Waghorn v Wimpey (George) and Co: 1969

The plaintiff pleaded that he slipped on a bank, but the evidence was that he slipped on a path.
Held: The variation in the case presented from that pleaded was fatal to the case. The court considered such variations: ‘In the present case Mr Archer contends that the true version of the facts is just a variation, modification or development of what is averred, and is not something new, separate and distinct. The only similarities, however, between the plaintiff’s allegations in his pleadings, the way his case was presented, and what in fact took place were these: first of all, the plaintiff slipped; secondly, he slipped at his place of work; and thirdly, he slipped somewhere near a caravan, when it is alleged that he did slip somewhere near a caravan. But the whole burden of the claim put forward by the plaintiff, and the whole burden of the defence to that claim prepared by the defendants and put forward on their behalf by Mr Machin, has been the safety or otherwise of the bank, and not the safety or otherwise of the path at the right-hand side of the caravan, where it runs alongside the dip. In my judgment, this is not a case which is just a variation, modification or development of what is averred. It is a case which is new, separate and distinct, and not merely a technicality. Let me hasten to add that if matters emerge, particularly matters of technicality which, perhaps, could not be foreseen by those responsible for pleading cases, and those things emerge during a case, then it would be quite wrong to dismiss a plaintiff’s claim because his pleadings have not measured up to the technical facts which have emerged. One often listens sympathetically to applications to amend in those circumstances. Here, however, there is nothing technical at all. A man is said to have slipped. There is nothing technical about that. One must test the plaintiff’s submissions in this way: if these allegations had been made upon the pleadings in the first place, namely allegations based upon the facts as they have now emerged, would the defendant’s preparation of the case, and conduct of the trial, have been any different? The answer to that is undoubtedly ‘Yes.’ Evidence would have been sought as to the safety of the pathway alongside the caravan; as to the frequency with which it was used; as to the position of the valve under the caravan. I say that because there was a dispute as to its precise position. Mr Younger, the charge-hand, said it was on the left-hand side of the caravan. Mr Frost said it was on the right-hand side. If the plaintiff’s case had been pleaded to the effect that it was whilst he was on his way to that valve that he had slipped, then the preparation of the case would have been entirely different and its presentation would have been different. There was no application here for leave to amend. Indeed, Mr Archer may have been very wise not to make any such application, but the upshot of this matter is that this was clearly so radical a departure from the case as pleaded as to disentitle the plaintiff to succeed.’
References: [1969] 1 WLR 1764
Judges: Geoffrey Lane J
Jurisdiction: England and Wales
This case is cited by:

  • Cited – McNamara v North Tyneside Metropolitan Borough Council CA 21-Feb-1997
    The claimant sought damages for personal injuries. The case he presented at trial differed from that pleaded, and he now appealed dismissal of his claim.
    Held: The variation was sufficiently serious to justify the refusal of relief. In fact . .
    (, [1997] EWCA Civ 1072)
  • Cited – Newman v Whitbread Plc CA 26-Feb-2001
    The claimant sought damages after falling down stairs at work. She said that the stairway did not comply with the British Standards in breach of the Regulations. The employer responded that the non-compliance was merely techical, and could not have . .
    (, [2001] EWCA Civ 326)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194070