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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bayley v Tesco Stores Ltd [2001] EWCA Civ 504 (2 April 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/504.html Cite as: [2001] EWCA Civ 504

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CARDIFF COUNTY COURT
(His Honour Judge C Masterman)

		Royal Courts of Justice Strand London WC2
		Monday, 2nd April 2001

1. LADY JUSTICE HALE:This is a claimant's application for permission to appeal against the order of His Honour Judge Masterman in the Cardiff County Court dated 28th January 2000. He dismissed her claim for damages for personal injuries sustained at work and ordered her to pay the defendant's costs, with the usual caveat for publicly funded parties. The application for permission to appeal is dated 26th April 2000 and is therefore ten weeks out of time; so the claimant also applies for an extension of time.
2. The claimant was employed by the defendant from 1990 to 1995 in largely sedentary administrative work. In August 1995 she was transferred to the documentation department, where there were large amounts of files that needed moving. The claimant had had some health problems in the past and, in particular, she had had a back injury in May 1994, of which the defendant was aware.
3. There were two issues in the case relevant to liability. The first was how the claimant had sustained further injury to her back in August 1995. The second was whether that had been caused by any negligence or breach of statutory duty, in particular, of the Manual Handling Operations Regulations 1992.
4. On the first issue, the judge was troubled by a discrepancy in the pleadings. The proceedings were begun in August 1998 and the first particulars of claim had described the accident as taking place in this way:

"At 3.00pm on Tuesday 22nd August 1995, ... the Plaintiff was loading heavy bundles of computer data and associated reports which are contained in bound folders. The Plaintiff was expected to transport and subsequently lift the said folders from floor level into shelving of up to 8 foot in height at a rate of 50 files per morning. As the Plaintiff was carrying out her duties, she felt a sudden and severe pain in her lower back whereby she sustained personal injuries."

5. The particulars of negligence and breach of statutory duty given all related to lifting problems. However, the claimant's witness statement gave a somewhat different account, and the particulars of claim were amended on 13th January 2000. These described the accident as happening in the following manner:

"As the Plaintiff was carrying out her duties, which was that she was pushing a fully laden wheeled skip from the elevator, the wheel jammed and in attempting to free it, she felt a sudden and severe pain in her lower back whereby she sustained personal injuries."

6. The judge was concerned that there was no contemporary record of the accident. He also noted that in cross-examination the claimant had admitted that when she reported the incident she had described it as a lifting accident rather than as a result of pushing a skip. The judge found the claimant an inconsistent and confusing witness, and he remarked that he was in doubt whether she had been injured in the way that she claimed. On the first issue he therefore held that she had not satisfied him on the balance of probabilities that the accident had occurred as she said. That meant that her claim failed at the outset.
7. However, the judge went on to consider whether, if she had satisfied him as to how the accident had taken place, there would have been a case against the defendant under the Manual Handling Operations Regulations 1992 and, it might also be said, similarly in negligence. He concluded, in effect, that he preferred the evidence given on behalf of the defendant to the evidence given by the claimant. The evidence given on behalf of the defendant was to the effect that the claimant had been told that she was not to carry out any lifting or moving work which was beyond her and that she was to call upon her colleague, a young man called Mr Priddle, to do anything that she could not manage for herself. In those circumstances, the judge concluded that they had done all that could reasonably be expected of them and that therefore, even if the accident had happened as she said, there would have been no liability.
8. Mrs Bayley has presented a full bundle of documents to the court and a very clearly drafted statement of her case. She has also explained matters to me today, and she has done so very clearly. I understand that she feels a burning sense of injustice about this case. She cannot blame the judge, because his decision could only be as good as the information which he was given. The problem, in her view, was that she felt that her legal advisers had had no particular enthusiasm in presenting her case or in contesting the case presented by the defendant. There were documents which ought to have been provided, such as the job description. There were records which Tesco could have provided, in her view, but seemed to have lost. The ones they provided were those that were helpful to them and not the ones that were helpful to her. One document that she felt was helpful to her was a statement of absence form referring to an absence from September until October 1995. It stated that the absence was due to an accident at work, and it had been countersigned by the manager. But this document, she felt, had been photocopied in such a way that the manager's signature was not apparent, so that the judge would not have taken as much account of it as he should have done. There are a variety of other similar complaints that she makes. Furthermore, because of her problems with her back, she was not herself able to remain at court throughout the hearing and thus not able to prompt her legal advisers in the way that she would have wished to do.
9. I have a huge amount of sympathy for how Mrs Bayley feels about all of this. The difficulty that I have, however, is two-fold. The first is that the Court of Appeal is not usually in a position to disagree with the trial judge's appreciation of the witnesses and the evidence that they gave - whom he believed and whom he did not believe. That is not a matter for this court. It is quite clear from his judgment that he believed the witnesses on behalf of the defendant, including Mr Priddle.
10. The second difficulty that I have is that this court cannot allow new evidence to be presented which could, with the exercise of reasonable care and diligence on the part of the claimant's legal advisers, have been put before the trial judge. It is quite clear that all the material which Mrs Bayley is complaining about is material which, if it was available, could have been obtained and presented to the judge. That is not a matter with which this court can interfere, although there may be other courses of action open to the claimant in an appropriate case. This means that the judge reached the conclusion that there had been no breach of the Regulations and no negligence on the material which was, as she acknowledges, before him, and that was the conclusion that he reached. In those circumstances, this court cannot interfere.
11. I therefore have to refuse permission to appeal. If I had thought that Mrs Bayley had a real prospect of success on appeal, I would have accepted the explanation for the delay. But as there is no real prospect of success on appeal, for the reasons I have tried to explain as briefly as I can, there is no point in my giving permission and there is no point in my extending time.
12. I am very sorry, but I have to refuse both applications.
Order: applications dismissed. (Order does not form part of approved Judgment)