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When members of the public are talking to lawyers about court cases, a question often asked is “How do you prove all this? How do you prove that something happened in a particular way if nobody saw it, or if the witnesses all say different things?”
Sherlock Holmes once said “When you have eliminated the impossible, whatever remains, however improbable, must be the truth.” This is a snappy quote, but is not a good description of the job which the courts have to do every day. In reality, if all that is left after the impossible explanations have been discarded is an improbable one, the courts will not accept that explanation either. The explanation a court will believe has to emerge as not only the most probable, but also in itself plausible. Deciding which one that is can be a job worthy of the great detective himself, as the recent case of Smith v Muir Construction shows.
The case reads almost like a classic murder mystery, although nobody actually died. Mr Smith was a joiner. He was working on the ground floor of a building site with Mr Stuart, another joiner. Mr Stuart was in another room when he suddenly heard a crash. He rushed back into the room where the noise had come from, to find Mr Smith lying on the floor in a pool of blood. A ladder was lying next to him. Nobody knew what had happened, there were no witnesses, and when Mr Smith regained consciousness he could not remember anything about it.
Mr Smith sued his employers for damages. Predictably, they argued that they could not be found liable since nobody could say what had happened. Any attempt to explain the incident would be no more than speculation. Fortunately, the Judge was a little more sophisticated, and after a careful examination of all the facts and circumstances was able to piece together the most likely explanation of the accident.
Until shortly before the accident there had been some scaffolding inside the ground floor of the building, with a ladder leading from the ground floor to the first floor. The scaffolding had been removed, but for some reason the ladder had been left lying on the ground floor. Just to get it out the way, Mr Stuart had pushed the ladder up onto the first floor through an opening which was to be the stairwell when the stairs were put in. The end of the ladder was left protruding over the hole with a piece of plastic hanging down from it at the end, so that the ladder could be easily grabbed and pulled down again if it was necessary to climb from the ground floor to the first floor.
Shortly before the accident Mr Stuart heard Mr Smith shouting to him that he was about to go upstairs to get something. A few minutes later Mr Stuart heard the crash, and rushed into the room to be confronted with the scene described above.
Mr Smith said that the most likely explanation was that he pulled the ladder down from the first floor, and began to climb it when the ladder collapsed. There was evidence that the floor was slippery. Alternatively, whilst he was pulling the ladder down from the first floor, it might have slipped and hit him on the head. In either of these circumstances the employers would be liable because they had not provided a safe system of work. However, the employers said that many other scenarios were also possible. For example, Mr Smith might have safely got to the first floor and then fallen back through the hole simply due to his own carelessness, knocking the ladder down with him. Or he might have got the ladder down, but slipped and pulled it down on top of himself before he ever began to get off the ground floor.
All these explanations were to an extent speculation, but some were more speculative than others. The medical evidence showed that Mr Smith had fallen from a height, not that he had fallen over from a standing position. His injuries did not look like somebody who had been standing on the ground and was then hit by a ladder. As to getting safely to the first floor and then falling backwards through the hole, there was no evidence of why he should have done such a thing, or what would have caused him to do so. Therefore, by far the most likely explanation was that he had begun to climb the ladder and got some way up, when it slid backwards on the slippery floor and threw him to the ground.
In these circumstances Mr Smith’s claim was successful. Although we shall never know for certain exactly what happened, it is good to know that our Judges are capable of putting on the deerstalker when the occasion demands.