Jersey Unreported Judgments

Negligence - application for leave to amend defendant's answer to plead contributory negligence against the plaintiff.

[2014]JRC113

Royal Court

(Samedi)

14 May 2014

Before     :

Advocate Matthew John Thompson, Master of the Royal Court.

 

Advocate P. M. Livingstone for the Plaintiff.

Advocate L. A. Ingram for the Defendant.

judgment

the master:

Introduction

1.        This is an application for leave to amend the defendant's answer dated 5^th March, 2013, to plead contributory negligence against the plaintiff.  The defendant also applied to add the plaintiff's former employer as a third party to seek a contribution from the third party in respect of any damages payable to the plaintiff which application was not in dispute. 

Relevant events

2.        The plaintiff's claim arises out of an accident that occurred at his former place of work on 17^th February, 2010, when he fell off a chair.  This chair was manufactured by the defendant. 

3.        In an email sent on 28^th January, 2011, the defendant's insurers stated as follows:-

"We have completed our investigations and confirm that we accept there is a fault with the chair.

We consider causation will be covered by medical evidence and look forward to your nominated medical expert in this aspect."

4.        The email then sought information about loss of earnings, current symptoms and ongoing treatment. 

5.        The issue of contributory negligence was not raised in the email of 28^th January, 2011.  Rather the insurer's focus was on causation and the amount of the plaintiff's loss.  From this point on, the parties treated this email as an admission of liability. 

6.        The next relevant event was an exchange of emails between Advocate Dorey who was then handling the matter on behalf of the defendant, and Miss Katie Rio of Voisin.  Advocate Dorey emailed Miss Rio on 26^th September, 2011, and Miss Rio replied on 12^th October, 2011.  From an affidavit filed by Advocate Dorey in relation to this application, she spoke to Mr Flynn also an employee of Voisin and Miss Rio at the same time between the two emails I have referred to.  In these calls Advocate Dorey accepted that liability had been admitted but indicated that the defendant was still pursuing issues of contributory negligence and a third party claim. 

7.        The plaintiff issued proceedings by order of justice via Bois Bois (who then acted for the plaintiff) which order of justice was dated 6^th February, 2013.  This was to avoid any limitation defence being raised, notwithstanding the earlier admission, of liability. 

8.        Paragraphs 11 and 12 of the order of justice state as follows:-

"11.     By e-mail dated 28 January 2011 timed at 10.30 hours, AXA Insurance acting on behalf of Howlands, admitted liability for the Accident, inter alia, it accepted that there was a fault with the chair that collapsed.

 12.     Liability for the Accident was again confirmed by e-mail dated 29 September 2011 timed at 15.16 hours by AXA's lawyers, Messrs. Backhurst Dorey & Crane."

9.        It was accepted by both counsel that there is no email dated 29^th September, 2011, sent at 15:16 from Backhurst Dorey & Crane.  The email referred to appears to have been intended to be a reference to Advocate Dorey's email of 26^th September, 2011.  Although it is difficult to see from that email how liability was admitted, in the calls I have referred to that took place in September 2011, the defendant's insurer confirmed its admission of liability. 

10.      The defendant filed an answer on 5^th March, 2013. 

11.      Paragraph 11 of the answer pleads as follows:-

"For the purposes of this action only, the Defendant admits that the accident which occurred on the 17 February 2010 was caused or contributed to by its breach of duty.  Accordingly the Defendant admits Paragraphs 11 and 12 inclusive." (my emphasis). 

12.      Advocate Ingram accepted that the language of paragraph 11 of the defendant's answer is ambiguous as to whether or not it was raising an issue of contributory negligence.  In my view, it is difficult to follow what was meant by the words "caused or contributed" and whether the reference to "contributed" was meant to be a specific pleading of contributory negligence.  If it was, there were no particulars of such an allegation.  Against this observation, no clarification of what was meant by paragraph 11 of the answer was ever sought by the plaintiff. 

13.      Interrogatories were served on 22^nd March, 2013, and answered on 17^th April, 2013.  The relevant part of the interrogatories is in part 4 which was introduced by the remarks:-

"So that the Defendant can consider the prospective liability of other parties to this claim, please answer the Interrogatories below in relation to the circumstances of the accident." (emphasis added).

14.      The interrogatories were not therefore seeking to clarify a case of contributory negligence.  Rather the defendant was focussing on issues of causation and quantum.  The directions for trial given by me on 11^th November, 2013, were consistent with this focus and neither counsel sought before me to argue otherwise. 

15.      Finally, the matter is listed for trial for three days between 16^th and 18^th September, 2014. 

The nature of the application

16.      The key issue in respect of the defendant's summons is that the defendant now wishes to raise an allegation of contributory negligence against the plaintiff.  If such an allegation were allowed, the allegation would have to be tried at the same time as the proposed claim against the third party.  This is because the factual basis of the two allegations overlaps significantly with the result there could be inconsistent findings if allegations of contributory negligence against the plaintiff and the proposed third party claim were not heard together. 

17.      In considering the application to amend I have to evaluate whether it is made in the ordinary course of the proceedings or whether it is a late application as different principles apply to late applications to amend. 

18.      By reference to the relevant events I have set out above, the application relates to an accident that occurred over four years ago and where liability was admitted without any qualification over three years ago.  Although there were discussions about contributory negligence at the end of September 2011, the allegation of contributory negligence in the defendant's answer was at best raised in an ambiguous fashion and was not particularised.  The parties have also proceeded for three years, other than in two conversations in September 2011, on the basis that this was a dispute about causation and quantum.  Although I was informed that after September 2011 Advocate Dorey had sought to speak to former colleagues of the plaintiff to obtain evidence, no such statements appear to have been obtained.  It is right to observe that I do not know whether this is because individuals were approached and refused to provide such statements or whether their evidence was unhelpful to the defendant's investigations. 

19.      I have already set out my observations on the ambiguity contained in the defendant's answer and the lack of any particulars.  I consider that if contributory negligence is to be alleged it must be specifically pleaded and the grounds particularised. - see paragraph 18/8(9) of the 1999 White Book and the authority of Fookes v Slaytor [1978] WLR 1293.  However the interrogatories filed did not focus on contributory negligence but only on the possible liability of third parties.  The directions given last November were also about assessing quantum not liability or contributory negligence and no such issue was raised by the parties when they appeared before me.  While the plaintiff did not clarify the ambiguity in paragraph 11 of the order of justice, I quite understand why he did not do so given the clear admission of liability, that nothing further had been heard about contributory negligence since September 2011 and that the directions given solely related to causation and quantum.  

20.      In light of how the action has progressed until earlier this year, it is necessary to consider what has led to the present application.  Advocate Ingram was clear that his summons was a direct response to the scale of the plaintiff's claim, which was first revealed in a schedule of loss provided earlier this year.  In his schedule of loss the plaintiff seeks a significant figure for damages well in excess of £1 million.  The defendant regards this claim as overstated and assesses the plaintiff's loss as being in the region of £45,000 - £50,000.  This was why the defendant had not previously pursued issues of contributory negligence.  The difference between what the plaintiff is seeking and the defendant's assessment of the claim, through its insurers, is what has led to the defendant revisiting the issue of contributory negligence.  I address this further below. 

21.      But for this issue, the parties are broadly on track for trial.  Indeed, the defendant, in making the present application, sought to preserve the current trial dates including a third party claim.  Although I do not think it would be possible for a third party claim to be determined within four months, the fact that the defendant sought directions to have the third party claim determined within the present trial dates, is at least an acceptance that the matter will otherwise be ready for trial for the dates that have been fixed. 

22.      The matters I have set out in this part of my judgment therefore lead me to form the view this is a late application to amend.  It is therefore governed by the decision of the Court of Appeal in Brown v Barclays Bank 2001/241. 

23.      At paragraph 21, the Court of Appeal judgment provides as follows:-

"Where there is a late application for an amendment to the Order of Justice (or to the answer or reply) the Jersey Courts have to strike a balance which is primarily between the parties to the instant case.  The burden on the applicant is a heavy one to show, for example, (1) why the matters now sought to be pleaded were not pleaded before, (2) what is the strength of the new case, (3) why an adjournment should be granted, if one is necessary, (4) how any adverse effects on the other party including the effects of any adjournment, any additional discovery, witness statements or experts reports, or other preparation for trial can be remedied, and (5) why the balance of justice should come down in favour of the party seeking to change its case at a late stage of the proceedings."

24.      This is the approach I adopt.  In adopting this approach I accept that this application is not as late as the application in Brown case or other cases to which I was referred.  If there are degrees of lateness, then the present application is at the lower end of the scale.  I also accept that Advocate Ingram and the defendant, in bringing the application now, have acted quite properly in doing so rather than leaving the issue to the last minute or trying to catch the plaintiff out at trial. 

Decision

25.      The defendant in support of its application relies on an expert report from Dr Simon Jones of Burgoynes dated 14^th March, 2014.  The defendant also relies on the plaintiff's answers to part 4 of its interrogatories to which I have referred and paragraph 3 of a letter from Voisin dated 30^th June, 2010, which states as follows:-

"As my client was getting up off the floor, some his colleagues entered into the board room whereby they informed him that they were aware the chair was broken.  My client in his capacity as health and safety officer was aware that no one had reported that the chair was faulty to him, or that there was an issue with any of the chairs in the board room.  There were no warning signs in the board room to suggest that the chair was faulty.  The chair should have been removed."

26.      The particulars of contributory negligence contained in the draft amended answer are as follows:-

"It is the defendant's case that the plaintiff contributed to his fall in that he:-

i.         Failed to notice any or all defect in the chair;

ii.        Should have known and/or ought to have known that the defect in the chair given the knowledge of other employees;

iii.       Given the knowledge of other employees, failing to repair or replace the chair;

iv.       Failure to give proper look out to the apparent attachment and/or failure of both plastic brackets in the chair."

27.      Advocate Livingstone on behalf of the plaintiff indicated that in considering the amendments I should consider paragraphs (i) and (iv) together and (ii) and (iii).  I agree this is the correct approach to take. 

28.      In relation to allegations (i) and (iv), namely the defendant should have noticed the defect or should have kept a proper lookout, this allegation relies on the expert report of Dr Jones.  In his report Dr Jones very fairly sets out that he did not examine the actual chair that had collapsed but only an example of a similar chair containing the same type of bracket.  He had also not seen any photographs of the collapsed chair or any clear description of why it failed.  The chair also as far as I am aware does not appear to have been kept. 

29.      At paragraph 3.4 of his report Dr Jones explains that to try to initiate a failure he removed one of the brackets from the chair by removing a bolt which fixed the back of the chair to its frame. 

30.      He then stated:-

"Notably, when I began the test of the flexibility of the chair and its frame resulted in a significant gap between the normal and actual bracket positions at the detached bracket.  The chair also flexed to one side as I sat on it and I considered that if a broken or detached bracket had been in place it ought to have been relatively obvious that there was a problem even to a lay person."

31.      At paragraph 4(1) of his report he stated:-

"However the relevant chair seems to have been disposed of and I have not seen any photographs of it or clear description of the failure mechanism."

32.      It is right to observe that the chair he had examined was not the same design as the chair that had collapsed but another chair which had the same design bracket. - see paragraph 3(2) of his report. 

33.      At paragraph 4(5) of his report Dr Jones stated:-

"Given the available evidence and information I cannot confirm why the incident brackets reported failed.  One possibility is that a defective batch of brackets was produced.  Another possibility is that the fixing screws of the arms came out, but in my view the design was such that this would be unlikely to occur during normal service.  Nonetheless, I cannot exclude the possibility of that the screws did come out or they were moved deliberately, e.g. for maintenance or as a practical joke.  In any event I consider it unlikely that both brackets would have failed simultaneously.  Therefore unless the brackets were detached deliberately, I expect there would have been an obvious opportunity to identify that one bracket had failed and the chair required repairs. This is because I would expect a detached or fractured bracket to have been relatively obvious, even to a lay person.  Hence the incident would likely to have been avoided if PBS had dealt with the first bracket failure when it became apparent e.g. by taking the chair out of service until new brackets could be obtained." (underlining added)

34.      At paragraph 5(1), Dr Jones in his summary stated as follows:-

"The available information indicates that an Orion chair manufactured by Howlands, collapsed under Mr Cummins.  It seems that no physical or photographic evidence remains to allow me to conclude what caused the chair to collapse, albeit a manufacturing defect is one possibility.  In any event my examination of an exemplar Orion chair indicated that the only than likely explanation for a collapse would the failure or detachment of both plastic brackets that affixed the chair back to the chair frame arms. I consider it unlikely that both brackets would have failed simultaneously which means that this incident would have likely have been avoided if PBS had dealt with the first bracket failure when it became apparent."

35.      The only other relevant evidence is that the plaintiff has consistently stated both in Voisin's letter of 13^th June, 2010, and his answers to the interrogatories that he was only told by other employees that the chair was broken after he had sat on it and it had collapsed beneath him.  There is no evidence that he knew of any problem with the chair before he sat on it. 

36.      The current pleading would, if not particularised or amended, be contrary to Rule 6/8(5)(b) of the Royal Court Rules 2004, as amended.  This rule requires any pleading to particularise any matter which, if not specifically pleaded, might take a party by surprise. 

37.      In relation to the proposed amendments that the plaintiff failed to notice or observe any defect, Dr Jones is unable to conclude what caused the actual chair to collapse because the chair was no longer available and because of the lack of any photographs or other documentary records of the incident.  He also cannot explain why the brackets failed and sets out a number of different possibilities.  All he can conclude is a hypothesis that the plaintiff could have identified that one bracket had failed and the chair required repairs and that a detached or fractured bracket would have been relatively obvious.  While Dr Jones in his report has been very fair as to what he has seen and not seen, and has clearly had regard to the duties owed by an expert, his conclusion is only one of a number of possibilities based on examination of a bracket used on a similar type of chair.  In my view the case by reference to this evidence is not compelling and is not strong. 

38.      In relation to proposed amendments (ii) and (iii), namely that the plaintiff should have known about the defects given the knowledge of others and should have repaired the chair given their knowledge, I regard these particulars as weak.  As I have noted above, the plaintiff has consistently said that he only knew that others were aware of a defect in the chair after the incident had occurred.  No evidence has been produced to show otherwise.  The proposed amendments do not plead that the plaintiff actually knew of the defect in advance of the incident, only that he ought to have known.  There is no evidence that others had taken any steps or made any form of report so that the defect should or would have come to the plaintiff's attention.  An allegation that someone ought to have known something also ought to be particularised (see paragraph 18/12/23 of the White Book).  Yet no such particulars as to why the plaintiff ought to have known or should have known are set out in the proposed amendments.  The report of Dr Jones also does not help in relation to these proposed amendments because they rely on the knowledge of other employees. 

39.      I am therefore of the view that the proposed amendments are at best not strong and some of them are weak which is the second factor listed in the Brown case. 

40.      Looking at the other factors in Brown, Advocate Ingram was quite clear as to why the amendments were sought at this stage, namely in response to the difference in quantum sought by the plaintiff and the defendant's assessment of the case.  In my judgment, in relation to this issue, the defendant can protect itself by a payment into Court or a Calderbank offer.  If its arguments prevailed at trial, the defendant would also be able to seek from the Court orders allowing it to set off any costs orders in its favour against damages found to be due to the plaintiff.  While I cannot of course bind the Royal Court, in my view such an application if the defendant prevailed, would appear to be a strong one. 

41.      Secondly even if I were to allow the amendment, this would only reduce the plaintiff's claim in part.  In argument, I asked Advocate Ingram what sort of percentage he sought to reduce damages by, if he was allowed to plead contributory negligence.  At this stage he indicated that he felt that any damages would be reduced by 25 to 30 per cent.  While the case may develop between now and trial, I do not regard that assessment as unrealistic.  If damages claimed were £1.2 million and were reduced by 30 percent i.e. by £360,000, this would still leave the plaintiff claiming £840,000 compared with a claim of £45,000 to 50,000, which is the defendant's assessment of what the claim is worth.  The defendant will have to protect itself in any event, if it wishes to do so, by use of the mechanisms I have described.  The proposed amendment does not therefore address the disparity between the plaintiff and the defendant's assessment of quantum which has what has led to the application to amend.  At best it would only reduce it in part. 

42.      Turning to the third factor in the Brown case, if I allowed the amendment, the case would have to be adjourned.  This would be firstly to allow the plaintiff to produce his own expert evidence.  Secondly, given the overlap between the proposed amendments, as against the plaintiff and the third party claim, the allegations of contributory negligence and the third party claim would have to be heard together.  Both would involve evidence from the plaintiff, expert evidence and possibly other former colleagues of the plaintiff.  The allegations would also mean that the time currently allowed for the trial dates would be likely to prove insufficient.  There are already significant issues on quantum to argue which will take up most if not all of the time currently allocated.  I agree with Advocate Livingstone that adding an issue of third party liability and contributory negligence would mean that a more realistic time estimate for trial would be a week.  It is also in my view both unrealistic and unfair to expert the third party to be ready for trial in four months.  If I allowed the amendments, the current trial dates would have to be adjourned and directions given.  In my view, it is likely that the trial could then well be delayed by up to a year. 

43.      The fourth factor is that the plaintiff would also have to obtain his own expert evidence and would have to try to obtain evidence from factual witnesses in particular his former colleagues if they are willing to assist him.  This will not be easy for an incident that occurred four years ago where I am not aware of any statements having been taken from former colleagues. 

44.      The fifth factor is that the amendment would delay any award of damages for an incident that occurred over four years ago and where liability was admitted without qualification over three years ago.  In my view, to add a further year's delay is unfair on the plaintiff.  In my experience, a plaintiff involved in litigation of this kind often finds it difficult to move on until the litigation is resolved either by a decision of the court or by a settlement.  A further delay will therefore mean that the plaintiff would have to continue to bear the stress of litigation for up to another twelve months. 

45.      In relation to evaluating where the balance of justice lies, from the defendant's perspective, the defendant is not without remedies.  It can make a payment in to court or a Calderbank offer as I have noted above.  Even if the amendment against the plaintiff is not allowed, there is no objection to the amendments pleading a third party claim as long as the third party claim did not delay the current trial.  In that regard, in reaching my decision, I have taken into account the fact that the claim against the third party is based on evidence that the managing director of the plaintiff and other employees knew of the broken chair even though the plaintiff has stated he did not.  That is clearly a factual basis on which a third party may be pursued and, if established at trial, could lead to the third party being required to make a contribution.  A claim against a third party is not also time barred because by Article 3(1)(c) of the Law Reform (Miscellaneous Provisions) (Jersey) Law 1960, as considered in Bell v Heating and Ventilation Engineering Company Limited and Others [1985-86] JLR 241, time does not start to run in respect of any claim against a third party seeking a contribution until a defendant is required to or agrees to pay damages.  

46.      In my judgment, having considered all the factors in Brown, the defendant has failed to discharge the heavy burden on him to persuade me to allow the amendments sought against the plaintiff to allege contributory negligence at this relatively late stage.  The explanation as to why issues are only being raised now is not one that justifies the amendments sought.  The amendments sought against the plaintiff for the reasons I have set out is not a strong case and in part is weak.  It also would lead to an adjournment of the trial and additional costs for the plaintiff.  The defendant has other protections available to it as I have indicated.  Refusing the amendment against the plaintiff does not prevent the defendant from seeking a contribution from the third party.  Whether the defendant wishes to do so by pleading the third party claim or by issuing a separate order of justice is a matter for the defendant.  If the defendant maintains its application to amend the third party claim, I would give directions for such a claim to be heard after the plaintiff's claim against the defendant is determined. 

47.      The application to amend the defendant's answer to plead contributory negligence against the plaintiff is therefore refused. 

Authorities

1999 White Book.

Fookes v Slaytor [1978] WLR 1293.

Brown v Barclays Bank 2001/241.

Law Reform (Miscellaneous Provisions)(Jersey) law 1960.

Bell v Heating and Ventilation Engineering Company Limited and Others [1985-86] JLR 241.

Royal Court Rules 2004, as amended.

Supreme Court Rules (The White Book) 1999.