The defendant appealed reversal on appeal of the award of damages aganst them. The pursuer had been working within the hull of a ship, and the plank on which he was standing had snapped, causing him to fall. The plank should have been of sufficient strength to hold his weight. The pursuer’s memory of the events was found to be faulty in several respects.
Held: An appellate court should only replace its own judgment on the facts where the opinion appealed was ‘plainly wrong’. The appeal court here appeared not to have followed that rule. There were difficulties in the pursuer’s explanation, but no other explanation offered itself. Nevertheless, in the absence of evidence, the claimant had to rely upon res ipsa loquitur. That was not available to the pursuer here, and the opinion dismissing his claim was restored.
Lord Hope said: ‘The rule which defines the proper approach of an appellate court to a decision on fact by the court of first instance is so familiar that it would hardly be necessary to repeat it, were it not for the fact that it appears in this case to have been overlooked.’ and: ‘It can, of course, only be on the rarest occasions, and in circumstances where the appellate court is convinced by the plainest of considerations, that it would be justified in finding that the trial judge had formed a wrong opinion.’
Lord Nicholls of Birkenhead, Lord Steyn, Lord Hope of Craighead, Lord Hobhouse of Woodborough, Lord Rodger of Earlsferry
 UKHL 45, 2003 SCLR 765, 2004 SLT 24,  PIQR P7, 2004 SC (HL) 1
Bailii, House of Lords
Shipbuilding and Shiprepairing Regulations 1960 (SI 1960/1932) 17(1)
Cited – Clarke v Edinburgh and District Tramways Co HL 1919
The House considered the ability of an appellate court to reconsider the facts.
Held: The privileges enjoyed by a trial judge extend not only to questions of credibility.
Lord Shaw said that the judge enjoys ‘those advantages, sometimes . .
Cited – Watt (or Thomas) v Thomas HL 1947
When Scots Appellate Court may set decision aside
The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: ‘(1) Where a question of fact has been tried by a judge without a jury, and there is no question . .
Cited – McLaren v Caldwell’s Paper Mill Company Ltd 1973
(Lord Stott, dissenting) A Lord Ordinary’s view on the credibility or reliability of a witness is not sacrosanct. . .
Approved – Yuill v Yuill CA 1944
Appellate Court’s Caution in Reassessing Facts
The Court of Appeal was invited to reverse the decision of the judge at first instance to accept the evidence of the petitioner (no evidence having been called by the respondent).
Held: The court considered the caution needed when overturning . .
Cited – Scott v The London and St Katherine Docks Co CEC 1865
Requirements to set up Res Ipsa Loquitur
The maxim res ipsa loquitur applies only where circumstances are established which afford reasonable evidence, in the absence of explanation by the defenders, that the accident arose from their negligence. The doctrine of res ipsa loquitur is that: . .
Cited – McGraddie v McGraddie and Another (Scotland) SC 31-Jul-2013
The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .
Cited – Henderson v Foxworth Investments Limited and Another SC 2-Jul-2014
It was said that land, a hotal and gold courses, had been sold at an undervalue and that the transaction was void as against the seller’s liquidator.
Held: The appeal was allowed. The critical issue was whether ‘the alienation was made for . .
Cited – DB v Chief Constable of Police Service of Northern Ireland SC 1-Feb-2017
The appellant said that the police Service of Northern Ireland had failed properly to police the ‘flags protest’ in 2012 and 2013. The issue was not as to the care and effort taken, but an alleged misunderstanding of their powers.
Held: Treacy . .
These lists may be incomplete.
Updated: 02 February 2021; Ref: scu.185423