Allport v Wilbraham

Reference: [2004] EWCA Civ 1668

Court: Court of Appeal

Judge: Auld, May and Neuberger LJJ

Date of judgment: 15 Dec 2004

Summary: Sport - Rubgy - Negligence - Personal Injury - Conflicting Witness Evidence

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C was severely injured during a rugby scrum, resulting in paralysis from the neck down. D had refereed the match. C claimed damages on the basis that D negligently failed to control the scrum in accordance with the Laws of Rugby, in particular by failing to call “engage” before the front rows engaged and failing to notice a player was not in the correct position. At trial C’s case was supported by his own evidence and that of two players from his team. D and the opposing team’s hooker gave evidence for the Defendant. The trial judge preferred D’s evidence to that of C and his witnesses, concluding that D was the most reliable and patently honest witness. C appealed on the basis that the judge
(1) was not even handed in his approach
(2) misunderstood some of the evidence
(3) failed adeqately to explain his reasoning


The nature and extent of duties imposed on a judge when trying cases involving a dispute of fact when preferring one witnesses account to that of another.


Dismissing the appeal, that the judge was entitled to reach the conclusions he had. In cases such as this, which involved a potentially very large claim turning on fairly detailed evidence it would not have been enough for the trial judge to simply say whose evidence he preferred. It was his duty to give reasons. In this case, however, there was no question that he had given adequate reasons. Further, as a matter of principle it was open to a judge to conclude that one witness had changed his evidence on one issue in a way which does not call into question his honesty or reliability, while concluding that another witness’s change of evidence is demonstrative of his general unreliability. Watt or Thomas v Thomas [1947] AC 484 and Flannery v Halifax Estate Agencies Limited [2002] 1 WLR 377 applied


The case is illustrative of the obvious difficulties facing parties on appeal where the only real issues are disputes of fact. An appellate court will rarely interfere with a trial judge’s findings unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses is not capable of sufficiently explaining or justifying the judges conclusion.