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England and Wales High Court (King's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Merlin Entertainments PLC v Idziak [2023] EWHC 1597 (KB) (28 June 2023) URL: http://www.bailii.org/ew/cases/EWHC/KB/2023/1597.html Cite as: [2023] EWHC 1597 (KB) |
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KING'S BENCH DIVISION
On appeal from the Cambridge County Court
County Court case number: F09YM491
Royal Courts of Justice, Rolls Building Fetter Lane, London, EC4A 1NL |
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B e f o r e :
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Merlin Entertainments PLC |
Appellant /Defendant |
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- and - |
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Mrs Emilia Idziak |
Respondent /Claimant |
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Simon King (instructed by Buckles Solicitors) for the Respondent/Claimant
Hearing dates: Tuesday 20th June 2023
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Crown Copyright ©
MR JUSTICE JACOBS
A: Introduction
B: The trial
The evidence on Day 1
Submissions on Day 2
"In summary, the Claimant's case on breach of duty is misguided: the ride was audited as complying with relevant guidance/ industry practice; the brakes specifically had been checked and were in working order; there was nothing about the 11.55 error that ought to have put the Defendant on "notice"; the overspeed signal was caused by the sensors being too close together rather than any overspeed; and in the alternative any overspeed was de minimis. Further, temporary repair is part and parcel of day to day practicalities of running a theme part and not indicative of failure or breach of duty".
"Examination of the available guidance advising allowable accelerations suggests that the forces likely to be experienced by a passenger during a normal ride cycle are within acceptable limits."
Reference was also made in the skeleton to the April 2016 ADIPS certificate.
C: The judgment
"a further and, I think, unrelated problem, block six airline blown, which happened, I believe, in the morning".
"[20] It therefore appears to me that on the facts of this case there clearly was [fault] on the ride on the day in question, and that fault is a breach of contract and negligence and it is, as I say, significant that it did not just happen once or twice, but three times and that the real problem was not discovered until, on Mr Burton's evidence, the following day.
[21] He also accepted in evidence, when the brakes come into action because of some form of overspeed, whatever the cause may have been of the overspeed, the car will stop dead and clearly the faster you are going the greater will be the impact when the car stops dead and the greater will be the impact of the deceleration.
[22] Mr Wheatley says there is no evidence before me other than the evidence of the claimant and her friend as to what was actually happening on that day. The evidence of Mr Burton is based on his reading of the manual and what he would expect the situation to have been, and Mr Simms, as I say, was not there in any event.
[23] I have no hesitation therefore in accepting the evidence given to me orally by the claimant and her friend, that there was significant overspeed on this particular day, that it was as described unpleasant and frightening and that the deceleration was accordingly quite significant; it was not simply a minor matter.
[24] Therefore, as I say, on the issue of liability I have no hesitation in concluding that the contract itself was broken, plainly you do not expect this to happen when you go on a ride, and it is obviously also a question of had they been negligently maintained on the day in question.
[25] The ride is designed to travel within specified tolerances and if you exceed those tolerances you are exposing the passengers to a risk, which they have not contracted for."
"[26] Then we come to the question of quantum and Mr Wheatley accepts that on the evidence of Mr Norrish, who is the orthopaedic expert for the claimant, the claimant must be limited to two years from the date of the accident.
[27] It is also right to say the evidence from Mr Norrish is that if you take a more serious deceleration then the damage done to the neck and back region would have been greater than if the deceleration had been less, that must be right and as I have said I accept that in this case the deceleration was considerable and certainly more than the defendants were arguing for."
D: The arguments on appeal in relation to liability
Merlin's argument
The claimant's argument
"By the end of the evidence … it had been established that Mrs Idziak and Mrs Cetin had experienced excessively high speeds on the ride, requiring an emergency stop which was unpleasant and frightening. The main plank of the Defence, namely that any overspeed would be minimal and unlikely to cause harm. … [I]t was entirely foreseeable that a further overspeed would occur, and foreseeable that when it did the Respondent would be injured".
"despite much time and attention at trial and in the Appellant's 25-page Skeleton Argument being devoted to the issue of what precisely the fault was, this does not actually appear to matter: whether the emergency stop happened because the "car overspeed" caused the car to travel too fast for safety (as appears to be admitted in the Defence), or whether it happened because sensors on the car had been moved manually by the staff to incorrect positions so as, in effect, to "trick" the computer into thinking that the car was traveling too fast for safety (as … Mr Burton appeared to believe …), the result was that the ride shut down in an emergency stop – causing a deceleration injury to the Claimant".
E: Legal principles concerning adequacy of reasons
"(1) The duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties especially the losing party should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know (as was said in Ex parte Dave) whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.
(2) The first of these aspects implies that want of reasons may be a good self-standing ground of appeal. Where because no reasons are given it is impossible to tell whether the judge has gone wrong on the law or the facts, the losing party would be altogether deprived of his chance of an appeal unless the court entertains an appeal based on the lack of reasons itself.
(3) The extent of the duty, or rather the reach of what is required to fulfil it, depends on the subject matter. Where there is a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the judge (having, no doubt summarised the evidence) to indicate simply that he believes X rather than Y; indeed there may be nothing else to say. But where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence, but it is not necessarily limited to such cases.
(4) This is not to suggest that there is one rule for cases concerning the witnesses' truthfulness or recall of events, and another for cases where the issue depends on reasoning or analysis (with experts or otherwise). The rule is the same; the judge must explain why he has reached his decision. The question is always, what is required of the judge to do so; and that will differ from case to case. Transparency should be the watchword."
"[17]. We would put the matter at its simplest by saying that justice will not be done if it is not apparent to the parties why one has won and the other has lost.
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[19] It follows that, if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision. This does not mean that every factor which weighed with the Judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the Judge's conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process.
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[21] When giving reasons a Judge will often need to refer to a piece of evidence or to a submission which he has accepted or rejected. Provided that the reference is clear, it may be unnecessary to detail, or even summarise, the evidence or submission in question. The essential requirement is that the terms of the judgment should enable the parties and any appellate tribunal readily to analyse the reasoning that was essential to the Judge's decision.
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[118] In each of these appeals, the judgment created uncertainty as to the reasons for the decision. In each appeal that uncertainty was resolved, but only after an appeal which involved consideration of the underlying evidence and submissions. We feel that in each case the appellants should have appreciated why it was that they had not been successful, but may have been tempted by the example of Flannery to seek to have the decision of the trial Judge set aside. There are two lessons to be drawn from these appeals. The first is that, while it is perfectly acceptable for reasons to be set out briefly in a judgment, it is the duty of the Judge to produce a judgment that gives a clear explanation for his or her order. The second is that an unsuccessful party should not seek to upset a judgment on the ground of inadequacy of reasons unless, despite the advantage of considering the judgment with knowledge of the evidence given and submissions made at the trial, that party is unable to understand why it is that the Judge has reached an adverse decision."
"[19] I reached this conclusion for four reasons. It is not clear, from his judgment, that the judge understood the importance of the evidence given by Ms Garwood and Ms Mulqueen. If their evidence was correct, the claimant could not have been injured by the right-hand side wheelie bin because, on his version of the accident, it would have been found after the accident in the down position. The evidence of the two lady witnesses was that it was in the raised position after the accident, which is wholly inconsistent with the version of the accident given by the claimant. Secondly, the judge made no finding on the issue of whether, when the dustcart drove off, the right-hand side hoist was in the down position or upright. He did not find whether or not Ms Garwood was right when she said that, if the claimant said it was in the down position, the wheelie bin would have been left behind. Thirdly, having said that, in his opinion, neither of the two ladies were in any way trying to mislead the court, the judge did not explain on what basis their evidence was untruthful or inaccurate in respect of the position of the wheelie bin after the accident and after the vehicle drove off. In my judgment, it was necessary for him to explain that inconsistency if he was to say that he was accepting the claimant's evidence in preference to the evidence of those two witnesses. Fourthly, the judge cited the expert's evidence as corroborating the claimant's evidence. As the defendants submitted in their skeleton argument, that is factually incorrect. It is true that Mr Page's statement concluded that the accident was due to lack of proper training but he did not venture an opinion, nor could he, as to how the accident occurred. Put shortly, in my judgment, the judge never grappled with the need to explain why it was that he rejected the evidence of Ms Garwood and Ms Mulqueen on the crucial issue, the issue of how the accident happened. In my view, it was not sufficient for him to say, without more, that, having seen and heard the witnesses, he accepted the claimant's evidence. He ought to have explained why he rejected the evidence of the two ladies as either untruthful or mistaken."
"[1] The Court of Appeal does not usually entertain appeals where the only grounds of challenge to the judgment of the trial judge relate to the judge's findings of fact. Decisions of this Court and the Supreme Court have repeatedly recognised the advantages which the trial judge enjoys in hearing the live evidence and assessing the credibility of the witnesses. The function of the appeal court is not to re-hear the case but to review the decision which the trial judge has made. For this reason, it will only interfere with his findings of fact if it becomes clear that there was no evidence to support them; that the judge misunderstood the evidence; or that he made findings which no reasonable judge could, in the circumstances, have made see Re B (a Child) [2013] UKSC 33 at [52]-[53].
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[4] But the relative immunity of the trial judge's findings of fact to interference on appeal depends upon the trial process having been conducted in a way which confirms that the trial judge has properly considered and understood the evidence; has taken into account the criticisms of the evidence advanced by the parties' legal representatives; and has reached a balanced and objective conclusion about points on which differing or inconsistent evidence has been given in making the factual findings which form the basis of his decision.
[5] An important aspect of this process is the production of a properly reasoned judgment which explains to the parties and to any wider readership why the judge has reached the decision he has made. This includes making a reference to the issues in the case; the legal principles or test which have to be applied; and to why, in cases of conflicting factual evidence, the judge came to accept the evidence of particular witnesses in preference to that of others.
[6] The judge is not, of course, required to deal with every point raised in argument, however peripheral, or with every part of the evidence. The process of adjudication involves the identification and determination of relevant issues. But within those bounds the parties are entitled to have explained to them how the judge has determined their substantive rights and, for that purpose, the judge is required to produce a fully reasoned judgment which does so: see English v Emery Reimbold & Strick Ltd. [2002] EWCA Civ 605 . The production of such a judgment not only satisfies the court's duty to the parties but also imposes upon the judge the discipline of considering the detail of the evidence and the legal argument."
"[46] Without attempting to be comprehensive or prescriptive, not least because it has been said many times that what is required will depend on the nature of the case and that no universal template is possible, I would make four points which appear from the authorities and which are particularly relevant in this case. First, succinctness is as desirable in a judgment as it is in counsel's submissions, but short judgments must be careful judgments. Second, it is not necessary to deal expressly with every point, but a judge must say enough to show that care has been taken and that the evidence as a whole has been properly considered. Which points need to be dealt with and which can be omitted itself requires an exercise of judgment. Third, the best way to demonstrate the exercise of the necessary care is to make use of "the building blocks of the reasoned judicial process" by identifying the issues which need to be decided, marshalling (however briefly and without needing to recite every point) the evidence which bears on those issues, and giving reasons why the principally relevant evidence is either accepted or rejected as unreliable. Fourth, and in particular, fairness requires that a judge should deal with apparently compelling evidence, where it exists, which is contrary to the conclusion which he proposes to reach and explain why he does not accept it."
F: Discussion
"There was also a further and, I think, unrelated problem, block six airline blown, which happened, I believe, in the morning".
"In other words, the car was not going too fast but, rather, the sensors were too close together. Thus the computer "thought" that the car was travelling too fast, whereas in fact the car was simply travelling a shorter distance".
"Q. So, part of the cause of incident at 14.20 was the airline blown?
A. Yes, that would've been probably the main, the main contributing factor, the airline blown. Once that once that had shut down that would've shut the rest of the ride down and would've closed the blocks and stopped the two cars".
Conclusion