Merlin Entertainments PLC v Emilia Idziak

On behalf of Merlin, Mr Lambert’s principal submission, and the first ground of appeal, was that the recorder had failed to engage with Merlin’s central arguments and had not therefore given any or any adequate reasons on breach of duty. He said that there was no discussion or analysis of four points, but he emphasised the first two.

First, there was no discussion or analysis of Merlin’s central submission that there was not a genuine overspeed. The recorder had accepted the central tenet of Merlin’s argument that the speed sensors had been moved. Logically, that should have led to the finding that there was no true overspeed but only a true computer error. Thus, reconciling this with a finding for the claimant required an explanation. (Ground 1(a))

Secondly, there was no discussion or analysis of contemporaneous documentary evidence which proved that, to the extent the roller-coaster “oversped”, this occurred on a different car; not the claimant’s car. (Ground 1(b))

Thirdly, there was no discussion or analysis of how much faster the claimant’s car was travelling and how this was technically possible given Marlin’s override system, which shut off a car as soon as it is even fractionally over the default speeds. (Ground 1(c))

Fourthly, there was no discussion or analysis of the air line pipe as an alternative cause of the claimant’s alleged accident. This would be unrelated to overspeed and the previous repairs. (Ground 1(d))

In the alternative, as ground 2, Mr Lambert put forward essentially the same points as mistakes of fact which the recorder had made.

Ground 3 concerned causation. It was contended that the recorder did not give reasons as to whether, and if so why the overspeed caused injury, but the “normal” speed and jolts of the ride would not have done so.

The claimant’s response to the appeal was initially contained in a skeleton argument written by trial counsel, Mr Wheatley. He was unavailable for the appeal, and Mr Simon King then submitted a short supplementary skeleton. Whilst adopting and relying on the points made in Mr Wheatley’s skeleton, it is fair to say that Mr King’s argument was rather different or at least involved a considerable refinement of the case.

In the original skeleton argument, the first 8 pages dealt with the case advanced and the evidence at trial, before turning to the specific grounds of appeal. In those opening 8 pages, it was submitted (consistently with the case previously advanced) that the claimant had travelled at enormous speed in the rollercoaster car, and she and her son had been thrown around. The car then stopped abruptly. The usual speed of the ride and any additional speed caused by the fault were “central matters for determination”. Reference was made to the evidence of the claimant and Ms Cetin that the ride had behaved unusually and travelled too fast. The emergency stop was a surprise. Reference was made to a central part of Mr Burton’s witness statement being the suggestion that the guests were not exposed to excessive speeds, and that even in a ‘car overspeed’ situation the car would not be travelling significantly quicker. But it was submitted that the oral evidence of Mr Burton in relation to speed, referred to by the recorder in paragraph [19] of her judgment, had “removed the central plank” of Merlin’s position, and that this “cannot be underestimated”. It was argued that, in consequence, it “meant that Mr Burton had to concede that he could not challenge the Respondent’s evidence in relation to the speeds she had experienced on the day in question”. It was submitted that none of the documents relied upon by Merlin, or answers given by the claimant or Ms Cetin, detracted “from the [claimant’s] case that the Dragon Ride malfunctioned and caused the cars to travel too quickly”.

It will be apparent from the above that the focus of the claimant’s case, both at trial and in these pages of the grounds of appeal, was that the cars were indeed travelling too quickly. Under the heading “Conclusions of the Recorder”, it was submitted that:

“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”.

Each of the grounds of appeal was then addressed. In relation to ground 1 (a) (the argument that there was no genuine overspeed, as opposed to a computer error), it was submitted that Merlin had failed to amend its defence “or withdraw the evidence of Mr Burton which clearly suggested the contrary, namely there had been a physical increase in speed”. The overspeed had resulted in a physical increase in speed (rather than the computer merely thinking one had occurred). It was submitted that Mr Burton had given evidence that the overspeed caused the cars to increase in speed.

In relation to ground 1 (b) (the argument that it was not proved that the claimant’s car 4 oversped), various factual points were raised. None of these points were in fact made in the recorder’s judgment, to which there was no reference in this part of the written argument.

In relation to ground 1 (c) (the argument relating to how much faster the claimant’s car was travelling), it was submitted that this was an artificial point. There was again no reference to any part of the recorder’s judgment.

In relation to ground 1 (d), (the argument on causation in relation to the air line), again various factual points were made, but there was no reference to any part of the recorder’s judgment.

In the remainder of the written argument on the liability issues, the claimant reiterated that it was her case that her car had travelled at excessive speeds. It was also submitted that the recorder “did not make a finding that the sensors had been moved such that there was no overspeed”. This was a contortion of logic which Merlin sought to impose on the judgment. It was accepted that the claimant had a medical history which included back pain, but reference was made to her evidence that this had never manifested in back pain when travelling on a ride.

The position advanced in Mr King’s short supplemental skeleton argument was rather different. This focused on the emergency stop. It was submitted that:

“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”.

In his oral submissions, Mr King submitted that justice in the county court can be a bit rough and ready. The recorder in the present case was not helped by the divergence between Merlin’s pleaded case (which suggested an actual increase in speed) and the case advanced at trial, namely that there was no real increase in speed. He submitted, as reflected in his supplemental skeleton, that this did not actually matter. The factual position was that the ride was not functioning as it should have been, and this led to the emergency stop. The vice was not whether the car went slightly faster than it should have done, or whether sensors were in the right place. The vice was that Merlin allowed the situation to continue, and then allowed passengers to be subject to deceleration forces in an emergency stop. He submitted that the recorder was alive to this point, as can be seen from paragraph [21] of her judgment. He accepted that there was, as he put it, a “lack of clarity in analysis” in paragraph [23] of the judgment. But this did not matter, because of what the recorder said in paragraph [21]. The important point is that the claimant was entitled not to be exposed to forces involved in deceleration. This was the essential point and was the essence of what the recorder decided, albeit that she did not express it that way. It was, however, an unanswerable point, on the evidence before the court. Accordingly, there should be no retrial, even if there was some flaw in the way in which the recorder expressed herself.

Mr Lambert’s skeleton argument addressed in detail the case-law concerning the need for adequate reasons in a judgment. There was no dispute as to the relevant legal principles in that regard.

In Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, there was a failure by the judge to give reasons for his decision to prefer the evidence of the defendants’ experts over that of the claimant’s. Henry LJ, giving the judgment of the court, said (at 381 to 382) in relation to the duty of a judge to give 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.”

This passage was cited by the Court of Appeal in English v Emery Reinbold & Strick Ltd [2002] EWCA Civ 605, where the court said that:

“[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.

…

[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.

…

[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.

…

[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.”

In Baird v Thurrock Borough Council [2005] EWCA Civ 1499, the Court of Appeal was dealing with an appeal in a personal injuries action. The claimant suffered injury when working on a dustcart. Two fellow employees, who had not seen the accident, gave evidence as to the position of a wheelie bin immediately after the claimant had suffered injury. The judge accepted the evidence of the claimant that he was hit by the right-hand side wheelie bin as it descended. The evidence of two fellow employees (Ms Garwood and Ms Mulqueen) was that, when they found the claimant injured, the bin had been in a raised position, thus suggesting that the claimant’s evidence was wrong.

The court said (at [17]) that a judge is entitled to express the reasons for his decision briefly, but the reasons must be sufficient to explain why he reached that decision. It concluded that the reasons in that case did not meet the test of adequacy. The court concluded at [18] that the judge had never grappled with the need to explain why it was that he rejected the evidence of the two employees, and also that the judge had not understood the importance of the evidence which they had given. Gage LJ said this in relation to his conclusion that the judge’s reasons were not adequate:

“[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.”

The court set aside the judgment and ordered a retrial, and declined a suggestion that it should decide the case on the transcript of the evidence of the witnesses: see [19].

In Weymont v Place [2015] EWCA Civ 289 Patten LJ said:

“[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].

…

[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.”

In Simetra v Ikon [2019] EWCA Civ 1413 para [46], Males LJ made several observations of general application common to all appeals.

“[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.”

I consider that the recorder failed adequately to engage with the arguments which had been advanced on Merlin’s behalf, and that it is not possible to discern the basis on which she rejected the key aspects of Merlin’s case. The result is that the judgment is not coherent and does not adequately explain why Merlin’s case failed and the claimant’s case succeeded. As explained below, the most important point is Ground 1 (a), but I also accept the points made in 1 (b) and 1 (d). I do not need to discuss Ground 1 (c), since it does not arise in view of Grounds 1 (a) and 1 (b).

Before addressing the detail of the points raised on Merlin’s behalf, I will say something about the recorder’s approach to giving judgment in this case. Judges give “ex tempore” judgments all the time, and there is nothing in principle wrong with that: the system could not properly function if every decision was reserved. However, this was not a straightforward case in which to give a judgment immediately after closing arguments had concluded, without any period of reflection at all. There were a large number of arguments advanced in closing, both on liability and quantum. The liability arguments were made in the context of evidence of a technical nature as to how the systems at the ride operated. Mr Burton had given evidence for some time, and a number of different matters were explored. As well as Mr Burton’s evidence, there was technical documentation before the court, such as the 2005 report prepared by safety consultants, and on which Merlin was placing reliance.

In my view, on the liability issues alone, this case called for a period of reflection so that the recorder could properly understand the interplay between the closing arguments that she had only just heard and the evidence which she had heard and read, in particular as to the ride systems. The recorder might have been able to give an ex tempore judgment later that day: Mr Lambert explained that the afternoon was available for the hearing, but was not in the event used. Even this might not have been easy, and it would probably have required the recorder to have used the written opening submissions, and her knowledge of the evidence, in order to prepare a draft judgment in advance of closing arguments, and then to reflect on whether the closing arguments raised any new points that she needed to address. However, to give an ex tempore judgment immediately following closing submissions, and without any period of reflection at all, was in my view challenging and ambitious.

It is also apparent that the recorder was not well-prepared for the judgment on which she embarked. For example, one of the points advanced by Mr Lambert, based upon the evidence of Mr Burton, was that the cause of the stoppage at 14.20 was not the “overspeed”, but rather was the problem in the air line which required an extended period of repair. There was a potentially important causation point here: since, as Mr Lambert submitted, the air line issue was unrelated to the overspeeds that had been recorded earlier that day, and there was no case advanced that Merlin was negligent in relation to the air line.

The recorder’s judgment refers to the air line only briefly, and with no discussion at all of Mr Lambert’s argument. She says:

“There was also a further and, I think, unrelated problem, block six airline blown, which happened, I believe, in the morning”.

The statement that the air line problem had happened in the morning was wrong according to the DID and Mr Burton’s evidence, and Mr King did not seek to suggest otherwise in his submissions on appeal. If Mr Burton’s evidence was accepted, then this was a problem which occurred in the afternoon. If the recorder was rejecting that evidence, despite her view that Mr Burton was honest candid and impressive, then she gave no reasons for doing so. Indeed, it is difficult to see how she could have rejected that evidence, in circumstances where Mr Burton was cross-examined on the basis that part of the cause of the incident at 14.20 was that the air line had blown. The fact that the recorder mistakenly understood the problem to have occurred in the morning, rather than in the afternoon at around the time of the incident relied upon by the claimant, explains why she did not address the causation argument that Mr Lambert had advanced in the course of his closing submissions, but it obviously does not excuse her failure to do so.

The recorder also said in this passage that the air line problem was “unrelated”. In one sense it was unrelated: Mr Burton’s evidence was that it was not related to the “overspeed” problem. In another sense, however, it was related: Mr Burton said that it was related to the stoppage experienced by the claimant. His evidence was that this was the main contributing factor to the ride having stopped the cars on the ride at 14.20. This became the foundation of an argument on causation advanced by Mr Lambert. The recorder does not appear to have understood the potential significance of the point.

A second example of lack of preparedness is the recorder’s approach to the quantum issues. These had been argued out in the course of the submissions that morning. Ordinarily, they would be addressed in full in a judgment. However, they were not addressed in the judgment given by the recorder. Instead, she said [33] that “then we come to special damages, I may just need some assistance on these figures”. There then followed a dialogue in which various points were made, and the recorder gave decisions, in some cases without reasons, in the course of the dialogue.

Against this background, it is perhaps unsurprising that there are significant problems with the recorder’s judgment on liability issues.

The first significant problem, addressed in ground 1 (a) of the grounds of appeal, concerns the issue of whether there was or was not a genuine overspeed at all, as opposed to a computer error. In that regard, the recorder clearly accepted the evidence of Mr Burton as to the cause of the overspeed “faults” that were reported on three occasions on the day in question. She was clearly impressed by Mr Burton as a witness, and referred at [20] to how the “real problem was not discovered until … the following day”. The problem which Mr Burton described, and to which the recorder was referring, was that the sensors had been moved so that they were closer together than they should have been.

However, the recorder did not then discuss or analyse (and in my view did not appreciate) the consequences of this important finding, even though this had been spelt out clearly in the written and oral submissions of Mr Lambert for Merlin. The significant point is that this movement of the sensors, so that they were in the wrong place, made it seem to the computer that a car was travelling faster than it should have been; because, as Mr Burton had explained, the computer was reacting to impulses received from the sensors and these impulses were too close together. However, it followed, logically, that the car was not actually going any faster. Since the recorder had accepted Mr Burton’s evidence as to the cause of the problem, there is no apparent basis on which she could then have rejected the point which logically followed. And if she was indeed rejecting it, there is no explanation as to why she was doing so.

This logical conclusion, that the car was not actually travelling any faster, had significant implications for the case advanced by the claimant, and which Merlin was meeting at trial. The claimant’s case, advanced in the Particulars of Claim and then in the claimant’s evidence and Mr Wheatley’s oral closing argument, was that the car was going much more quickly than the claimant expected, and more quickly than it should have been. Allied to this, as discussed below, was the argument that there had then been a rapid deceleration. The recorder accepted the case as to a “significant overspeed on this particular day” [23], and accepted the evidence of the claimant and her friend that the overspeed was “unpleasant and frightening and that the deceleration was accordingly quite significant; it was not simply a minor matter”. The recorder then said [25] that the ride was 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”. In paragraph [27], when discussing quantum, the recorder referred to “a more serious deceleration”.

However, once Mr Burton’s technical explanation of the problem was accepted, the argument that the claimant’s car was actually going more quickly, and outside the design tolerances referred to by the recorder, was no longer sustainable. This was Mr Lambert’s first point put before the recorder in his oral closing: there was no “actual” overspeed, but simply something which was perceived by the computer as an overspeed. This was therefore destructive of the claimant’s case that the car had been running much faster than it should have been, resulting in the unpleasant and frightening experience which she described in her evidence.

The recorder’s judgment does not address this point. Her approach was to accept the evidence of the claimant and her friend as to their perception of the speed of the ride, and that it was not running as it should have done. The claimant’s evidence was based upon her experience at other theme parks and was, on any view, impressionistic. She was also a witness that the recorder considered to have given inaccurate evidence in relation to the length of time before she was evacuated, and indeed, on some aspects of quantum, to have exaggerated her case. The evidence given and called by the claimant as to the speed of the ride therefore needed to be considered in the light of Merlin’s evidence that the ride was not actually running any faster. There is, however, no explanation as to how the recorder’s acceptance of Mr Burton’s evidence as to the cause of the problem - placement of the sensors too close together, meaning that there was no actual overspeed – could be reconciled with the claimant’s evidence as to the car going far too fast and in a manner in which it should not have been operating. Furthermore, once the recorder had accepted the reasons given by Mr Burton for the “overspeed”, there was nothing to suggest that the car was operating outside the tolerances to which the recorder referred in paragraph [25].

I do not accept Mr King’s submission that paragraph [23] of the judgment was no more than a “lack of clarity” in the reasoning of the recorder. In my view, it shows that a fundamental part of her reasoning was that there was an actual overspeed on the day in question, and that this was unpleasant and frightening. She made a similar point in paragraph [25], as to the ride being designed to travel within specified tolerances, and that if those tolerances were exceeded, then passengers were exposed to a risk.

It is no coincidence that this was a fundamental part of her reasoning, because an actual and significant overspeed was a central part of the case that was being advanced by the claimant at trial. This is apparent from various documents, including the Particulars of Claim and the transcript of the oral closing. It is, however, sufficient to refer to the claimant’s skeleton argument on the appeal, described above. For example, in paragraph 6 of that skeleton, Mr Wheatley had submitted that the “question of the usual speed of the ride and any additional speed caused by the fault were central matters for determination”. Paragraph 11.9 referred to the claimant’s case that the ride malfunctioned “and caused the cars to travel too quickly”. Paragraph 15 referred to “excessively high speeds on the ride”, and argued that the “main plank of the Defence, namely that any overspeed would be minimal and unlikely to cause harm, had disappeared”.

The true position is that once Mr Burton’s evidence was accepted, the “main plank of the defence” had not disappeared. On the contrary, the defence that there was no actual overspeed had succeeded, and it was the claimant’s case on overspeed which had disappeared. This argument, and related arguments, advanced in Mr Wheatley’s skeleton argument are therefore erroneous. In my view, the skeleton argument fails (as did the recorder in her judgment) to appreciate the significance of the finding which the recorder made that the real problem was that the sensors had been moved closer together than they should have been.

Subject to Mr King’s argument raised in his supplemental skeleton, this conclusion on Ground 1 (a) is a sufficient ground for allowing the appeal and ordering a retrial. In short, on the recorder’s findings, Merlin had established that there was no actual overspeed. The recorder’s judgment does not explain how or why, in those circumstances, the claim could succeed. The present case for a retrial is in my view even stronger than the successful appellant’s case in Baird. In that case, the judge had failed to deal properly with the evidence of the two women employees, including a failure to explain on what basis their evidence was untruthful or inaccurate. In the present case, the recorder positively accepted the evidence of Mr Burton as to the cause of the problem, and then reached a conclusion as to the speed of the car which cannot be reconciled with the acceptance of that evidence. Before considering Mr King’s supplemental skeleton point, I will address some other arguments raised as well as the other grounds of appeal to the extent that it is necessary to do so.

I do not accept Mr King’s submission that any problems with the recorder’s analysis, and any “lack of clarity” in paragraph [23], was a consequence of a difference between Merlin’s pleaded case, and the evidence adduced by Merlin at trial. At trial, Mr Wheatley made it clear that he was not taking a pleading point, and the recorder did not decide the case on the basis of a pleading point. The point that the overspeed “fault” occurred due to two sensors being too close together was made long before the trial, in Mr Burton’s statement served in November 2020. It was then a central part of the case advanced at trial by Mr Lambert. For example, paragraph 11 of his pre-trial skeleton argument said:

“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”.

Even if there was some departure from the way in which the case had originally been pleaded, the substance of Merlin’s argument was clear and, in the absence of a pleading objection, it needed to be addressed by the recorder. It is not unusual for cases to depart somewhat, and without objection, from a pleaded case. For example, the first matters particularised in paragraph 8 of the Particulars of Claim were allegations that the ride was operated with faulty brakes, and brakes that were prone to fail. Mr Lambert spent some time addressing this point, but it seems to have been implicitly dropped by the claimant and does not feature in the recorder’s judgment. A pleading objection would have also have been a very unattractive point in circumstances where the claimant was permitted to call Ms Cetin without giving appropriate advance notice.

Ground 1 (b) of the grounds of appeal concerns the recorder’s failure to deal with Merlin’s argument that the “overspeed” was recorded as having occurred on a different car, and not the one in which the claimant was sitting. Mr Lambert’s point was that the documentary evidence in the DID did not refer to the claimant’s car, but rather (at 14.20) to another car. Accordingly, there was no evidence that the claimant’s car itself was going at a speed which the computer picked up as being too fast. Merlin could therefore say that here was further evidence, contradictory to the claimant’s evidence, that her car was not actually overspeeding. The recorder did not deal with this point in her judgment.

Mr King submitted that this was not an important point, because the evidence showed that an overspeeding problem in a different car, ahead of the claimant’s car, would have a knock-on and indirect effect on the claimant’s car; in that the system would cause both to come to a halt. That is true, but it does not deal with the substance of Merlin’s point; that the fact that no overspeeding was detected on the claimant’s car contradicted her evidence as to the ride operating, as far as she was concerned, significantly faster than it should have been.

Accordingly, there was here as well a failure by the recorder to engage with an important point which was made by Merlin. However, once ground 1 (a) is accepted, with the conclusion that there was no actual overspeed but only an overspeed detected by the computer because sensors were too close together, ground 1 (b) does not add materially to Merlin’s case. However, the recorder should have addressed this point in her judgment, and did not do so.

I will deal with ground 1 (c) briefly. It is concerned with the question of the extent to which the claimant’s car was travelling faster than it should have done, if it was travelling faster at all. Again, it seems to me that the important point is ground 1 (a), and the conclusion that logically flowed from the recorder’s acceptance of Mr Burton’s evidence as to the cause of the problem: i.e. that the car was not actually travelling faster than it should have been. Once that conclusion has been reached, any argument concerning the extent to which it was travelling faster does not arise. Thus, since Merlin succeeds on grounds 1 (a) and (b), ground 1 (c) does not need to be addressed.

Ground 1 (d) does raise a separate point. It concerns the air line, and whether this was the reason for the stoppage at 14.20 which affected the claimant. This was not a point which had been pleaded by Merlin. Some points on the air line had been made in Mr Lambert’s written argument in advance of trial: one point being that no case of negligence was advanced in relation to the air line. The point on the air line assumed significance as a result of the way in which Mr Burton was cross-examined and the answers which he gave.

The argument which Mr Lambert advanced in closing – without any objection being taken on the basis that it had not been pleaded – had its origin in questions which Mr Wheatley asked Mr Burton in cross-examination. Mr Wheatley put a point on causation to Mr Burton:

“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”.

This answer, and the evidence which followed, gave rise to Mr Lambert’s causation argument. He submitted that the reason for the ride stopping that afternoon was the air line problem, rather than the “overspeed” issue. If so, then the claimant could not show any causal connection between the “overspeed” and the reason that the claimant’s car stopped. This was significant because if the cause of the stop was the air line, there was no case of negligence which posited that Merlin should have identified this as a problem in advance.

The recorder in her judgment failed to address this point at all. I have already discussed the reason that she did not do so: she misunderstood the facts, and does not seem to have understood the point. In my view, the point should have been addressed, and Merlin can fairly say that the judgment does not enable them to know why they lost on this point. Mr King submitted that there were factual answers to the point: in particular that the DID indicates that the overspeed was the reason for the stoppage. I can see that there are potential factual answers to the argument, including that it is not clear how Mr Burton, who was not involved on the afternoon of the relevant day, reached the view that the air line was the cause of the problem. However, the recorder needed to deal with the point and make relevant factual findings, and the court is not in a position on appeal to reach factual conclusions as to whether the evidence of an honest and candid witness should, on this issue, be rejected.

Accordingly, and subject to the argument made in Mr King’s supplemental skeleton and addressed below, I consider that the appeal succeeds on the basis of Grounds 1 (a) and (allied to it) Ground 1 (b). It also succeeds on Ground 1 (d). Ground 1 (c) does not arise. It is not in my view necessary to consider either Ground 2 or Ground 3 as separate points.

I therefore turn to the argument advanced in Mr King’s supplemental skeleton. The argument, summarised above, is that the critical feature of the claimant’s case was that she suffered injury as a result of deceleration. It did not therefore matter whether the emergency stop happened because the car was travelling too fast, or because the wrong position of sensors made the computer think that the car was travelling too fast for safety. The important point was that the ride shut down in an emergency stop, causing a deceleration injury to the claimant. Mr King submitted that the recorder had understood this point, as can be seen in paragraph [21] of her judgment. He also submitted that even if this was not the basis of the recorder’s decision, the argument was unanswerable on the evidence before the court, and therefore the court should not order a retrial but allow the judgment to stand.

I consider that the first question is whether this was the basis of the recorder’s judgment. In my view, it was not. I can well understand the possibility of advancing a case of negligence along the lines set out in Mr King’s supplemental skeleton. Indeed, there is a firm starting point, in the recorder’s findings, for the argument that there was negligence in the way in which the sensors were wrongly moved in the first place, and in Merlin’s failure until the following day, to discover the problem. The claimant was therefore in a position, subject to the air line causation question, to argue that the stoppage of the ride was brought about by the negligence of Merlin’s employees. This might lead to a (probably modest) award of damages relating to the disruption of the claimant’s enjoyment of her afternoon at Chessington and any distress caused by the evacuation or any delay in carrying it out.

However, the main claim – which was the subject of the substantial damages awarded by the recorder – was related to the injuries allegedly suffered by the claimant. This claim was not advanced on the basis now put forward in the supplemental skeleton argument. It was not suggested to the recorder that the alleged overspeeding was irrelevant; i.e. that it did not matter whether the emergency stop happened because the car was travelling too fast. And it is not how the recorder actually decided the case. It is in my view clear that the recorder decided the case on the basis that the car was actually overspeeding. This is the only sensible interpretation of paragraph [23] of her judgment, and it is reiterated by paragraphs [25] and [27]. There is nothing in Mr Wheatley’s skeleton argument for the appeal which suggests that the recorder decided the case on the basis suggested by Mr King. As already discussed, Mr Wheatley’s skeleton argument asserts that the central question was whether the car was actually overspeeding, and that this had been resolved in favour of the claimant. The need for Mr King’s supplemental skeleton arose from the fact that the analysis in that skeleton is contained neither in the judgment itself, nor in Mr Wheatley’s skeleton argument on appeal.

I accept that the recorder did refer in her judgment to deceleration. In particular, she referred to it in paragraph [23]. However, her conclusion that deceleration was “accordingly quite significant” was clearly and closely linked to her finding earlier in that sentence that there was “significant overspeed”. She reaches no conclusion as to whether the deceleration was “quite significant” even if there was no significant overspeed. This is also apparent from paragraphs [25] and [27], taken together. In paragraph [25], she refers to the ride having exceeded the design tolerances. Her finding in paragraph [27], as to deceleration being considerable, was premised on the design tolerances having been exceeded by reason of the overspeeding. There is nothing to suggest that she applied her mind to the question of whether the deceleration was significant even if the car had been operating within its design tolerances. This is unsurprising; because it was not the case that was actually being advanced by the claimant. However, if anything, the implication of paragraph [25] is that she thought that if the ride was performing in accordance with its design tolerances, then there would have been no breach of duty.

The way in which Mr King now seeks to advance the case is, as it seems to me, aimed at overcoming the difficulty created by the recorder’s acceptance of the evidence of Mr Burton, and the logical conclusion that the car was not actually overspeeding. The argument is in substance an argument which seeks to uphold the decision of the recorder on grounds other than those which she relied upon, albeit that no respondent’s notice was served. It is permissible for a court to uphold a judgment on the basis of a new argument if the point raised is a pure issue of law. The second question, therefore, is whether the court can now decide the case on the basis of this argument, because it is unanswerable on the evidence.

In my view, the answer to this question is: no. This new line of argument raises questions of fact, and its success would depend upon favourable fact findings, concerning the speed of deceleration and any negligence in relation thereto, which are not contained within the judgment.

For example, it would require fact findings and conclusions in relation to points raised by Mr Lambert, based on the 2005 report of the consultants and the April 2016 certificate, that there was no foreseeable risk of injury. These points were advanced at trial in the context of the claimant’s case that the car was going faster than it was supposed to go. But they would also arise, and indeed would likely assume greater significance, in relation to the case advanced in the supplemental skeleton case: since it could obviously be said that there was no foreseeable risk of injury or negligence in circumstances where the ride was operating in accordance with design tolerances which had been carefully considered.

Furthermore, the new line of argument raises the same question of causation as to the role of the air line in the stoppage which occurred, and which I cannot resolve.

Accordingly, I do not consider that it would be appropriate or permissible for the court, on this appeal, to uphold this judgment on the basis of the argument in the supplemental skeleton. I am in no position to reach conclusions on liability in relation to a case whose substance was not advanced at trial, nor in relation to causation. It follows that there must be a retrial. I appreciate that this will involve additional expense for the parties, and that the present claim is a comparatively low value multi-track case. However, the case is clearly important to both parties, and in particular for Merlin which operates a well-known theme park which very many people visit each year.

Mr King said that justice can be a bit rough and ready in the county court, and drew a contrast with typical judgments from the Business and Property Court in the Rolls Building, where the appeal took place. However, the role of the courts, including on an appeal, is to apply the law and do justice as between the parties. I note that the case-law on the need for adequate reasons (see Section D above) has developed in the context of county court judgments.

Since the appeal succeeds in relation to the liability issues, and there will be a retrial, it is not necessary to consider the separate criticisms of the judgment on quantum issues. It is sufficient to say that on many of the points argued on appeal, it seemed to me that Merlin had a strong case. For example, the recorder’s award of £ 18,000 general damages seems to be considerably in excess of the applicable figures in the Judicial College Guidelines, and appears to award significant sums for psychiatric injury despite the fact that there was no psychiatric evidence before the court (in circumstances where the claimant had not been permitted to call such evidence).

The appeal is allowed and the case should be retried.