Andrew Young (instructed by Slater Gordon) for the Appellant.
MR JUSTICE FORDHAM:
This is an in-person hearing of a renewed application for permission to appeal against judgments given and orders made by Recorder Cameron (“the Judge”) at Sheffield County Court on 20 November 2019 and 24 March 2020, after a three-day trial from 18 to 20 November 2019. The claim was for damages in respect of injury sustained by the Appellant when he fell at a Portuguese resort hotel on a package holiday which he and his wife had bought from the Respondent. The fall took place late at night on 10 June 2014. A resort security guard (Mr Pedrosa) had found the Appellant lying injured on a service road outside the hotel. The Appellant and his wife had parted company outside a lift within the hotel building where their bedroom was and there is a plan within the trial materials which shows the layout although without indicating in detail the location of the lift or lift door. The Appellant’s wife had gone in the lift and up to the bedroom. The Appellant had gone for a walk. There was an entrance to the hotel building near the lift. There was also an emergency exit at the end of a corridor. Outside the emergency exit there was a path with no handrail. Between the path and the service road there was a rockery on an incline which can be seen from photos which I have been shown.
The case for the Appellant at trial was in essence that the absence of any handrail was a hazard which put the Respondent in breach of an actionable duty. In his first judgment the Judge found that the absence of any handrail was an obvious hazard to anyone coming out of the emergency exit who was unfamiliar with the path, and in principle constituted an actionable breach. Whether in those circumstances the Appellant could recover damages depended, in particular, on how the fall had occurred. The Appellant’s pleaded case advanced at trial was that he had gone down the corridor, exited through the emergency door onto the path to go for his walk, and having done so had fallen down the rockery and onto the service road sustaining the injuries. The Respondent joined issue with this and put the Appellant to strict proof.
In the First Judgment the Judge found that the Appellant’s case had not been proved on the civil standard. He observed that there was “very limited evidence”. A witness statement by the Appellant was in evidence under the Civil Evidence Act 1995 having been given at a time when the Appellant had capacity. As to that, the Judge said it was clear from that witness statement that much of the Appellant’s evidence was reliant on what others had told him. The Appellant’s wife had made a witness statement and had been cross-examined and re-examined. The Judge accepted that her evidence was truthful and accurate. But the Judge found that the Appellant’s wife could not say, from her own observations, where the Appellant had gone after she got in the lift. The Judge also referred to what he said was “clearly” an “assumption” that had been made, that the Appellant had (or might have) exited the emergency door, but that the “basis” for that was “wholly unexplained”. The Judge referred to the blood and the piece of glass from the Appellant’s glasses, these having been found by a drain in the service road (the drain also being visible in the photographs which I have been shown), which location the Judge said “may represent the site where trauma was sustained”. The Judge referred to evidence as “not inconsistent with” the Appellant’s case but “not proving it either”. The Judge found that it was more likely that the Appellant had gone out for his walk through the door near the lift and not through the emergency door at the end of the corridor. He gave the “basis” for that which was twofold. First, that the Appellant wanted a walk and – after seeing his wife to the lift – was standing virtually next to the external door through which he had just entered and it was more likely that he went out again through that door. Secondly, that even if the Appellant had instead lost his way or even deliberately gone down the corridor leading to the emergency door, it was still more likely that he would have retraced his steps to the door near the lift rather than open an emergency door. The Judge concluded that, “however the incident occurred”, it was more likely than not that it did not happen by the Appellant exiting through the emergency door. Therefore, it did not happen in the way pleaded and the claim must fail. That was the First Judgment.
The Second Judgment arose because Counsel for the Appellant made an application on 25 November 2019 to amend the Particulars of Claim, post the delivery of judgment (orally) but prior to the sealing of the Court’s order. As everybody recognised, that was an exceptional course, but it can be appropriate. Reference has been made in the papers to the case of Stewart v Engel  1 WLR 2268, but it has not been necessary for me to be provided with the authority or taken to it. The basis of the application for post-judgment amendment was that the Appellant ought to be permitted to rely on an alternative way in which the incident could have occurred, namely that without exiting the emergency door, the Appellant had found himself on his walk outside the emergency door – which could not be opened from the outside – and, in the absence of a handrail, had fallen down the rockery onto the service road. The argument was that if that was what had happened, the claim in damages should succeed. The argument moreover was that if either the original scenario (exiting through the emergency door) or the alternative scenario (being outside it and unable to get in through it) had occurred, the claim for damages should succeed.
The Second Judgment dealt with the application. In fact, by then the order had been sealed. As to that, the Judge made clear that this had not been his intention and he considered, on its legal merits, the application for permission to amend the pleaded claim, post-trial and post-judgment. In doing so, the Judge explained that – in light of the application to amend now being made – it was appropriate to address whether the “alternative factual scenario” now being put forward “would be proved” on the basis of “the evidence that was available at the trial”. The Judge encapsulated the Appellant’s position as being that, on the evidence available at trial, it was “more likely than not that [the Appellant] either came out of [the emergency] door or approached that door with a view to going into it”. The Judge referred to the evidence as to the location of the blood and glass, which he said involved “no direct indication” of the Appellant having been in the vicinity of the emergency door or rockery immediately below the path leading from the emergency door. The Judge ruled that, on the basis of the evidence available at trial, had the alternative case of attempted entry through the emergency door been pleaded at the time he gave the First Judgment, he would have made it clear that “neither the original nor the alternative case had been proved on the balance of probabilities”. He said that “the evidence that I heard is at least equally consistent with [the Appellant] simply falling whil[e] walking along the service road and not falling from the door or the path at all”. In those circumstances, the Judge said, “had the pleadings been amended during the course of trial at any time before I had given my judgment the eventual result would have been the same in that I would have dismissed the claim”. In those circumstances, he said, it could not be appropriate to allow the amendment to plead the alternative claim.
Permission to appeal was refused on the papers by Eady J who gave detailed reasons.