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Graham v Chorley Borough Council, Court of Appeal, 21 February 2006

3 March 2006
The issues

Defective Premises Act 1972 – No Case To Answer – Defendant Not Put To Its Election – Claimant Tripped On Raised Flagstone

The facts

The Claimant said she had tripped on a raised flagstone and fallen over. She argued that the local authority who was the landlord had failed to repair the flagstone. The flagstone was part of a path at the rear of her property. She claimed she had made requests that something be done about it.

She made her claim in negligence and also for failing to discharge its statutory duty and also for failure on the part of the local authority to discharge its statutory duty under the defective premises act 1972. In the course of the Trial the local authority submitted that it had no case to answer arguing that the Claimant had failed to prove that there was a defect that gave rise to any foreseeable risk or that any defect was the cause of her fall. The Judge accepted the plea of no case to answer and entered Judgment against the Claimant. The Claimant appealed. The Judge had failed to apply the right test to the plea. The test was contained in Benham Ltd v Kythira Investments Ltd. In that case the Court of Appeal said that rarely if ever at all should a Judge who was trying a civil action without a Jury entertain a submission of no case to answer.

The decision

The Judge had been wrong in that case because the Defendant’s witnesses might be expected to have material evidence relevant to the issues in the action. The case to answer would be established by evidence however weak and the Judge who heard such a submission should remember that the Defendant might call no evidence or that the evidence he did call might prove helpful to the Claimant. The test to be applied if a Judge did entertain a submission of no case to answer without putting the Defendant to an election was whether or not in the evidence of the Claimant had adduced the claim had a real prospect of success.

The Judge’s failure was a serious procedural irregularity. If a Judge was willing to hear a submission of no case to answer without putting the Defendants to the election, if the Defendants had material evidence and were ready to give on an important issue the Judge should not judge the merits of the Claimant’s case half way through the Trial on the balance of probabilities but should ask himself whether the Claimant had advanced a prima face case strong enough to call for an explanation from the Defendant. In this case cross examination of witnesses might have strengthened the Claimant’s case and if the local authority had decided to call no evidence, it would have been open to the Claimant to ask the Judge to draw adverse inferences. Appeal allowed and re-Trial ordered before a different Judge.

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