EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lady Dorrian Lord McGhie	[2013] CSIH 1 PD1657/10 OPINION OF THE COURT delivered by LORD McGHIE in the RECLAIMING MOTION by SARA HOBBIN Pursuer & Reclaimer; against VERTICAL DESCENTS LTD Defenders &Respondents: _______________

Act: Blessing; Thompsons

Alt: Cowan, Solicitor Advocate; Simpson & Marwick

15 January 2013

Introduction

[1] The pursuer slipped and fell, banging her head, when she was taking part in a beginners canyoning course run by the defenders. The case before the Lord Ordinary came to turn on the assertion that the pursuer had been told or directed to stand on a particularly slippery rock from which she fell. The Lord Ordinary did not accept this. The pursuer now reclaims against his decision granting absolvitor.

Background
[2] The Lord Ordinary's findings, so far as necessary to set the background to the issues before us, can be summarised shortly. The pursuer and her then partner, Geraint Grace, were on holiday in Scotland. They had settled on the defenders' canyoning course to fill a spare day before a planned climb of Ben Nevis. Participants in canyoning descend canyons, streams, ravines and other water courses by means of sliding, jumping and scrambling. The couple made various enquiries about the activity. This included a visit to the defenders' website which stated that canyoning was a safe and enjoyable activity for people of all ages and levels of fitness. The pursuer had a particular concern about footwear as she did not wish her hiking boots to become wet before her proposed climb.

[3] When they signed up for the trip she was assured that her baseball boot style footwear was suitable. She signed a disclaimer form which included the following:

"I understand that;

Canyoning is physically and mentally intense and may require extreme exertion.

The possibility of injury to myself exists.

Canyons have varying terrain, may be slippery and have many trip hazards. I will get wet and cold".

[4] The participants were all provided with protective clothing which included a wet suit, a buoyancy aid and a helmet.

[5] The canyoning course took place in what the Lord Ordinary accepted was a narrow canyon or gorge. It had a fast flowing stream and a number of waterfalls and pools. The group consisted of the pursuer and her partner and another couple with two daughters, aged about 10 and 13. There were two instructors. To get to the start of the canyoning activity the party had to cross boggy ground. This stage took about 20 minutes. The pursuer's baseball boots were not suitable for this type of walking. She stumbled a few times. The lead instructor, Mr Reid, noticed that she did not move as easily or swiftly as other members of the group but thought that she was still capable of undertaking the descent.

[6] At the top of the water course Mr Reid gave a safety briefing. He explained that the conditions under foot would be slippy and that they should take care. He told them to keep their centre of gravity low. He showed them how they should move. He instructed that if necessary they should shuffle on their bottoms.

[7] The pursuer had problems during the course of the descent. She found it difficult to stay upright in the water and to keep her footing. When the party reached a point which required a jump of about 15 feet into water, the pursuer and one of the girls elected not to carry out the jump. Instead they walked down to a lower level. At some stage after this, the pursuer slipped on a submerged rock or boulder and fell banging her head. She was able to leave the stream at that point and was assisted down the hill back to her car by her partner and the instructor, Mr Brazendale. Mr Grace then drove her to Belford Hospital in Fort William. Mr Reid, the leading instructor, continued the canyoning activity with the others.

The issue of fault.

[8] The Lord Ordinary narrated that the pursuer relied on two grounds of fault. The first ground was based on the proposition that the instructor should have noticed that she was not coping with the activity during the course of ascent and should have arranged for her to be taken off the hill. The Lord Ordinary's decision in that respect is not challenged. The Lord Ordinary explained the second ground as follows:

"The second ground of fault on which Miss Hobbin founds is simple and straightforward. She states that Mr Reid pointed to the rock upon which she was standing immediately before her fall."

It was not suggested in the grounds of appeal that the Lord Ordinary had misunderstood the basis of the pursuer's case of fault. The Lord Ordinary clearly intended it to be understood that the basis of fault was that, either expressly or in so pointing, Mr Reid had directed the pursuer to stand on the specific rock. The Lord Ordinary explained why he accepted Mr Reid's denial that he had done so. He added that his decision was not confined to that precise rock and that he held that Mr Reid had not instructed the pursuer to stand on any large, flat semi-submerged rock that day. It was not disputed that if the pursuer had been directed to stand on the rock shown in the photograph and described by her as the one from which she fell, the defenders would have had to accept liability - possibly subject to questions of contributory negligence.

Grounds of appeal
[9] It was contended that the Lord Ordinary had misdirected himself and erred in fact and law in accepting the evidence of Graeme Reid. There were three explicit supporting grounds:

"(1) The Lord Ordinary erred in failing to make any comment upon the effect of the defenders' failure to put their case to either the pursuer or Geraint Grace.

(2) The Lord Ordinary erred when he seemed to accept that Graeme Reid may not have spoken to the defenders agents prior to the proof, when the fact that he had so spoken was the subject of agreement in a joint minute between parties;

(3) The Lord Ordinary erred by failing to give proper weight to the corroboration of the pursuer's version of events afforded by the evidence of Geraint Grace. In particular, the activity being undertaken at the time of the accident, the fact that the pursuer was standing on a rock, and the aftermath of the accident."

Pursuer's submission

[10] Mr Blessing supported these grounds by reference to details of the evidence in the full transcript which was before us. In summary, he submitted that the pursuer had said that, immediately prior to the accident, she was waiting her turn to descend a waterflume. She was standing on a rock. She had been directed to stand on that rock by one of the defenders' instructors. The next stage in the descent was a flume. Other members of the group were standing at the top of the flume, waiting their turn. She had been standing on the rock for somewhere between a minute and two minutes when she slipped and fell, sustaining injury. She had been back to the scene and was able to identify the rock. Photographs had been taken and were lodged as part of an expert report provided by Mr Barton. At no point was it ever put to her that she, along with the rest of the group, had already descended that flume and was making her way to the bank of the river.

[11] Mr Blessing suggested that this account was supported by Mr Grace's evidence which had been taken on commission prior to the proof. His evidence was that the pursuer slipped on a rock that she was standing on and that at the time of the accident they were at the top of a flume waiting on their turn to descend. At no point was it ever put to him that he, along with the rest of the group, had already descended the flume and was making his way to the bank of the river. This was contrasted with Mr Reid's evidence to the effect that the pursuer suffered her injury after they had descended a flume and were making their way out of the river to the bank and that the pursuer had been walking on flat bedrock at the time of the accident. His recollection of the locus of the accident had not been explored in any detail in evidence in chief but, in cross examination, when shown the photographs in the pursuer's expert's report, he had initially thought that the river shown was not part of the river on which the accident happened. In any event, he was quite clear in his evidence that the accident had not happened near the boulder identified by the pursuer as the locus.

[12] There had been no dispute that the pursuer should not have been told to stand on a rock such as the one identified by her. Accordingly the precise location of the accident was of critical importance. He submitted that the failure to put the contrary case to the witnesses meant that the weight to be given to the contradictory version should be treated as adversely affected; Currie v Clamps Exr. 2002 SLT 196 at paras [10] and [11]. He contended that the defenders' failure to put their case in this respect was fatal to their position.

[13] In any event, he submitted that it should be regarded as fatal in the present case where the Lord Ordinary had failed to comment on the fact that the pursuer had not had an opportunity to comment on the defenders' assertions. The Lord Ordinary had dealt with the issue as follows:

"[25] Unfortunately, the factual dispute about the accident site only emerged in the course of Mr Reid's evidence. It was not suggested during the cross-examination of Miss Hobbin or Mr Barton [the pursuer's safety expert] that it had taken place anywhere else. That may have been because according to Mr Reid, he had not spoken to his (sic) solicitors prior to the proof".

[14] Mr Blessing accepted that the Lord Ordinary had made express reference to the matter at the end of Mr Reid's evidence and that the pursuer's representatives had been given an opportunity to consider their position in light of that failure. He also accepted that it had been a major part of the submission he had made at the conclusion of the case. However, this, he submitted, was nothing to the point. It was the way the Lord Ordinary had addressed the problem in the course of reaching his decision which was critical. The Lord Ordinary had made only passing reference to the absence of challenge as to the accident site in the cross-examination of the pursuer and had made no mention of the absence of cross-examination of Mr Grace. Mr Blessing went on to found strongly on what he submitted was a plain error. The Lord Ordinary thought that an explanation for the failure to cross-examine might have been because Mr Reid had not spoken to the solicitors. Mr Blessing said that was wrong because there was a joint minute between the parties agreeing that Mr Reid had spoken to solicitors.

[15] In support of the third ground, Mr Blessing compared the evidence of the pursuer and Mr Grace, on the one hand, with Mr Reid, on the other, as to a variety of peripheral details. The contention was that the pursuer was supported by Mr Grace and that their account should be preferred on these matters. This was said to show that Mr Reid had not been a reliable witness.

Defenders' submission
[16] In response, the solicitor-advocate for the defenders stressed that questions of credibility, reliability and weight of evidence were pre-eminently matters for the judge who had had the advantage of seeing and hearing the witnesses give evidence; Thomas v Thomas 1947 SC (HL) 45 at p 54; Thomson v Kvaerner Govan 2004 SC (HL) 1 at para [17]. The defenders did not challenge the credibility of the pursuer or Mr Grace. The challenge was to reliability but, in that regard too, the trial judge had an advantage and an appellate court should be slow to interfere with a decision based on a view of the reliability of witnesses; Thomson v Kvaerner Govan at [20].

[17] He submitted that the weight to be attached to evidence for which no foundation had been laid in cross-examination was also pre-eminently a matter for the trial judge; Bryce v British Railways Board 1996 SLT 1378. In the present case it could not be said that, in accepting the evidence of Mr Reid in preference to that of the pursuer, the Lord Ordinary had plainly gone wrong or that he had not taken proper advantage of the opportunity which he had of seeing and hearing the witnesses. On the contrary, he had recognised the problem but had given clear and cogent grounds for the conclusion he reached. It was accepted that it had not been put to the pursuer in cross-examination that the locus of the accident was as subsequently described by the defenders' witnesses. But, as the Lord Ordinary had said, the precise location of where the accident happened was not a critical issue. It was important to have regard to the grounds of fault. The only relevant ground left was that the pursuer was instructed to stand on a rock. Although he accepted that there was a sense in which the precise rock was important because the rock complained of by the pursuer was, supposedly, of particular danger, the real issue was whether the pursuer had been instructed to stand on it. The Lord Ordinary had found that Mr Reid had not given any such instruction. He was well entitled to make that finding for the reasons identified by him. In any event, even the pursuer's own evidence did not support this ground of fault. Mr Cowan suggested that, properly read, her evidence was that she had been simply told to "stand over there"; she said she "would have clarified" where that was but she did not at any stage state that she was told to stand on the particular rock from which she fell. At no point was it put to Mr Reid that the pursuer had been instructed where to stand. In the circumstances and given the nature of the pursuer's case, it was of no significance that the defenders' evidence as to the precise location of the accident or the stage at which it had occurred in the canyoning activity had not been put to the pursuer or Mr Grace. The pursuer had been challenged on where she was standing at the time of the accident. She was asked if her recollection of where she and Mr Grace were standing was clear. Passages from the evidence, given on commission by Mr Grace, which conflicted with her account, were put to the pursuer. The criticism of the failure to put the defenders' case to Mr Grace was unfounded. He had been unable to identify the accident site. He had not suggested that the pursuer had been told to stand on any particular rock. There could be no question of the Lord Ordinary having failed to have regard to the circumstances in which the evidence emerged. That was clear from paragraph [25] of the opinion. It was a matter for the Lord Ordinary to judge what weight to attach to the evidence.

[18] Mr Cowan then addressed the issue of the Lord Ordinary's comments on the reason why the factual dispute might not have been put. He submitted that the fact that Mr Reid had provided a prior statement to the solicitors was of no relevance to the weight to be attached to his evidence, in all the circumstances of this case.

[19] Mr Cowan then dealt in detail with various passages of evidence, dealing with confusion or inconsistencies between the evidence of the pursuer and Mr Grace. On the critical issues relating to the accident site and the alleged fault of the defenders he contended that it was important to note that Mr Grace's evidence not only did not provide corroboration of the pursuer's account but contradicted it. More broadly there was no justification for the contention that Mr Reid's evidence was to be contrasted with any established reliable body of evidence.

[20] Mr Cowan went on to submit that, even if the matter was to be considered de novo on the basis of the printed evidence, the evidence of the defenders' witnesses should be preferred.

Discussion
[21] We have found the submissions for the defenders persuasive. We agree with the view of the Lord Ordinary that the precise location of the accident is not critical and consider that Mr Cowan correctly stressed that the real issue was that of fault. The grounds of appeal did not address that explicitly. It was simply an underlying assumption that if the evidence of Mr Reid was not to be accepted, the pursuer would be found to have fallen from the boulder she identified, and that the fault of the defenders would follow. The boulder identified by the pursuer was agreed to be a dangerous place to stand and, if Mr Reid had directed her to do so, it was not disputed that the defenders would have had to accept liability - subject to any issue of contributory negligence. It was that ground of fault which the Lord Ordinary addressed: [34]. The substantive ground of appeal was, essentially, that the Lord Ordinary was not entitled to accept the evidence of Mr Reid. We simply note that it would not necessarily follow that he was bound to find that the pursuer had established her case.

[22] The first of the three supporting grounds of appeal was that the Lord Ordinary had erred in failing to make any comment upon the effect of the defenders' failure to put their case to either the pursuer or Geraint Grace. This was elaborated in the argument to make the substantive point that, in failing to put their case, they created a position where it was impossible for the judge to weigh the relative merits of the different accounts of the accident.

[23] As we have seen, the Lord Ordinary did not ignore the point. He addressed the matter at paragraph [25] of his Opinion which we have quoted in our paragraph [13] above. He explained why he found Mr Reid to be a credible and reliable witness: [22] and [35]. He accepted Mr Reid's evidence. He said that:

"He struck me as a careful and responsible individual. I accepted his account that he would never direct someone to stand and remain on the rock identified by Miss Hobbin".

The Lord Ordinary made express reference to an aspect of Mr Reid's demeanour when giving his evidence. The witness had shown his relief, reflecting his apparent realisation that the pursuer had got it wrong: [35]. The Lord Ordinary explained why he did not find the pursuer to be reliable in relation to the location. Unlike Mr Reid she was not familiar with the locus; she was only at the accident site for a short time; she was tired and the topography of the canyon was very similar at different parts: [24]. He gave some further reasons for preferring Mr Reid. In relation to the pursuer, he said:

"Although she was trying her best to give an accurate account of events that day, Miss Hobbin often replied by stating that she had no recollection of particular matters. For example, she could not remember anything about the content of the safety briefing. She did not mention that she was wearing a helmet for the activity. In those circumstances, I did not find her account reliable": [36].

In short, the judge was able to give an assessment of reliability and set out clearly his reasons for his conclusion.

[24] Despite the wide terms of the stated ground of appeal, it is clear that the defenders put many aspects of their case to the pursuer. The explicit point identified as the case that was not put related to the stage at which the accident took place. It was said that it was not put that the pursuer along with the rest of the group had already descended a flume and was making her way to the bank of the river. More broadly, the point was addressed as a criticism relating to the defenders' failure to challenge the pursuer as to what the group as a whole was doing when she slipped. It was in that regard that the defenders were said to have failed to put their case. It was not expressly contended that the defenders had failed to put to the pursuer that Mr Reid denied that he had directed her to stand on the rock from which she fell. The defenders' position on this point was implicit in the way the cross-examination proceeded and in the contrast made with the passages from Mr Grace's evidence which were put to the pursuer.

[25] In a substantive sense, the defenders' "case", in answer to the express claims in the pursuer's pleadings, was that her footwear was adequate and that they had exercised proper supervision of the activity as a whole. Nothing now turns directly on these issues but they provide the context in which it was not put to the pursuer or her companion that their evidence as to the stage they were about to tackle was mistaken. At the time of her cross-examination there was nothing to suggest that this was of any importance in relation to any issue of fault.

[26] It is unnecessary for us to discuss the authorities bearing on failure to cross- examine on an issue in a civil case. We are satisfied that it is now clear that failure to put matters to a prior witness is not necessarily a fatal flaw. What is to be made of it is always a question of circumstances. No doubt it is a fact which a court will take into account in assessing the weight to be given to the evidence. There may be cases where such a failure does make it difficult for a judge to assess the reliability of competing accounts on a particular topic. But circumstances vary greatly. The judge might be able to decide the case on its merits without requiring to reach a concluded view of the reliability of witnesses on any specific matter. In other cases, the fact that the particularly significant piece of evidence had not been put to a prior witness might go directly to the credibility, rather than simply to reliability, of the later witness. However, it must be recognised that there will often be little to justify any inference adverse to the credibility or reliability of the second witness. Witnesses have no direct role in the conduct of cross-examination. The problem is more commonly one of prejudice to the party whose witness has not had a chance to comment. The degree of prejudice will turn on the materiality of the factual evidence in question and on whether it is something the prior witness might have been expected to have been able to deal with. If the first witness is not recalled the judge will simply have to assess the issues of reliability without the benefit of having heard that witness comment on the apparent conflict.

[27] In the present case, the Lord Ordinary expressly drew counsel's attention to the problem at the conclusion on Mr Reid's evidence: App I(b) pp 249 and 250. He plainly recognised that this was a matter which the pursuer's legal advisors might need time to consider. Mr Blessing was able to say that he had indeed considered it and was content to treat it as a problem for the defenders. He explained to us that this decision was partly based on the practical consideration that the pursuer had already returned to England. There is no criticism of his decision. Practical issues cannot be ignored. But, unless the nature of the evidence given by Mr Reid and the way in which it was given, could, in itself, cast doubt on the credibility or reliability of Mr Reid, we think it misleading to see the situation as presenting any particular problem for the defenders.

[28] Mr Cowan, in making the point that failure to cross-examine did not necessarily imply any criticism of the second witness, explained that such a failure might have been due to the fault of the defenders' legal representatives. If failure to cross-examine is to be explained by reference to an oversight by the legal representatives, we would expect that to be disclosed as soon as the matter becomes an issue. The pursuer's agents should be able to consider their position against a proper understanding of the background. The question of liability for any additional expense incurred in recalling a witness may become an issue. It might be expected to be resolved by agreement where there has been a failure by the lawyers. We understand that in the present case there was, in fact, a discussion between parties. It led to an addition to the joint minute, to which we return below.

[29] Much will turn on the circumstances of each case and in the present case it is enough to say that we are not persuaded that the failure to put the conflicting evidence about what precisely the party was doing at the time of the accident meant that the Lord Ordinary was obliged to give any special weight to the pursuer's evidence as against that of Mr Reid. The Lord Ordinary did not ignore the problem. The weight he gave to the evidence was a matter for him. We are satisfied, for the reasons given above, that he was correct to hold that the dispute over precise location was not a critical issue. But, in any event, we are satisfied that he approached the whole evidence bearing on the issue in the correct way. He recognised that there was a problem but resolved it by reference to various factors tending to support Mr Reid as more likely to be reliable on the particular issue.

[30] The second ground of appeal was based on an assertion that the Lord Ordinary should not have accepted that Mr Reid had not spoken to solicitors when "the fact that he had so spoken" was subject of agreement by joint minute. This is, indeed, an example of the type of material going to credibility of the testifying witness, to which we referred above. If Mr Reid could reasonably have been expected to have told the solicitors about the precise activities on which the group was engaged when the pursuer fell, the fact that he denied talking to them might have been significant. We note that, in fact, Mr Reid had gone further than saying he had not "spoken" to solicitors. When it was put to him, in cross-examination, that both Geraint Grace and the pursuer said that "they were engaged in the task of trying to go down a flume" at the time of the accident, he said they were mistaken. When further similar detail was put he said that this was not his recollection. He was then asked whether he had been asked about this prior to the court case and then, specifically: "Have you been asked about the site where the accident took place prior to this hearing". Answer: "No. I've...No". Question: "You've had no contact with lawyers whatsoever?" Answer: "Just the time to be here" Question: "So they don't know what you were going to say today?". Answer: "No. I've been back to the site. I've had a look at it. I've run things through in my head to make sure I was familiar with the situation, with the environment it happened in through refreshing my mind and I don't believe this to be it." It was put to him that one or other side had to be making things up and he responded: "Or be mistaken. I mean, I know this canyon well. I don't know how many times I've been at it and looked at it and run the situation over in my head again and I can only say that they have made an honest mistake." It may be noted that it was not put to him in cross-examination that he had directed the pursuer to stand on a particular stone. It was not suggested to us that, at the stage when this passage of evidence emerged, there had been anything to alert him to the fact that the activity of being about to go down a flume was in any way important to any issue of fault. There were many different features of the stream which might have been regarded as flumes or waterfalls. There was nothing to suggest that the accident had been caused by any special features of flumes, waterfalls or jumps. It must also be observed that the joint minute did not agree that he had "spoken to" solicitors. It was simply agreed that he had "provided a statement to the defenders' agents". It would not have been at all surprising if in such statement, however given, he had not attached any significance to the precise stage the group were about to tackle. In short, although we accept that this ground of appeal addresses a relevant issue we are not satisfied that it is well founded in fact. There is nothing in the circumstances of the present case to show that the failure to challenge the pursuer as to the precise stage at which the accident happened cast any doubt on the credibility of Mr Reid.

[31] The third ground of appeal is addressed to wider issues of credibility and reliability. It was contended that, on a range of issues, the evidence of the pursuer and Mr Grace was to be contrasted with that of Mr Reid. This, it was said, should have led to the pursuer's evidence on the critical issues being preferred to that of Mr Reid. It is sufficient to say that we are not persuaded that there was any clearly established pattern of reliable evidence deriving from the pursuer and Mr Grace to set against that of Mr Reid. There was a significant contrast between the evidence of the pursuer and Mr Grace in relation to the precise circumstances of the accident itself.

[32] The pursuer's account was less than clear although we accept it as being on the broad lines of Mr Blessing's summary at paragraph [10] above. Mr Grace, on the other hand, said: "She was just in front of me and there was no other possible route you could take going down to the next flume which was there, and she slipped." He was then asked: "Was she standing at the time?" He answered:

"She was standing, quite upright, looking to the next part to get down ...and it was clear to see there was no way really you could opt for a clear route. It was all the same, so just everybody followed the same path. She wasn't the front person but she was following the person in front and then she fell over."

He was asked: "Were there instructors at this point". He said: "I can't remember, I think they have already gone down it". In short, the substance of the evidence of Mr Grace was that, far from the pursuer being directed on to a special boulder to wait to the side, she was walking on the same material and on the same line as everyone else because there was no alternative: App I(c) 16.

[33] For completeness, we should add that Mr Blessing advanced the proposition that even if Mr Reid had not directed the pursuer to stand on a particular rock, he should have seen the pursuer standing on the dangerous rock and told her to get off. But if the pursuer is not to be accepted as reliable in relation to having been directed to stand on the rock there is no other evidence to show that the instructors should have seen her on it in time to do anything. In any event, it is not clear that anything they might have done would have prevented the accident.

[34] Further inconsistency between the evidence of the pursuer and Mr Grace can be illustrated shortly by reference to the accounts of events after the accident. Mr Blessing suggested that the pursuer and Mr Grace had both spoken of a loss of consciousness which Mr Reid had not spoken to. However, the pursuer did not volunteer any suggestion that she was unconscious. She was asked by Mr Blessing whether she thought that she had lost consciousness, and she said "maybe for a few seconds, I'm not sure". There is no dispute that she was wearing an appropriate helmet and we well understand why the Lord Ordinary commented on the absence of any mention of it by the pursuer. She made no reference to it either as having protected her from more serious injury or by way of concern that it had failed to offer better protection. That is a little surprising. The pursuer also said that after the fall: "They helped me up and then we went to a dry area and then navigated our way down the hill again". The instructor went all the way down the hill to car park with them: App I (a) 43 and 90. This hardly supports Mr Grace's evidence that he got her off the mountain by picking her up and carrying her down and that the instructor only came part of the way: App I(c) 20. The conflicts in the evidence as to what happened before the accident are readily explained by the different perspectives of the pursuer and her companion compared with that of Mr Reid. The conflicts raise no doubt as to credibility. But we do not accept that they provide any guide to the reliability of accounts of the accident itself. The criticism of the Lord Ordinary in the third ground is not made out.

Conclusion

[35] We see no justification for disturbing the decision of Lord Ordinary. Even if we place no special reliance upon the advantage he had in seeing and hearing the witnesses, we are satisfied from our consideration of the relevant parts of the transcript that there is no basis for any real doubt as to the soundness of the Lord Ordinary's conclusion. For the reasons given above, the reclaiming motion fails and we adhere to interlocutor of the Lord Ordinary.