Short story first published in the ACES ‘The Terrier’ Magazine in Summer 2006.
The Burden of Proof
‘There’s been no justice in this Court today!’
That cry rang round the emptying Courtroom as the Judge exited through the connecting door to his Chambers. I felt inclined to agree with the sentiment of that outburst although not for the same reasons as the person uttering it. Mrs Jean Rigg v South Lakeland District Council was finally over.
Regardless of how many times I’ve been involved in Court cases, and there have been a few over the course of my career, I am always amazed by the justice system. I’m amazed by how long it takes – not only on the day, but how long it takes to get to Court. I’m amazed by the skill with which the Barristers make something important and credible out of the most incidental and trivial detail. I’m amazed by the twists and turns of events as even the most open and shut case builds and then unravels before your eyes. No wonder it makes such excellent television drama. The sheer unpredictability of the result when it finally arrives is usually the most amazing part. However, on this occasion, what amazed me the most was that even the Judge looked younger than me. It was a sure sign that I had been around too long.
In her statement the elderly Mrs Jean Rigg had said that on the 18th July 2001 ‘I walked around the back of the Coronation Hall, passed the public toilet on my left. I walked up the step and as I walked up the slight incline, I tripped over a raised manhole cover. I tried to stop myself falling but stumbled forward and to the right, eventually falling against a wooden door at the side of the Coronation Hall.’
Mrs Rigg dislocated her shoulder and was knocked unconscious. After hospital treatment and a period of recuperation, being cared for by her relatives, she made a full recovery. In November 2003 she made a claim against the Council for compensation. Unfortunately, on 23rd September 2005 Mrs Rigg died of leukaemia, a condition unrelated to the accident. That is what made the case unusual and interesting – her relatives decided to continue with it after her death.
So it was that as Property Services Manager to the Council (although just into my first week with NPS NW Ltd) I found myself required to attend Lancaster County Court in April 2006 to give evidence on behalf of the Council. I had to attest that the Council owned the land and that the manholes in it belonged to the Council. My particular expertise in respect of the adequacy and frequency of the inspection and repair of the Ulverston (Brogden Street) Public Conveniences, and in particular the manholes outside them despite my never having seen them in my life prior to the accident, was to be tested under cross examination. Fortunately my expertise was reduced to one of inspection and repair policy only once I had tracked down Godfrey Crespin, the Building Surveyor who had been responsible for carrying out the inspections and organising the repairs around the time of the accident. He had left the Council and moved to Sheffield before the claim was made but agreed to return to give direct evidence on the condition of the manholes at the time of the accident.
It was difficult to demonstrate the professional management of our inspection and repair regime at the time of the accident because all Godfrey’s property inspection records had been destroyed as part of the impending office move about one month prior to the claim being lodged. In the haste to pack I’d broken the habit of a lifetime and heeded the advice of a Chief Executive. He had issued the general instruction to the Property Services Group to ‘take the opportunity to destroy as many old records as you can so you won’t have to refer to them in future when a Freedom of Information request is made.’
It seemed that advice had never been offered to any other Group as, in the event, I found myself scouring through mountains of paper in the Town Hall basement for old travel claim forms to prove that Godfrey had inspected the premises regularly before and after the accident. I also found myself interrogating an obsolete I.T. database to glean records to prove that we had been repairing the premises, particularly flagstones providing tripping hazards immediately adjacent to the manholes, prior to and immediately after the accident date. Despite the unusual format of this evidence I was pleased at what it showed – a regular inspection regime with a focus on tripping hazards in the immediate vicinity of the accident location at the relevant time. Our Insurers must have been pleased too as they had decided to contest the claim on the basis that there could not have been a significant hazard at that manhole at that time as we would have spotted it and repaired it.
By way of further proof Alastair Wilson, the Building Surveyor at the time of the claim (some 18 months including two winters after the accident) had measured the edge around the offending manhole at 20mm wide x 20mm deep. He had arranged to fill the edges of two manholes at that location in December 2003 just because we’d received the claim, despite still not considering them to be a hazard. As Alastair had also left the Council it was decided not to recall him but to allow me to give evidence of his actions from the repair records.
We arrived at Court at 9:30 am but sat around until 11 am whilst Barristers and Instructing Solicitors played shuttlecock between various anterooms, negotiating the amount of compensation that the Council (or its Insurers) would have to pay if we lost. This was agreed at £25000. All that remained was for the Court to decide liability.
The burden of proof lay with the Claimants and Mrs Rigg’s daughter was up first. The Judge referred to a photo that showed three manholes in the vicinity (see photo). There had been no witnesses to the accident but the daughter had visited the location some seven months (including one winter) later with Mrs Rigg when she had recovered from the effects of her injuries. According to the daughter Mrs Rigg had pointed out the offending manhole (Manhole 2, the one in worst repair) and photographs had been taken. The daughter had inserted a ruler into the gap around the manhole edge to demonstrate its depth. The photographs were of poor quality and showed little clarity of detail. No other measurements had been taken.
When asked how deep the gap had been her reply was:
‘One and a half to two inches’.
‘I’m sorry, can you be more precise? Can you say exactly how deep it was?’
‘It was exactly one and a half to two inches deep’
The son-in law was up next and added nothing to the evidence of his wife except to confirm what she had said. The Judge was concerned about the lack of any direct evidence other than the words in Mrs Rigg’s statement. The Council’s case was looking good.
Then it was the turn of the Defence and I found myself facing a young, eager and very sharp lad who was determined to make mincemeat of me under cross-examination. I have to say that I acquitted myself reasonably well by sticking to my story. That is, until his very last question when he pinned my wings firmly to the wall.
‘Do you know for a fact which manhole Mr Wilson actually measured?’
This was the manhole with the 20mm x 20mm gap that couldn’t possibly have been a hazard. I had assumed that Alastair had measured the correct manhole. His notes didn’t say which. I couldn’t remember asking him. I couldn’t possibly know it for a fact, as I hadn’t been there when he’d measured it. Never assume anything.
‘Good question,’ I stalled.
‘It is a good question.’ He knew that he had me.
‘No, I don’t know which one for a fact.’
The Judge commented that Mr Wilson seemed to have measured the wrong manhole. There was a dent in our defence.
Godfrey was up next as our main witness. He had impeccable credentials as a Public Health Engineer with decades of experience. Drainage was his specialist subject and manholes were his bread and butter. He had walked over the manholes to inspect the Conveniences on numerous occasions. His travel claims proved he was there at the relevant times. He looked for trip hazards – Health and Safety was second nature to him after a lifetime in the construction industry. He’d had that white line painted on the nosing of the bottom step next to the manhole. He’d arranged to fix the cracked flags on the access ramp around the time of the accident.
Counsel tried to shake him by asking every question three times in slightly varied form. If he had seen the gap around Manhole 2, as shown in the Claimant’s photo, would he have arranged for its repair? Yes, No, Perhaps – it was difficult to tell from a grainy black and white photocopy of a poor quality photo – probably, but that was 7 months after the accident. It could have deteriorated over the winter. Had a seed of doubt been sown in the Judge’s mind? There were mutterings from the Judge about the lack of a codified footway inspection system. Did Godfrey follow a checklist? Had he been specifically and formally instructed by the Council in what to look for? No, of course he hadn’t. There was no need. He relied on his many years of experience and his professional judgement to recognise a hazard when he saw one. Was the case slipping away from the Council?
Summing up was a contrast of styles:
Counsel for the Council (how I do like that phrase) was short, sharp and punchy. He offered the Judge the three tests that the Claimants had to prove to be successful:
- What was the cause of the accident? On the balance of probability had they shown that Manhole 2 was the cause? Where was the direct evidence? There wasn’t any other than Mrs Rigg’s words in her statement. There were no witnesses on the day, the Claimant was dead, and the other witnesses had not provided anything relevant. There was doubt about what had actually happened.
- Was the accident foreseeable? The Council had an adequate and regular inspection regime carried out by competent professionals and had not deemed any of the manholes to be dangerous.
- Had the Council a duty of care to visitors to the Conveniences? The Council conceded this as landowner but argued that the standard for such a duty was less on private land under the Occupiers Liability Acts than would be expected on a Public Highway. Relevant precedents were quoted (but dismissed by the Judge).
By contrast, Counsel for the Claimant went on at some length and in considerable detail. He invited the Judge to afford some leeway on the direct evidence in the circumstances of his client’s death. He took a very imaginative and well-argued route. He used the word ‘eventually’ from her statement to overcome any doubt about the distance from manhole 2 to the door that she crashed into. He used the photographs to demonstrate the existence of the defect and the corroboration by the relatives that she had tripped over manhole 2 to overcome the lack of such specifics in Mrs Rigg’s statement. The Judge gave him what seemed to be an inordinate amount of latitude and encouragement to construct this explanation of events. He linked all three items of seemingly trivial information together so cleverly with the doubts that he had prompted from us in the witness box that even I was beginning to believe it was the Council’s fault.
At 2pm it was over and we were dismissed for lunch with an instruction to return at 2:45 for the decision. Counsel for the Council advised us that it could go either way.
The Judge’s summing up took 45 minutes and he kept us in suspense until the very end. The Judge accepted the validity of the three tests but dealt with only one; the cause of the accident and the mechanics of how it had occurred. Finally he said it; the direct evidence was simply not good enough. Mrs Rigg was unavailable for questioning. There was reasonable doubt about which manhole she had tripped over. She was injured, unconscious at the time. How could she be sure which manhole and at what point on that manhole she had tripped? He doubted that she would have staggered for that distance up an incline to crash with sufficient force into the doorway. Had she recovered her balance and then tripped again? She may have changed her mind under cross-examination. The relatives’ testimony some seven months after the event was not direct evidence as to location or cause. No measurements had been taken despite the Claimant’s having had ample time. She may have picked the wrong manhole. No one could now know. The defect may well have deteriorated in the following winter. They had failed to prove the case and so he did not need to deal with the other two tests.
The two Counsels and the Judge then took another half an hour to haggle over the liability for and the minute details of the costs whilst the poor losers sat and listened in stunned silence. The Claimant’s had failed to meet the burden of proof so their side had to pay. Each legal representative came equipped with a calculator. The Barrister’s scale fee for the ‘fast-track’ hearing at £750 was nodded through without comment. The Instructing Solicitor’s costs at £110 per hour were cut back to £90 per hour because she had started the case at a lower grade but finished it at higher grade – congratulations all round but she could only have the starting rate. My fees at £38.28 per hour (calculated at the Council’s rate) raised an incredulous eyebrow and were rounded down from £304.53 to £300 without explanation. Godfrey’s £200 costs, supported by a hotel receipt because he had needed to come up from Sheffield on the previous evening, were reduced by the price of the newspaper provided by the hotel. Their calculators agreed costs at £3597.40.
The Council and its Insurers were happy. Our legal representatives were happy. I was pleased for them but derived little satisfaction from the result. Had Mrs Rigg lived we could have lost. She may have been superb in the witness box. We had won only on a technicality. It was the right result but for the wrong reasons. It was not the way I had wanted to win. I’d have preferred the Judge to have accepted the Claimant’s evidence on ‘Cause’ but to throw out the case on ‘Foreseeability’. I wanted him to say that the Council had a good inspection regime. That it had inspected regularly and that no defect existed at the manhole. That it had competent, qualified professional staff who knew what to look for and could be relied upon to use their experience and judgement to assess if a defect existed and was dangerous. Instead I could see what was coming.
Back at the office it didn’t take long for the e-mail request to arrive:
‘I’ve spoken to our Insurers. Can you please look into setting up a codified footway inspection system for Public Conveniences to avoid claims of this nature in the future?’
The tick box mentality had triumphed again. We live in a litigious society. The ambulance chasers with their ‘no win, no fee’ offers are everywhere. In that world someone else is always to blame for your carelessness. The burden of proof had just shifted in my direction.
‘There’s been no justice in this Court today!’
The son–in–law didn’t know how right he was when he’d shouted that at the Judge as we filed out of the Court. For me too there’d been no justice in that Court on that day.