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Testing the inconsistences Hill v Angus Council [12.01.23]
  • Aug 23, 2023
  • Latest News

by Tim Lennox, Senior Associate, Glasgow -

This case review was co-authored by Dawn Leckie, Trainee Solicitor, Edinburgh.

In a recent case handed down by the Sheriff Appeal Court, the Sheriff Principal considered whether the previous sheriff erred in attaching too great a weight on hospital records when assessing the credibility of the pursuer, where the authenticity of the documents was not agreed and the nurse who wrote the record had not been called to give evidence.

Mr Hill brought an action against Angus Council following an accident in March 2019 when he fell down the stairs in the communal stairwell for his flat, owned by the defender. He based his claim on the defender’s alleged failure to comply with the Housing (Scotland) Act [2001] and the Occupiers’ Liability (Scotland) Act [1960]. The stairwell had lights on a timer, which he and other neighbours reported as defective prior to the incident. The lights were not fixed and, as he left his property one morning, he was unable to see where he was stepping and fell. The key issue at first instance was the credibility and reliability of the pursuer’s evidence.

The case was heard by Sheriff Brown who found in favour of the defender. She accepted the accident  occurred, however, considered the pursuer’s evidence to be unreliable due to the “sheer number of  inconsistencies”.

The pursuer appealed, raising issues with the sheriff’s consideration of the evidence of two of his neighbours and in relation to entries within his medical records. He argued that the sheriff erred in discounting the evidence as unreliable and incredible, and that the reasoning for failing to find that the accident was caused as asserted by the pursuer was “plainly wrong”. The pursuer argued that the sheriff had no evidential basis to find that the medical records were an accurate record of what the pursuer had reported to the nurse.

The appeal was heard by Sheriff Principal Lewis. She considered that the discussions with the plaintiff's neighbours were “brief and unspecific as to date, time, precise location and cause”, and there was no further helpful information ascertained in chief or cross-examination. She was unsurprised that whilst the neighbours were considered credible and reliable, the sheriff at first instance didn’t consider them helpful in determining the cause of the accident. She did not consider deeming them credible and reliable was contradictory to assessing that the information they could provide as unhelpful.

The Sheriff Principal rejected the pursuer’s position that too much weight was placed on the contemporaneous records. The explanation of how the accident occurred as recorded by the nurse at the hospital differed from the pleadings and the pursuer’s evidence. The Sheriff Principal stated that as the medical records were disclosed, the defender was entitled to test the pursuer’s credibility and reliability on the content.

Ultimately, the Sheriff Principal was content with the approach and view taken by the sheriff at first instance and found no reason to depart from her conclusions. The appeal was ultimately refused with expenses awarded to the defender.

The case highlights the importance of considering the finer details in a pursuer’s case. On the face of it, there was evidence that the accident occurred. The pursuer cited several witnesses, who were all well regarded by the Court, however, there was little informative value within the content of their evidence. The documentary evidence contrasted significantly from the pursuer’s version of events and considerable weight was given to the records given their contemporaneous nature.

It is a reminder that when it comes to evidence, it is always quality over quantity!