not. Mr Tome-Fernandez said in his witness statements for the HSE and for the proceedings that he and others had. When discussing this difference between these two witnesses called by the respondent

the judge observed at [24]:

“ Related to this issue although Mr Lyons required Ms Unthank to call Mr Tome-Fernandez… (indicating that he would otherwise apply for permission to call him himself), he did not put any questions to him. The purpose of this was apparently to prevent Ms Unthank from addressing inconsistencies between their evidence and the [first respondent’s] evidence by arguing that their evidence was hearsay which should attract less weight. Mr Lyons did not submit that I am bound to prefer his evidence over that of the first respondent where they are inconsistent. In my view, in the circumstances, and as it was his choice not to cross-examine them, I am not bound to do so but should consider their evidence together with the other available evidence and the inherent probabilities when making my findings.”
In resolving the inconsistency, the judge found that the first respondent was clearly an honest witness doing his best to give truthful evidence. He said that as Mr Tome-Fernandez was not “cross-examined” he had no real opportunity to assess his reliability. He accepted the first respondent’s account that no work was being done by other contractors between the removal of the scaffolding and the accident. He noted that Mr Tome-Fernandez gave no detail in his witness statements about what he saw other contractors doing and considered on the balance of probabilities that he was mistaken in assuming that they were working on the mezzanine itself.[15]The judge referred at [32] to a photograph of the mezzanine taken from the ground floor within a day or two of the accident. He observed that it appeared to be well lit by natural light and the unguarded side shown in the photograph was clearly visible. It had not been suggested by any party that the mezzanine was poorly lit or that the open sides were in shadow or otherwise obscured. The judge recorded that the appellant accepted that the lack of a crash deck and guard rail was obvious, but was reluctant to accept it was obvious that there was a risk of falling. At [69] the judge found this unconvincing. He found that the risk was obvious and foreseeable to any person taking ordinary care of their surroundings and particularly to any experienced tradesman who was used to working in a variety of settings.[16]It was common ground that the appellant had been given no induction to the site or health and safety briefing.[17]By the time the appellant arrived on site in the afternoon of 9 July Mr Wakeling had, mainly on his own, moved approximately 100 plasterboard sheets upstairs. The judge recorded that his method when working alone appeared to be to lean them against the mezzanine floor and then go upstairs to a position from which he could lift them onto the mezzanine. The second respondent had also assisted him to take twelve boards upstairs by standing on the mezzanine floor and having Mr Wakeling pass them up to him. Both said this was a common way of moving plasterboard from one floor to another.[18]It was common ground that the appellant was not due to work on the site on 9 July. He went there after he had finished another job at about 2 PM. There was a factual dispute as to whether he was asked to go there by the second respondent or went of his own accord. Observing that the significance of this issue was limited at best following the respondents’ acceptance of liability, the judge did not accept that the appellant was asked to attend the site. The appellant’s retrograde amnesia called into question his ability to recall instructions and the judge considered his evidence on this point mistaken and unreliable. The judge did not accept the appellant’s evidence that the second respondent said “get those boards up boys and you can go home” for the same reasons. He found it more likely that the appellant had offered to help Mr Wakeling with the remaining few boards.[19]There was no dispute that the appellant assisted Mr Wakeling to move the plasterboard by standing on the mezzanine floor and having Mr Wakeling pass the boards up to him. There were only about 5 boards left to move. Each board measured 2.4 m by 1.2 m and weighed 25 kg. The appellant fell from the side that was behind him whilst receiving the first board. He could not recall what caused him to fall. Mr Wakeling did not see him fall as his view was obscured by the sheet of plasterboard he was carrying at the time. Neither the second respondent nor Mr Tomes-Fernandez saw the appellant fall as they were working out of sight of the mezzanine. There was therefore no direct evidence as to how the accident happened. The judge recorded that the appellant said that moving plasterboard was part of the regular work of a plasterer and he was familiar with doing so. It was not clear where he was placing the board before he fell.[20]The judge found it improbable that the second respondent instructed the appellant or Mr Wakeling as to the method they employed to move the plasterboards. There were only two practical methods – either to carry them up the stairs or to deploy the method used. Neither required any sophistication and the appellant and Mr Wakeling did not need instruction. The method deployed was a common way to move plasterboard between floors.[21]The evidence did not establish the precise time of the accident. Paramedics treated the appellant at the scene for a period of time before transporting him to hospital about 14 miles from the site. He arrived there at 5.01 PM. The timing suggests the accident happened between 3.30 and 4 PM.[22]Nobody took photographs of the accident scene on the day of the accident. The first respondent did not make arrangements to preserve the scene pending the HSE investigation. Rather he instructed Mr Tome-Fernandez to construct temporary guard rails which was done before HSE attended. This was because he did not know how long it would be before they came. He accepted that he installed the guard rails in part to demonstrate to HSE that he had been proactive in response to the accident. He also said that he closed the site following the accident and nothing else changed between the accident and HSE’s attendance.

The law

[23]The judge found all parties to be subject to statutory and regulatory duties connected with health and safety. As a self-employed contractor, the appellant was subject to duties under the Work at Height Regulations 2005 and the Health and Safety at Work Act 1974. No issue is taken with this in this appeal.[24]The judge found that the duties of the appellant on the one hand and the respondents on the other were not equivalent. The respondents each had greater statutory and regulatory responsibilities for managing, monitoring and avoiding risks to health and safety than the appellant. There was a greater range of reasonably practicable measures available to them than to the appellant.[25]The judge set out section 1(1) of the Law Reform (Contributory Negligence) Act 1945 and identified his task as finding whether the appellant’s own negligence was a contributory cause of the accident and, if so, assessing his and the respondents’ share of the responsibility for the accident and reducing his damages accordingly. He noted that conventionally no reduction should be made unless the appellant’s responsibility was at least 10%.[26]Citing Lewis v Denye [1939] 1 KB 540, the judge reminded himself that the burden was on the respondents to show that the appellant was negligent (in the sense of failing to take reasonable care for his own safety, rather than breach of duty) and that this was a material cause of the accident. The standard of care was that of the reasonable man in the circumstances. Contributory negligence required foreseeability of harm to oneself, that is that it was foreseeable to the appellant that he could suffer injury, although it was not necessary that the specific accident should have been foreseeable.[27]The judge stated that it was common ground that, if he found contributory negligence, he should assess the appellant’s share by reference to each party’s culpability and the causative potency of their respective conduct. He was not required to consider the respondents’ individual culpability but the totality of their conduct. The judge’s conclusions[28]The judge found that in the absence of any direct evidence, he could make no positive finding as to how the accident came about. He observed that it was unfortunate that no photographs were taken immediately following the accident which might shed light on where the appellant was placing the board before he fell. There was more than one way in which the accident might have happened and the precise way it occurred was therefore a matter of speculation.[29]He did not, however, accept the appellant’s submission that in those circumstances the respondents could not discharge their burden and he could not find contributory negligence. In the judge’s view he could draw reasonable inferences on the balance of probabilities from “the limited evidence, my primary findings and the inherent probabilities.”

The judge found that:

[30]i) The open sides and the absence of crash decks were clearly visible. There was an obvious and serious risk of falling if a worker was working close to the open side or approached it with insufficient caution. The risk was obvious and foreseeable to anyone taking ordinary care of their surroundings and particularly to any experienced tradesman who was used to working in a variety of settings. ii) As the mezzanine was 5m wide the risk was manageable by taking care to avoid working near the sides or taking particular care if it was necessary to work near them. The appellant was not, for example, working on a narrow ledge where there was a high risk of falling even if all reasonable care was taken. iii) The appellant did not fall from the side of the mezzanine where he was receiving the boards but from the opposite side. It appears there was no reason why it was necessary for him to work close to the opposite side. There was sufficient room for him to move the plasterboard without doing so. iv) On the other hand, the appellant was working in an unfamiliar location, having only arrived at the site shortly before the accident. As the judge found, he was not instructed to assist Mr Wakeling, but he’d offered to help in circumstances where he was not familiar with the mezzanine. v) In those circumstances “as a matter of inherent probability and experience”, it was likely that the accident happened because the appellant failed to take sufficient care to familiarise himself with the layout of the mezzanine and ensure that he avoided approaching the opposite side with the result that he either stepped or overbalanced in some way. Another possibility was that he tripped or slipped on some object when he was close enough to the side to fall over it. The judge acknowledged that there was no positive evidence that this happened but said that if it did, he would also consider that a failure to take sufficient care to familiarise himself with his surroundings and looking where he was going.[31]For these reasons the judge found the appellant contributory negligent in that he failed to take reasonable care to avoid the obvious and foreseeable risk of falling from the mezzanine floor. The accident would have been avoided if he had taken reasonable care for his own safety.[32]The accident would also have been avoided if the first respondent had installed guard rails or some other barrier at the mezzanine and injury would have been avoided or reduced were crash mats below the unguarded sides. It might also have been avoided if the second and third respondents had insisted these measures were put in place before allowing workers on site or ensured the appellant did not work there until he had been properly familiarised with the site. In the view of the judge, the conduct of the appellant and the respondents, taken as a whole, had equal causative potency.[33]However, the regulatory duties of the appellant and the respondents were not the same. The purpose of the regulatory duties on the respondents is to prevent foreseeable accidents that might occur due to momentary lapses in care by workmen. For these reasons, the judge considered that the respondents had materially greater responsibility for avoiding accidents of this sort and therefore greater culpability for the accident.[34]The judge found that the just and equitable apportionment of liability between the parties that reflects his findings was 1/3 to 2/3 in favour of the appellant. The damages the appellant is otherwise found to be entitled to will therefore be reduced by 1/3 to reflect his share in responsibility for his injuries.

Grounds of appeal

[35]The appellant does not pursue ground 4 of his initial grounds. He pursues the other 5 grounds in contending that the judge’s decision was wrong: i) First, it is submitted that the judge did not correctly apply the burden of proof. Whilst it was correctly recited, it was treated as if on the appellant. ii) Second, that the judge found contributory negligence when there was no evidence to support the facts as found. iii) Third, that the judge made findings which amounted to speculation rather than legitimate inferences which could be drawn from the evidence. iv) Fifth, that the finding and amount of contributory negligence was out of the range of reasonable responses given the causative potency of the respondents’ respective actions and the burden of their statutory duties. v) Sixth, that the judge failed to give appropriate weight to evidence called by the respondents which was not challenged by the appellant.

Grounds 1-3

[36]Taking the first three grounds together Mr Lyons, acting on behalf of the appellant, places significant emphasis on the fact that the judge could not find how the accident happened. In these circumstances, he submits that the issue of contributory negligence should end, as the respondents must have failed to discharge their burden on the balance of probabilities. It is entirely contradictory to state in a judgment that it is not possible to assert how an accident happened and then make findings as to the appellant’s absence of care. In this case, the judge indulged in impermissible speculation as to the cause of the accident. In this regard, Mr Lyons relied on the decision of the House of Lords in Wilsher v Essex Area Health Authority [1988] 1 AC AC 1074 which decided that in a case of clinical negligence, the onus of proving causation rested on the plaintiff in circumstances where there were a number of different factors (some negligent and some non-negligent) which could have caused the condition suffered by the claimant.In the instant case, he submits that it was not permissible for the judge to find that, however the accident happened, the appellant must have failed to pay proper regard to his surroundings. He may have been aware of his surroundings but slipped on a hidden object, he may have had a momentary lapse of attention, his sight of the edge of the mezzanine might have been compromised by the position of the board, or he could have slipped. None of these would make him negligent.[37]In seeking to draw inferences from the evidence, the judge entirely failed to consider whether it was safe to do so in circumstances where none of the respondents undertook any investigation as to how the accident happened or to preserve the scene. Had they done so it would have undoubtedly assisted the judge as to how the accident occurred. In this regard Mr Lyons relies on Keefe v Isle of Man Steam Packet Company [2010] EWCA 683 in which the Court of Appeal held that the judge was wrong to have afforded no weight to the fact that the difficulty of proof caused to the claimant who alleged deafness as a result of noise levels had been caused by the defendant’s breach of duty in failing to take any measurements of noise levels. At [19] the court said that if it is a defendant’s duty to measure noise levels in places where his employees work and he does not do so, it hardly lies in his mouth to assert that they were not excessive. In such circumstances, the court should consider a claimant’s evidence benevolently and the defendant’s critically. Although there is no breach of duty in the instant case, Mr Lyons submits that it is analogous to the facts in Keefe in that it is blindingly obvious that when someone suffers a serious accident, there is an obligation on both defendants to examine how it occurred and to preserve the scene. The judge in the instant case erred in treating the lack of an investigation by the defendants as a neutral factor.[38]The judge failed to take into account that the respondents did not address where the appellant was placing the board before he fell. The lack of evidence was not a neutral factor, but a factor which should be held against the respondents.[39]The judge made the finding of contributory negligence based on “inherent probabilities and experience.” It is unclear what his experience was and why he could legitimately use it. The use of such an undefined phrase undermines the ability to understand the judgment. It was in any event speculative, by use of this test, to find that the accident had happened because the appellant had failed to take sufficient care to familiarise himself with the layout of the mezzanine. As the judge recognised, there were a range of possible causes of the accident. None were found to be more likely than the other.[40]Two of the possibilities outlined in the judgment were that the appellant tripped or slipped when he was close enough to the edge of the mezzanine to fall over it. The degree of moral blameworthiness and causative potency of the appellant’s action if he tripped or slipped is evidently much less than if he stepped over the edge of the mezzanine. Accordingly, the failure to make a positive finding as to how the accident happened precludes the court’s finding of contributory negligence.[41]The judge can only have found the appellant’s evidence as to the risk not being obvious unconvincing on his own assessment of the risk and in so doing failed to take account that the appellant could not remember the accident or many events prior to the accident. His judgment was not even handed when he found this evidence unconvincing but then found it understandable that the respondents perceived the mezzanine as being safe. It was not open to him to make both of these findings given that the respondents, unlike the appellant, had been on the site for some time. This demonstrates the inherent unfairness of the judgment and the judge’s failure to properly reflect the burden of proof as on the respondents.[42]It was unsafe for the judge to make a finding about the lighting of the mezzanine from a photograph taken on a different day at an unknown time and the absence of any suggestion that it was poorly lit. Lighting was not addressed at trial. Furthermore, there was no evidence as to the lighting conditions on the day in question. This was the fault of the respondents by their failure to conduct a contemporaneous investigation. It was not for the appellant to pre-emptively rebut that there was good light on the day but for the respondents, who held the burden of proof, to raise this as an issue. Since the respondents had not asserted facts as to the area being well lit in its pleadings, the judge’s findings had the effect of reversing the burden of proof.[43]Mr Lyons refutes the suggestion that the appeal is on the judge’s findings of fact. Rather, he submits that it concerns the judge’s speculation. The judge impermissibly escalated speculative reasons to probable findings. He could not exclude that the appellant tripped over something rather than that he was not aware of the edge. The fact that the evidence did not permit the inferences that he drew and the inadequacy of his reasoning were errors of law.

Ground 5

[44]On ground 5, Mr Lyons submits that the judge’s finding as to the amount of contributory negligence was outside the range of reasonableness. Mr Lyons places emphasis on the fact that the respondents had control of the site and been present for a considerable period of time. There was nothing to suggest to the appellant that basic precautions would not be put in place for his safety. He submits in particular that: i) It is unsustainable to equate the same foreseeability for the appellant as for the respondents when the appellant had only just arrived on site and the accident occurred when the first plasterboard had been passed up; ii) It is further unsustainable to equate the same foreseeability for the appellant and for the respondents when the respondents knew about the protection from falling on the mezzanine being removed prior to the accident; iii) The judge appears to have ignored the evidence from the first respondent that he had told the other respondents that the crash mats and scaffold towers were going to be removed before they started work on the plastering and the rendering and there would be no barrier in place on the mezzanine. iv) Also relevant to this issue are the submissions already made concerning the judge’s findings as to the lighting, how the accident occurred, the degree of the appellant’s negligence no matter how it occurred, and the weight attached to the appellant’s and respondents’ foresight of risk.[45]The finding that the appellant’s conduct had equal causative potency is speculative and unsustainable on the facts. There was insufficient analysis of the respondents’ failings and the judgment is vague as to how the judge came to apportionment. As Lord Ackner said in Fitzgerald v Lane [1988] 1 AC 489 at 505G, the question of whether a claimant has been part author of his own damage requires careful evaluation of his conduct in the light of all of the circumstances of the accident. This the judge did not do as he made no assessment of it. There is a difference between stepping over the edge and slipping so that the appellant fell. When the judge could not say which it was, he should have judged the appellant’s conduct benevolently and found his apportionment to be no more than 10%.

Ground 6

[46]This ground concerns the evidence of Mr Tome-Fernandez and the way in which it was given. Mr Lyons accepts that this is not as powerful a ground as the others but more nuanced. He submits that this witness’ evidence was highly relevant to contributory negligence, the extent of the fault of the respondents and the credibility of the first respondent. He said in his witness statement that he recalled the respondent saying to him in passing that he would not allow his children on the mezzanine because it was too dangerous. He further said that he and other tradesman had accessed and worked on the mezzanine after the guard rail had been removed and before the day of the accident. This contradicted the first respondent’s evidence that no other tradesmen worked on the mezzanine when it was unguarded.[47]The judge misdirected himself as to the effect of Mr Lyons not cross-examining this witness. He was not required to do so as Mr Tome-Fernandez’ evidence was not in dispute. The evidence of Mr Tome-Fernandez was unchallenged and uncontroverted. The judge was wrong to describe it as “technically” unchallenged and wrong to find that the failure of the appellant to cross-examine Mr Tome-Fernandez should import less weight to his evidence. The judge should have weighed the fact that it was unchallenged in favour of accepting his evidence in full.[48]Mr Lyons accepts that the judge was not bound to accept Mr Tome-Fernandez’ evidence but submits that he would need to have a very good reason not to do so where the evidence was called but not challenged. The judge’s failure to approach the evidence in this way impacted on the judge’s assessment of the first respondent’s credibility and the apportionment of fault of the respondents. Respondent’s submissions Ground 1

Respondent’s submissions

[49]On ground 1 Ms Unthank submits that the judge was well aware that the burden of proof was on the respondents and reasonably concluded that the respondents had satisfied that burden on the basis of the findings of fact. She points to [78]-[79] of the judgment where, when dealing with the law, the judge correctly set out the test for contributory negligence including that the burden is on the defendant. He again set out where the burden lay before reaching the conclusions that he did at [83] and [84].

Grounds 2 and 3

[50]Ms Unthank submits that ground 2 amounts to an appeal on the facts and reminds me of the guidance given in Haringey LBC v Ahmed and Ahmed [2017] EWCA Civ 1861 to the effect that an appeal court should only interfere with a trial judge’s findings of fact and thus allow a challenge to such a finding where it properly determines that the finding of fact is unsupported by the evidence or where the decision is one which no reasonable judge could have reached. She submits that there was evidence to support the facts as found. She points to the following facts as relevant to the finding of contributory negligence: i) That the appellant was a self-employed contractor and not an employee of Sheerline. This meant that he was subject to the duties imposed by Regulation 6 of the Work at Height Regulations including that he should ensure work is not carried out at a height where it was reasonably practicable to carry it out safely otherwise than at height; and to take suitable and sufficient measures to prevent, as far as reasonably practicable, any person falling a distance liable to cause personal injury. He was also subject to a duty under section 3(2) of the Health and Safety at Work Act to conduct his undertaking in such a way as to ensure, so far as reasonably practicable, that he is not thereby exposed to risks to his health and safety. ii) That the appellant came to the site of his own initiative and was not supposed to be there. It was most likely that he had offered to help Mr Wakeling move the boards of his own initiative and was not instructed how to do so. iii) The mezzanine was well lit at the time of the accident and its open sides and the absence of crash mats were clearly visible. There was an obvious and foreseeable risk of falling if a worker was working close to the edge or approached it with insufficient caution. The judge found the appellant’s evidence that the risk was not obvious to him unconvincing. In his judgment the risk was obvious to any person taking ordinary care of their surroundings and particularly to any experienced tradesman who was used to working in a variety of different settings. He found that the risk was as obvious and foreseeable to the appellant as to the respondents.[51]These findings were plainly available to the judge on the evidence. He set out how he reached those conclusions at [84]. In terms of the appellant’s foreseeability, it is relevant that the unprotected sides were not a trap but were obvious. The appellant was an adult skilled tradesman and self-employed contractor who had a statutory duty to conduct his undertaking in such a way as to ensure as far as practicable that he was not thereby exposed to risks to his health and safety.[52]The judge was entitled on the evidence to find that the mezzanine was well-lit. The accident occurred between 3.30 and 4 PM when it would have been light outside. There was no allegation by the appellant or other evidence to the effect that it was otherwise. The photographs were taken within a day or two of the accident and showed the windows in the property. The point he was making was that the edges of the mezzanine were visible. No one suggested otherwise or said that the mezzanine was in darkness.[53]There was evidence from the second respondent and from Mr Wakeling that as the mezzanine was 5m wide it was large enough to work there safely by avoiding working near the sides or by taking particular care if it was necessary to work near them. The size of the boards and the mezzanine were such that it was possible to move the boards and not fall from the edge if the appellant had paid sufficient attention.[54]It was a reasonable inference from the facts that, as a matter of inherent probability and experience, it was likely that the accident happened because the appellant failed to take sufficient care to familiarise himself with the layout of the mezzanine and ensure that he avoided approaching the opposite side with the result that he stepped or overbalanced in some way. It was a further reasonable inference that if the appellant did trip or slip on some object close to the edge, that would have been due to a failure to take sufficient care to familiarise himself with his surroundings and look where he was going. Moreover, focus should be on the pleadings which referred to the lack of a guard rail on the mezzanine as the reason for the accident. It was not pleaded that the mezzanine was untidy or that there was a trip hazard. Taking into account the appellant’s duty to take sufficient care of his own health and safety, that he should have known where to put the boards, how heavy and wide they were and the width of the mezzanine he should have been able to stay away from the edge.[55]Ms Unthank did not accept the possible scenarios put forward by Mr Lyons as causes for the accident. It was speculation that he may have slipped on an object. He could have moved the boards safely without falling over the edge if he had worked in a safe way and he had a duty to hold them in a proper way. A momentary lapse would have been no excuse. The edge was there to be seen and he should have stayed away. If his vision was compromised, he should have taken more care. Any possible explanation reasonably leads to the fact that the accident could have been avoided if the appellant had exercised reasonable care for his own safety. The facts are very different from those in the case of Wilsher.[56]Ms Unthank submits that the judge was correct to reject the argument that the respondents must have failed to prove contributory negligence in circumstances where the precise manner in which the accident happened is unknown. It was open to the judge to draw reasonable inferences on the balance of probabilities from the limited evidence, his primary findings and the inherent probabilities. He knew and set out the limitations of the evidence and knew enough for him to draw the conclusions that he did from it. This was not a case where the appellant could have fallen by some force of nature, because he was pushed or because the platform gave way. Ms Unthank refers me to paragraph 4-13 of Charlesworth and Percy on Negligence 15th edition which was in the trial bundle read by the judge to the effect that:
“It is not necessary, in order to discharge the burden of proof, that the Defendant give evidence, because contributory negligence can be inferred from the evidence adduced on the claimant’s behalf or from the primary facts, as found by the court on the balance of probabilities.”
[57]Ms Unthank has further relied upon the Court of Appeal judgment in Campbell v Advantage Insurance Co Ltd [2021] EWCA civ 1698 at [16]-[18] and [31]-[33]. In that case, when considering contributory negligence, the judge had to make findings of fact on how the claimant got from the front to the rear passenger seat in the absence of direct evidence. On appeal, the appellant made similar submissions to those made in this case, including that the judge had reversed the burden of proof in relation to the issue of contributory negligence and that the judge had made findings of fact based on impermissible speculation having regard to the known unknowns and unknown unknowns in the case. The appeal failed as the judge’s finding of fact were “soundly based on the known facts and reasonable inferences drawn from those facts.”[58]In this case the judge’s approach was considered, appropriate and not wrong. He was alive to the issue being raised in the 3rd ground of appeal. It was appropriate for him to consider and discuss the inherent probabilities and likely scenarios regarding how the appellant came to be so close to the edge (without positively finding any of them) and then conclude from the entirety of the evidence and consideration of the probable scenarios that the fall on the balance of probabilities was due to a failure of the appellant to take sufficient care to familiarise himself with his surrounding and look where he is going. Ms Unthank submits that it is not necessary to know exactly how the accident happened to safely make this finding. The question is whether the judge’s findings justify his conclusion that the appellant was contributorily negligent. Whether the appellant tripped, slipped or fell backwards, it all leads to the same conclusion – that he did not take enough care to stay away from the edge when he should have done. It was a wide platform, and the job did not require him to be near the edge.[59]Ms Unthank does not accept the appellant’s submission that the judge should have held the respondents accountable for a failure to preserve the scene and take photographs on the day of the accident. The weight he attached to this was a matter for him. The respondents in this case were not in breach of duty as those in Keefe were. The conclusions in Keefe were fact sensitive and not applicable in this case.

Ground 5

[60]Ms Unthank submits that the judge properly directed himself as to the law on quantifying the degree of contributory negligence viz. that he should assess the appellant’s share by reference to each party’s culpability and the causative potency of their respective conduct. These were two different things.[61]Following reasoned consideration of the facts the judge was entitled to find that the conduct of the appellant and respondents taken as a whole had equal causative potency – that the insufficient care taken by the appellant was equally causative of the accident. He then went on to look at the relative culpability of the parties and properly found that the respondents had a materially greater responsibility for the reasons he gave.[62]In reaching the appropriate apportionment, the judge properly took into account that the appellant was self-employed and subject to statutory duties connected with his own health and safety; that the regulatory duties of the appellant and respondents were not equivalent; and that the purpose of the statutory regime is to prevent foreseeable accidents that might occur due to momentary lapses in care by workmen.[63]Neither the approach nor the reasoning were wrong. The apportionment was not one that no reasonable judge could reach.

Ground 6

[64]Ms Unthank submits that this ground comes down to the weight which the judge should have afforded to the unchallenged evidence of Mr Tome-Fernandez. She submits that weight is a contextual evaluation for the judge who reads, hears and sees the evidence of the witnesses and it is inappropriate for this court to interfere with that evaluation unless it is perverse. She submits that it is not perverse in this case.[65]The judge’s approach cannot be faulted. He found that the existence of inconsistencies between the statements of the first respondent and Mr Tome-Fernandez was relevant mainly to their credibility and reliability as witnesses. On that issue the judge was better able to assess the first respondent as he had been extensively cross-examined. He found him to be honest and doing his best to give truthful evidence.[66]The judge was saying that he did not have to accept the evidence of Mr Tome-Fernandez. Rather, he looked at all the evidence in the round and decided on all the facts of the case as to whether to accept his evidence or that of the first defendant on the points in issue.[67]In any event, this particular finding of fact was not relevant to the issue of contributory negligence given that the judge did not find that working on the mezzanine per se was negligent, rather it was the failure of the appellant to take reasonable care to stay away from the edge.

Respondent’s conclusion

[68]In conclusion, the respondent submits that the appellant is trying to have another “bite of the cherry” and impermissibly asking this court to make its own judgment and substitute that for the judge’s findings notwithstanding that the judge heard live witnesses and detailed submissions over three days.[69]The judge did not err in law or fact. The findings of fact were supported by the evidence and the decisions were not ones that no reasonable judge could have reached.

The law

[70]There is no dispute that the judge correctly identified the law on contributory negligence as set out at [24]-[28] above.[71]By Rule 52.21(3) an appeal will be allowed if(a) the decision of the lower court was wrong;(b) the decision was unjust because of a serious procedural or other irregularity. The appellant relies on rule 52.21(3)(a) in this appeal.[72]The appeal court should only interfere with a trial judge’s findings of fact and thus allow an appeal on the basis of a challenge to such a finding where it properly determines that the finding of fact is unsupported by the evidence or where the decision is one which no reasonable judge could have reached. Haringey LBC v Ahmed and Ahmed (infra).[73]In Prescott v Potamianos [2019] EWCA Civ 932 at [72] to [78] the court said that:
“on a challenge to an evaluative decision of a first instance judge, the appeal court does not carry out a balancing exercise afresh but must ask itself whether the decision of the judge was wrong by reason of some identifiable flaw in the judge’s treatment of the question to be decided ‘such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion.”
Lewison LJ said that appellate courts should not interfere with findings of fact by trial judges unless compelled to do so. This applies to findings of fact, the evaluation of those facts and to inferences to be drawn from them.

Discussion

[74]It is convenient to first consider the discrete point raised in ground 6 concerning the way in which the judge approached the conflict in the evidence of Mr Tome-Fernandez and the first respondent as to whether other tradesmen had previously worked on the mezzanine after the guard rails were removed.[75]The appellant did not dispute the evidence given by Mr Tome-Fernandez. Mr Lyons is right to say that in those circumstances he was under no obligation to “cross-examine” the witness and was entitled to rely on his account. It was not open to the judge to conclude otherwise, nor could he properly criticise Mr Lyons for the approach he adopted.[76]However, as Mr Lyons rightly concedes, the fact that Mr Tome-Fernandez’ evidence was undisputed and unchallenged did not mean that the judge was bound to accept it and prefer his evidence to that of the first respondent on the issue. It was a matter for him to weigh the evidence and decide which he accepted.[77]In making that decision, the judge observed that he had seen the first respondent rigorously cross-examined in the course of the trial, whereas he had not seen Mr Tome-Fernandez so tested. As he said at [57] this gave him greater opportunity to assess the honesty and reliability of the first respondent.[78]In so saying, the judge did not ignore the evidence of Mr Tome-Fernandez. As he recognised at [24], he had to consider his evidence together with the other available evidence. Having done so, he concluded at [56] that the first defendant was an honest witness doing his best to give truthful evidence.[79]Looking at the judgment as a whole, I do not accept that the judge adopted an impermissible approach in assessing the evidence of Mr Tome-Fernandez. Whilst his conclusion may have been better expressed, he chose to accept the evidence of the first respondent: a witness he had seen rigorously cross-examined and whom he found to be credible. Having seen and heard the evidence this was a conclusion he was entitled to reach.[80]In any event, I agree with Ms Unthank that this particular finding of fact was of limited, if any, importance in the trial. It had little relevance to the issue of contributory negligence given that the judge did not find that working on the mezzanine per se was negligent; rather it was the failure of the appellant to take reasonable care to stay away from the edge.[81]I turn to ground 1 and the assertion that the judge did not properly apply the burden of proof. I find myself unable to accept that was the case. The judge correctly identified the law in the course of his judgment. At [78], he cited the test for contributory negligence set out in Lewis v Denye (see [27] above) and stressed at [79] that the burden was on the defendant to show that the claimant was negligent (in the sense of failing to take reasonable care for his own safety, rather than in breach of duty) and that this was a material cause of the accident. He referred to that test again at [83] immediately before setting out his conclusions. There is nothing in the judgment in my view to support the proposition that, whilst correctly identifying where the burden of proof lay, the judge then failed properly to apply it.[82]I take grounds 2 and 3 together. These are the principal grounds upon which the appellant relies in this appeal. Together they raise the question of whether the judge’s finding of contributory negligence was soundly based on the known facts and reasonable inferences drawn from those facts or amounted to impermissible speculation.[83]It is important to acknowledge that this was a case where, as a result of the consequences of the accident, there was no evidence from the appellant (who suffered retrograde amnesia) or any other person on the site as to how the accident occurred.[84]The judge was well aware of the limitations of the evidence. At [82] he stated that the available evidence was not such that it enabled him to make any positive finding as to how precisely the accident occurred. There was more than one way in which it might have happened and the precise way that it did was a matter of speculation. However, at [83] he did not accept that the absence of any clear evidence as to how the accident happened of itself meant that the respondent could not discharge the burden of proof. He was permitted to draw reasonable inferences on the balance of probabilities from the limited evidence, his findings and the inherent probabilities. I consider him correct to so conclude. It is clear from Campbell v Advantage Insurance Company that it is open to a judge to make findings of fact based on the known facts and draw reasonable inferences from those facts.[85]The judge made a number of findings of fact at [58]-[69] with which the appellant rightly does not take issue in this appeal. The appellant was a self-employed contractor with a duty to conduct his undertaking in such a way as to ensure, so far as reasonably practicable, that he was not exposed to risks to his health and safety; he had been a plasterer for 17 years; he came to the site of his own accord and offered to help with the moving of the plasterboards; the open sides of the mezzanine were clearly visible. There was an obvious and foreseeable risk of falling if a worker was working close to the edge or approached it with insufficient caution. These findings were all open to the judge on the evidence.[86]Mr Lyons takes issue with the judge’s use of the photograph to conclude that the mezzanine was well lit in the absence of direct evidence on the point. I do not accept that the judge fell into error in this regard. The accident occurred at approximately 3.30 PM on a summer’s afternoon. No witness suggested that the mezzanine was in darkness or that the light was such that it made it difficult to see when standing on it. The judge was aware that the photograph had not been taken on the day in question (see [32] of the judgment). It did however show the mezzanine itself and a window close to it. In those circumstances, he was entitled in my view to conclude that it appeared to be well lit by natural light with the unguarded side shown in the photograph clearly visible. In any event, the appellant in evidence had accepted that the lack of a guard rail and crash deck was obvious.[87]The judge acknowledged at [82] that it was unfortunate that no photographs had been taken immediately following the accident which might shed light on where the appellant was placing the board when he fell. I accept that photographs and/or an investigation by the respondent may have been of help in the case but I am unable to accept that their absence of itself rendered the judge unable to reach inferences as to the appellant’s negligence. It was a factor for the judge to consider in reaching the conclusions that he did. In so doing, he was entitled to also rely on the evidence of the first respondent that, save for putting up the guard rails after the accident, nothing else had changed. I do not find Keefe helpful on this point. That case was factually very different from this. There was no duty on the respondent in this case to have taken photographs or to have conducted an investigation.[88]At [84] the judge set out the basis for his finding that the appellant was contributorily negligent. I do not accept Mr Lyons criticism that this is insufficiently detailed. The conclusions were all based on findings of fact that the judge had explained in the earlier part of his judgment.[89]As I have said, the central question in this appeal is whether the judge could on the evidence safely infer that the appellant’s negligence was a material cause of the accident. In my view he was entitled to so find for the reasons he gave: i) The open sides of the mezzanine and absence of crash decks were clearly visible. They created an obvious and serious risk of falling if a worker was working close to the open side or approached it with insufficient caution; ii) The risk was obvious and foreseeable to any person taking ordinary care of their surroundings and particularly to an experienced tradesman who was used to working in a variety of different settings; iii) That risk was as obvious and foreseeable to the appellant as it was to the respondent; iv) As the mezzanine was 5m wide, it was a risk that was manageable by taking care to avoid working near the sides or taking particular care if it was necessary to work near them. The appellant was not working on a narrow ledge with a high risk of falling however careful; v) The appellant fell from the opposite side to where he was receiving the boards. There was no reason for him to have been working on that side. There was sufficient room for him to move the plasterboard without doing so.[90]I accept that it is unclear to what the judge was referring when he spoke of “experience” as a factor in finding that the accident happened because the appellant failed to take sufficient care to familiarise himself with the layout of the mezzanine and ensure that he avoided approaching the opposite side. However, the facts in my view entitled the judge, without the need to speculate, to infer that however the accident was caused the appellant must have misjudged the space. I agree with Ms Unthank that it is not necessary to know exactly how the accident happened to safely draw this inference.[91]Mr Lyons posited a number of possibilities for how it was that the appellant fell. None in my view would have precluded the conclusion reached by the judge. Whether the appellant tripped, slipped or fell backwards the judge was entitled to find that it all lead to the same conclusion – that he did not take enough care to stay away from the edge when he should have done. It was a wide platform and the job did not require him to be near the edge. This was a reasonable inference from the facts as he found them to be.[92]That is what distinguishes this case from the case of Wilsher. Wilsher concerned a situation where it was not possible to say which of a number of factors, some negligent and some not, caused the medical condition of the claimant. Such is wholly different from the facts of this case.[93]I turn finally to ground 5 and the question of apportionment. As said in Campbell v Advantage Insurance the apportionment of responsibility in contributory negligence is, like making findings of fact, very much a decision for the trial judge to make. The court cited Jackson v Murray [2015] UKSC 15 in which the Supreme Court emphasised the limited basis on which a Court of Appeal could interfere with the trial judge’s apportionment of responsibility. An appellate court could interfere only if the judgment exceeded the ambit where reasonable disagreement was possible and the court below had gone wrong.[94]In my judgment there is nothing to show that the judge’s apportionment in this case was wrong. The judge had first to consider causative potency. As I have said, the judge was entitled to find that however the appellant came to fall from the mezzanine he did not take enough care to stay away from the edge when he should have done. The accident would therefore have been avoided if he had taken care for his own safety.[95]The accident could also have been avoided had the first respondent installed guard rails or other barrier or injury reduced had there been crash mats or if the second respondent had taken steps to ensure the appellant’s safety when there. The judge was entitled to find in those circumstances that the conduct of the appellant and the respondents had equal causative potency. I do not accept the appellant’s submission that the respondent had greater causative potency by reason of the fact that they had been on site for longer and would have a greater appreciation of the risks posed by the unguarded mezzanine. The risks were clear and obvious to all, including the appellant who was an experienced tradesman. The judge was certainly entitled to so find.[96]The judge then properly considered culpability. He rightly found that the respondents should bear the substantial part of the responsibility for the accident for the reasons he stated. His reasoning is clear and the criticism that the judgment is vague in this regard unfounded.

Conclusion

[97]For the detailed reasons set out above (on ground 1) the judge applied the correct burden of proof throughout; (on ground 2) the judge’s findings of fact were properly made; (on ground 3) the judge was entitled to draw the inference that the appellant was contributorily negligent on the basis of the facts as he found them; (on ground 5) the judge was entitled make a finding of a reduction of one third for contributory negligence; and (on ground 6) the judge did not misdirect himself in his approach to the evidence of the witness Mr Tome-Fernandez. This appeal is therefore dismissed.