Expert Witness Journal Issue 68 August 2026 - Flipbook - Page 42
been triggered by the refurbishment works. That did
not, however, answer the common law or statutory
question whether the premises were reasonably safe
for their actual use.
Where the injury is a brain injury, the evidential
di昀케culties become more acute. Memory may be
fragmented or unreliable. Early histories may di昀昀er.
Accounts may evolve as a claimant attempts to
reconstruct events which he or she cannot properly
remember. The court must be careful not to equate
inconsistency caused by injury with dishonesty.
HHJ Simon found that the incident occurred during
a “frolic”, by which he meant something akin to
play昀椀ghting exacerbated by alcohol, rather than
a malicious assault. He regarded the claimant as
credible, in the sense that he was doing his best
to tell the truth, but unreliable in his recollection
of signi昀椀cant events. He preferred the broad
account emerging from the contemporary witness
statements.
ZZZ v Ministry of Defence [2026] EWCA Civ 875 is
a striking illustration. The claimant, an 18-year-old
ri昀氀eman required to live in Army accommodation,
fell from a second-昀氀oor landing to the ground
昀氀oor following an alcohol-exacerbated episode of
horseplay. The balustrade was approximately 900
mm high. The claimant was 6 ft 4 in tall. He sustained
serious injuries, including a signi昀椀cant brain injury.
At 昀椀rst instance, HHJ Simon, sitting as a Judge of
the High Court, in July 2025, found the Ministry of
Defence liable in full. On 8th July 2026, The Court
of Appeal, in a judgment given by Stuart-Smith LJ,
with which King and Falk LJJ agreed, dismissed all
six grounds of appeal.
The judge found that the claimant had not ceased
to be a lawful visitor; that the pre-accident risk
assessment was inadequate; that the low balustrade
was an inherently unsafe feature; and that a
balustrade of around 1100 mm would probably
have prevented the fall. He rejected the defences of
volenti, illegality and contributory negligence.
The judgment applies established principles with
clarity. Its central message is that an occupier
cannot avoid responsibility for a dangerous feature
of premises by attempting to convert a resident
into a momentary trespasser whenever the resident
behaves imperfectly. Nor can an appeal against
evaluative 昀椀ndings be turned into a second trial by
selecting isolated inconsistencies from a much wider
evidential picture.
The appeal
The Ministry of Defence advanced six grounds
of appeal. Taken together, they amounted to a
sustained attack upon both the factual 昀椀ndings and
the resulting conclusions of law.
The Ministry contended that:
The accident and the decision at
昀椀rst instance
The claimant was based at Bulford Army Base and
was required to live in the barracks. In the early
hours of 24 March 2019, after drinking with other
young soldiers in the barracks and in Salisbury, he
and Ri昀氀eman Graham became involved in a struggle
on the landing.
The precise mechanism of the fall was disputed. The
claimant’s accounts varied, unsurprisingly given the
combination of a serious brain injury and alcohol.
Statements taken from fellow soldiers described
play昀椀ghting or a “friendly drunk 昀椀ght”, involving
grappling, a headlock and an attempt by Graham
to break free. The claimant came into contact with
the balustrade, pivoted over it and fell to the ground
昀氀oor.
The judge’s 昀椀ndings that the event was a frolic
and involved no great force were unsupported
by the evidence.
2.
The claimant had breached Army rules or
committed criminal o昀昀ences and had thereby
ceased to be a lawful visitor.
3.
The claim was barred by illegality.
4.
The judge had wrongly treated the balustrade
as a danger, applying modern standards
retrospectively and reasoning with hindsight.
5.
Causation had not been established because
the claimant’s expert could not exclude the
possibility that the claimant would have fallen
over a 1100 mm balustrade if subjected to a
forceful push.
6.
The judge ought to have made a substantial
deduction for contributory negligence, with the
Ministry contending for a deduction of 75%
Every ground failed.
The building dated from about 1939 and had
originally been constructed as a place to treat the
sick rather than for use as soldiers’ accommodation.
The balustrade was approximately 900 mm high.
Modern guidance for guarding to common landings
indicated a height of 1100 mm. It was common
ground between the experts that the Building
Regulations were not retrospective and had not
EXPERT WITNESS JOURNAL
1.
An appeal is not a re-run of the trial
The 昀椀rst ground challenged the trial judge’s
昀椀ndings about what occurred on the landing. The
Court of Appeal began with the restraint required
of an appellate court when reviewing 昀椀ndings of fact
and evaluative conclusions.
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AUGUST 2026
