England and Wales High Court (Technology and Construction Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

		Claim No: HT-10-60 Royal Courts of Justice Strand, London, WC2A 2LL
		9th December 2010

 


Mr Justice Akenhead:

Introduction

1. The Third Parties apply for summary judgement as against the Defendants or to strike out the Third Party Notice. In essence, the ground is that, in the light of the only witness statement served by the Defendants for the trial due to start at the end of February 2011, the Defendant has no realistic prospect of success either in establishing that there was any duty of care or in proving that there was any breach of any duty which did exist.
2. The Claimants were in business, selling, repairing and servicing garden machinery at premises within a garden centre in Chapel Croft, Chipperfield, Hertfordshire. They had two units, A, which was the workshop office and storage area with some retail space and B, which was mainly a showroom for lawnmowers. There was no issue on this application that there were telephone cables running between three poles, one of which was by the entrance from Chapel Croft, the road, the second by or on Unit B and the third by a gate beside Unit A further into the property which led to an unloading area. The Claimants' buildings were part of an overall complex called "Garden Scene" of which the proprietors were Steven and Richard Foskett, the Third Parties.
3. Geographically, the entrance to both sites is off Chapel Croft with a roadway running straight from there past Unit B to the gate referred to above. The area between Unit B and Unit A and the Gate comprised a car park. Over hanging the car park and the roadway were the telephone cables.
4. On 11 May 2005, an articulated lorry driven by a Mr Hackett, an employee of the Defendant, who was making a delivery to the Garden Centre, came into contact with one or more of the overhead cables. This is said by the Claimants to have caused physical damage to their premises. Their claim is a substantial one exceeding £3 million including costs of repair and trading losses.

The History and the Evidence

5. The history thereafter including procedurally in these proceedings is set out in a judgement given on 6 July 2010 in this Court and reported as [2010] EWHC 1665 (TCC). I will not repeat that in any detail. Unsurprisingly, as the contemporaneous documents reveal, Mr Hackett made various written reports and produced a statement within a few months after the accident. He has always, in writing, accepted that his lorry came into contact with the cable, albeit that no damage was apparently caused to the lorry. For instance in a Motor Accident Claim Form, he wrote:

"I parked overnight in entrance of customer I was delivering to. Unbeknown to me I had driven under some telephone wires that were too low for the height of my [trailer] (15ft 9"). As it was very late when I got there & no lighting or a sign indicating [illegible] at the premises I did not know they were there. The next morning as I moved from the entrance to the goods in area I heard a strange noise only to see a telephone cable falling in between my and my [trailer]."

6. He later provided a witness statement dated 17 August 2005 and which has been disclosed. Relevant parts are:

"6. My present vehicle is a Scania articulated tractor unit…

7. In the cab of my vehicle is a 'Height' warning indicator, which is a lawful requirement for…a vehicle that tows high-sided trailers.

8. I am aware the trailers used by [the Defendant] are higher than the industry standard.

13-26. [He describes what he did the day before the accident including arriving at night and parking in the car park at Garden Scene]

27. About 9 a.m. the following morning…a man knocked on the door of my lorry.

28. I took him to be something to do with the garden centre and he told me to take my vehicle forward through the gates and down to the end where I could turn around and unload.

29. I prepared myself and I saw the gates were now open. I saw the man was in the vicinity but was doing something else.

30. I started up my vehicle and began to drive forward. I checked my offside mirror and at the same time heard a shout, "Woah". I stopped; I had only moved forward a couple of feet.

31. As I looked in my mirror I saw cables at the front top offside corner of my trailer and guessed they had been caught on the trailer roof.

32. As the vehicle stopped I saw a cable drop between the cab of my lorry and trailer…

34. With the help of the man I spoke with earlier, he held up a piece of wood and I drove my vehicle forward and away from the remaining cables…"

7. The Defendant denies liability for the claim in negligence made against it by the Claimants. The Amended Defence, served in July 2010, pleaded in Paragraph 7 a detailed explanation as to why Mr Hackett had not been negligent. Key elements of this are:

"(e) Mr Hackett moved the LGV at the instruction of the male;

(f) Mr Hackett moved the LGV in the direction instructed by the male;

(g) Mr Hackett was not warned of the presence of the cables by the Claimants or the Third Parties;

(h) Mr Hackett had no reason to check for or suspect low cables before his arrival at the car park;

(i) Mr Hackett could reasonably expect the Claimants to warn him of any hazards that might be present before causing or permitting him into the yard; and

(j) The cable which was snagged was below the normal height to be expected of telephone cables…"

8. The Third Party Notice served by the Defendant pleads at Paragraph 3 that the accident was wholly caused by the negligence of the Third Parties. Material parts are as follows:

"i. Mr Hackett parked the LGV without incident and slept in the lorry;

j. In the morning a male ('the male') whom the Defendant believes to have been one of the Third Parties' employees or agents (and possibly…Mr Stephen Foskett) attended at the LGV, knocked on the cab door; and asked Mr Hackett to move it from its parked position to a position in the yard of the Garden Centre, some way forward;

k. The male told Mr Hackett to get ready to move through the gates into the garden centre. Mr Hackett started his engine and went back into the rear of his cab to dress. As Mr Hackett was ready to move off, the unknown person pointed out to Mr Hackett that a catenary of a cable was on his cab.

l. Mr Hackett alighted from his cab and went between the cab and trailer to attempt to move the catenary which was well below standard heights.

m. The male returned with a bespoke wooden pole which, on its end, had a 'U' shaped attachment clearly designed to lift the cables. Mr Hackett realised that the issue of low cables was a long-standing one as there would otherwise be no purpose for the wooden pole and device.

n. The male lifted the cables to allow the LGV to pass and Mr Hackett drove into the garden centre, and delivered his load.

o. On the LGV leaving, the unknown person again lifted the cables.

p. The Defendant does not believe that contact with the LGV before Mr Hackett was told to move forward with the cable lifted by the male using the pole caused any or any material damage to the cable or to the places where they were attached.

q. Once the male produced the pole and lifted the cable, Mr Hackett reasonably relied entirely on the male to ensure that the cable was not snagged or damaged as the cable was behind and above him, out of his line of sight.

r. The male had at all relevant times full responsibility for the safe movement of the LGV which was under the male's direction…"

This was supported by a Statement of Truth.

9. Paragraph 4 of the Third Party Notice pleads that the Third Parties are liable to the Defendant pleading that they had responsibility for the safe movement of the LGV, to ensure that any cable was not snagged and to warn Mr Hackett of any risk of snagging. A claim for contribution as well as indemnity is pleaded. I infer from that that the Defendant is pleading that a duty of care was owed by the Third Party not only to the Claimants (for which a contribution is claimed) but also to the Defendant (for which an indemnity is claimed).
10. The Third Parties' Defence accepts that it was Mr Steven Foskett who was the "male" although there is a sharp difference as to what his involvement actually was. They plead that Mr Hackett had no permission to park overnight and in Paragraph 4 go on:

"(9) Mr Steven Foskett knocked on the door of the cab to the lorry. Mr Steven Foskett told the driver of the lorry that he would unlock the gates and indicated the location where he should stop beyond the gates and where Mr Foskett would use the forklift truck to unload the lorry;

(10) Mr Steven Foskett then walked away from the lorry to unlock the gates and prepare the forklift truck;

(11) The incident occurred while Mr Steven Foskett was out of sight of the lorry, driving a forklift track out at the bottom end of the car park some 80 metres away. Mr Steven Foskett's first awareness of the incident occurred when he heard a loud cracking sound;

(12) Mr Steven Foskett immediately ran to the scene of the incident. He saw that the lorry had become entangled in overhead cables and the damage had occurred to the telegraph pole which supported them…

(13) It was only after the incident that Mr Steven Foskett used a makeshift pole to lift the cables away and to enable the lorry to deliver its load and, after unloading the lorry, he stood on the forklift truck and he used the makeshift pole to enable the lorry to leave..."

11. Witness statements have been exchanged. The Defendant has served only one, from Mr Hackett. It is now clear that for whatever reason his evidence does not wholly support the pleaded with factual case against the Third Parties. He materially says only this in a short statement:

"7. I was woken at around 9.00 a.m. the following morning by a man, who knocked on the door of my lorry. He told me to drive the vehicle forward and to turn around in order to unload.

8. I dressed myself and shortly afterwards I started the vehicle and began to move forward. I had moved a very short distance, no more than a couple of feet or so when I heard someone shout "Whoah".

9. I immediately stopped and checked. There was a cable between the cab of my lorry and trailer. The man I had spoken to earlier produced a piece of wood, which I assume had been used before to lift the cable over vehicles. This the man did and I drove my vehicle forward…

11. I can confirm that there were no signs warning of any hazard such as the low hanging telephone cable nor was I given any warning by the man who instructed me to turn the vehicle around."

12. The Defendant has produced a draft Re-Amended Defence and a draft Amended Third Party Notice to seek to reflect this witness statement. It is unnecessary to set out the proposed amendments other than the Defendant seeks to add a claim under the Occupier's Liability Act against the Third Parties.
13. Thus, one can conclude that the only case against the Third Parties, which is supported by the Defendant's proposed evidence, is that:

(a) Mr Hackett parked overnight in the car park without any express permission.

(b) The following morning a male (probably Mr Steven Foskett) some minutes before the accident told him to drive the vehicle forward and to turn round in order to unload.

(c) He moved forward and the accident with the cable happened.

The corollary of this is that there is to be no evidence from the Defendant that

(d) The male had any further involvement prior to the incident or that he used some special or 'U' shaped wooden pole to hold the cable up.

(e) The male in some way actually directed any manoeuvre by Mr Hackett.

(f) The male was or should have been aware that the vehicle and trailer driven by Mr Hackett was of such a height that there was some risk that it might snag a cable.

(g) The cable was hanging at any point at an unusually low level or, for instance, less than a telephone company (probably British Telecom) would or might have recommended.

(h) Indeed, the only evidence about this is the earlier (August 2005) statements of Mr Hackett that the trailer was "higher than the industry standard" and that his cab had a "height" warning indicator.

The Law and Practice

14. No authorities have been relied upon by either party so far as the practice is concerned. In reality, under CPR Part 24.2 a claim may be dismissed where the claiming party "has no real prospect of succeeding on the claim". CPR Part 3.4 gives the court power to strike out a claim if it is an abuse of the court's process. The reality must be that if a claim, considered at its highest in the light of the evidence proposed to be adduced by the claiming party, has no realistic prospect of success, it can be disposed of by the court either by way of summary judgement or by way of the abuse of process approach.
15. The Court should be cautious in considering whether to give summary judgement or strike out as the case may be on the basis of what the likely evidence will be. However, with witness statements being exchanged and there being only a limited possibility for a party to adduce additional evidence in chief at trial, it can be a legitimate exercise to review witness statements against a pleading to determine if there are no realistic prospects of success. There are two caveats. The Court should not conduct a pre-trial trial in respect of controversial evidence; a safe approach must be to take the evidence at its highest to see if it does or realistically may support the case or defence. Secondly, it will be a relatively rare case in which it is an appropriate exercise to do; it will best suit relatively simple cases such as the current one.
16. The law relating to negligence differentiates between cases involving physical damage or injury and those involving economic loss. In the latter case, it is un-contentious that a claimant needs to establish a special relationship of proximity which generally involves an assumption of responsibility by the defendant towards the claim and reliance by the claimant. Thus for example, it is often, if not invariably, the case that a contractual relationship for professional services will also create a tortious relationship between the parties, because, axiomatically, proximity, assumption of responsibility and reliance are all present. However, one does not need a contractual relationship to establish such proximity. The House of Lords' case of Hedley Byrne & Co v Heller & Partners [1963] 1 LL Rep 485 is not only the leading authority on this but it also provides a good example of a non-contractual relationship giving rise to a duty of care.
17. Mr Coplin for the Third Parties referred to the Court of Appeal case of Hamble Fisheries Ltd v L Gardner &Sons Ltd [1999] 2 LL Rep 1 as another illustrative example. The defendant acquired the business of manufacturers of engines, one of which was incorporated in a fishing vessel acquired by the plaintiff. The vessel broke down because the engine failed and it had to be towed to port. The plaintiff sued the defendant for failing to warn it that inspections on the engines should have been carried out more frequently than was recommended in the engine manual. The Court upheld the first instance judgement to the effect that there was no duty of care owed. Some of the dicta in the judgement are relevant:

"18. The general rule is that in a case such as this a manufacturer and a fortiori, someone who has purchased the manufacturer's business has no duty. To see whether this case fell within the exception, the judge asked himself the right question, that is: was there a special relationship of proximity imposing a duty on the respondents to safeguard the appellants from economic loss…"( Per Tuckey LJ page 6)

"3. There is no general duty in English law to take reasonable care to avoid inflicting financial loss on those whom it is reasonably foreseeable will suffer such loss in consequence of acts or omissions…

5. If, as recent authorities have held, liability for purely financial loss is confined to cases of special relationships involving a voluntary assumption of responsibility, there cannot be any liability on this case because…there has been no "crossing of the line" between the parties so as to bring them into proximity with one another; no direct supply of goods, advice or services, no commercial content, nothing akin to contract". (per Mummery LJ at pages 8-9)

18. It follows from cases such as this that, in cases in which the claimant suffers no physical damage or injury but only suffers financial or economic loss, the claimant must show in a negligence claim that the defendant was in a special relationship of proximity with the claimant such that the defendant had assumed a responsibility towards the claimant and that the claimant had relied upon the defendant in that regard. Tuckey LJ in the Hamble Fisheries case referred to what Lord Browne-Wilkinson said in White v Jones [1995] 2 AC 207, 274:

"Though the categories of cases in which such special relationship can be held to exist are not closed, as yet only two categories have been identified, viz 1. where there is a fiduciary relationship and 2. where the defendant has voluntarily answered a question or tendered skilled advice or services in circumstances where he knows or ought to know that an identified plaintiff will rely on his answers or advice. In both these categories this special relationship is created by the defendant voluntarily assuming to act in the matter by involving himself in the plaintiff's affairs or by choosing to speak. If he does so assume to act or speak he is said to have assumed responsibility for carrying through the matter he has entered upon."

19. I will return to the facts of the current case both as pleaded and as supported by the Defendant's evidence to seek to determine whether sufficient exists to establish whether the Third Parties owed a duty of care to the Defendant. It surely must involve more than being an innocent bystander or passer by.
20. The Defendant seeks leave to amend its Third Party Notice to add a claim against the Third Parties under the Occupiers' Liability Act 1957. Section 2 of that Act states:

"(1) An occupier of premises owes the same duty, the "common duty of care", to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

(2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

(3) The circumstance relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases-

(a) an occupier must be prepared for children to be less careful than adults;

(b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.

(4) In determining whether the occupier of premises has discharged the common duty of care to visitors, regard is to be had to all the circumstances, so that (for example)-

(a) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe…"

21. Section 1 of that Act provides some general guidance:

"The rules so enacted [in this Act] in relation to an occupier of premises and his visitors shall also apply, in like manner and to the likely extent as the principles applicable at common law to an occupier of premises and his invitees or licensees would apply, to regulate-

(a) the obligations of a person occupying or having control over any fixed or movable structure…

(b) the obligations of a person occupying or having control over any premises or structure in respect of damage to property, including the property of persons who are not themselves his visitors."

22. It is clear from Section 1 that the Occupiers' Liability Act was intended to supplement the ordinary common-law duties of care of an occupier that it is equally clear from Section 2 that the "common duty of care" imposed or recognised by the Act goes to the reasonable safety of visitors. It is not obvious that the Act was intended to extend the common law duty of care in cases purely of economic loss. This is because it is primarily concerned with personal or physical safety of visitors.

Discussion

23. The Third Parties argue that in the light of the latest evidence from the Defendant that there is no or little realistic prospect of the Defendant establishing either that the Third Parties owed it a duty of care at all or, even if they did and in any event in respect of the duty of care owed to the Claimants, they were not in breach of any duty. The Defendant argues that the Third parties as occupiers of the car park must or must be taken to have known that the cables, and in particular the catenary or lowest point of the cables, were at a height at which there was a not insignificant risk that they would or could snag on the Defendant's lorry. It argues that there were no warning signs to alert someone like Mr Hackett of any danger posed by the cables and it was Mr Steven Foskett who told Mr Hackett to drive a lorry from where it was parked; as Mr Foskett was in a better position to judge the relative position of the cables, he should have warned Mr Hackett.
24. One first needs to analyse whether there is available in case that the Third Parties owed to Mr Hackett a relevant duty of care. It is pleaded in effect that such a duty of care was owed. However, the duty relates not to any physical damage to the lorry or trailer (let alone any physical injury to Mr Hackett), but is said in effect to extend to cover an indemnity for the Defendant against any claim made by the Claimant. It is therefore a claim for economic loss and thus it is necessary for the Defendant to establish that it or Mr Hackett was in a special relationship of proximity with the Third Parties such that they had assumed a responsibility towards it and that it had relied upon them in that regard. I cannot see that the Occupiers Liability Act adds to or extends the basic duty of care in this context, where the claim does not involve any personal injury or physical damage to the property of the Defendant or Mr Hackett. There is nothing in Mr Hackett's latest witness statement let alone in the draft Amended Third Party Notice which would establish the necessary proximity, assumption of responsibility by Mr Foskett or reliance by Mr Hackett on Mr Foskett.
25. Thus, the Defendant's claim in negligence against the Third Parties, based on any duty of care said to be owed to it by the Third Parties, has no reasonable prospect of success.
26. Whether I am right about that or not, it is certainly and properly arguable that, if the Defendant is liable for negligence to the Claimants, it would be entitled to seek contribution from the Third Parties on the basis that they owed a duty of care to the Claimant; however, it would still, obviously, be necessary for the Defendant to establish a breach of such duty in order to secure a contribution.
27. I am satisfied that the Defendant was no reasonable prospect of establishing any breach of duty against the Third Parties, on the basis of its proposed Amended Third Party Notice and its proposed evidence, for the following reasons:

(a) The only evidence as to Mr Foskett's involvement (which is coincidentally broadly consistent with Mr Foskett's own witness statement) is that he spoke briefly to Mr Hackett at about 9 a.m. and told him to drive the vehicle forward and to turn round in order to unload. There is no suggestion of any other involvement from Mr Foskett before the cable was snagged.

(b) There is no and is likely therefore to be no evidence that Mr Foskett in some way directed or shepherded Mr Hackett forward or in some way assumed any responsibility for his manoeuvres. Indeed, Mr Hackett in his witness statement says that after Mr Foskett spoke to him he dressed himself before he moved forward.

(c) There is no evidence of any sort proffered by the Defendant (or indeed anyone else) that Mr Foskett knew or should have known, just by looking or otherwise, that the lorry trailer was of sufficient height that it would or could snag the cable. There is to the contrary evidence from his August 2005 statement that Mr Hackett at least knew that his trailer was higher than the industry standard. There is no expert evidence for instance that the trailer was obviously much higher than someone in Mr Foskett's position should have appreciated was more than normal. There is no evidence that the cable or at least its lowest point was below any recommended height for such cables.

(d) The allegation pleaded by the Defendant that the Third Parties had available a special 'U' shaped pole effectively designed to raise the cable to allow vehicles to pass has been abandoned and, to be fair to Mr Hackett, he has never put that forward at least in any statement or record which has been disclosed. That evidence if available would of course have shown that the Third Parties knew that there was a real hazard with the cable and might well have supported a complaint that they should warned Mr Hackett that he was in an area where cables were. Coincidentally, the Third Parties have lodged some nine witness statements to the effect that lorries which regularly delivered at these premises never had any problems.

(e) It seems inevitable on this evidence therefore that all that Mr Foskett did was to tell Mr Hackett where to go on the premises. I do not see that this in itself gives rise to any breach of duty. There has to be more than that to establish a breach and the Defendant will not adduce any more evidence than that. On that basis, it can not succeed against the Third Parties.

Decision

28. It follows from the above that there will be judgement for the Third Parties against the Defendant and the Third Party proceedings will be dismissed.