Before : |
Advocate Matthew John Thompson, Master of the Royal Court. |
Between |
Phyllis Rose Roche |
Plaintiff |
And |
The Minister for Education, Sports and Culture |
Defendant |
Advocate A. D. Hoy for the Plaintiff.
Advocate S. B. Wauchope for the Defendant.
CONTENTS
|
|
Paras |
1. |
Introduction |
1 |
2. |
Background and procedural history |
2-5 |
3. |
The law |
6-7 |
4. |
Reasonable diligence |
8-15 |
5. |
Excusability |
16-17 |
6. |
The balance of justice |
18-19 |
judgment
the MASTER:
1. This judgment represents my decision in respect of whether or not to permit continuation of the present actions following a notice issued by me pursuant to Rule 6/26(13) of the Royal Court Rules 2004, as amended, ("the Rules") on 20th June, 2018.
2. The plaintiff's complaint is for damages arising from a personal injury sustained at Springfield Stadium. In summary, the plaintiff slipped while descending stairs inside the premises causing injury to her left ankle. The plaintiff was 76 at the time of the accident. The plaintiff's claim is based on the allegation that around the time of the accident shampooing and cleaning of the carpet at the top of the stairs was being carried out by a cleaning company and there were no warnings signs indicating that the floor stairs were wet or the cleaning was in progress. The defendant was pursued in negligence. The particulars of negligence are set out in paragraph 16 of the order of justice as follows:-
"16. The Defendant was negligent as follows:-
16.1 Allowing a hazardous situation to arise in a public area of Springfield without any or any adequate warning of its existence; and
16.2 Failing to ensure that the stairs and public areas were safe and particularly free from water and/ or cleaning products or chemicals; and
16.3 Failing to provide any warning that there was or had been cleaning in progress in the vicinity of the stairs and/ or failing to provide any warning that the stairs and/ or surrounding areas were wet and/ or soapy; and
16.4 Failing to exercise reasonable care to ensure that cleaning operations were carried out in such a way and at such a time that they did not pose a danger to patrons of Springfield."
3. The proceedings were commenced on 21st October, 2015. They were then adjourned for 4 weeks and then placed on the pending list by consent on 25th November, 2015. No further steps have occurred in the proceedings since the matter was placed on the pending list.
4. It is also appropriate to refer to certain exchanges of correspondence both before and after the commencement of proceedings. The correspondence or other related events referred to are taken from the affidavit of Frances Joy Littler in support of the plaintiff's application and in particular the chronology exhibited to her affidavit. The relevant dates are as follows:-
(i) Following a letter from Voisin & Co. to the Department of Education, Sport and Culture, Insurance Corporation of the Channel Islands ("ICCI") replied by a letter dated 14th August, 2013 denying liability and suggesting that the claim be referred to the cleaning company.
(ii) Correspondence then took place in 2014 with the cleaning company's insurers ultimately leading to witness statements being sent to the cleaning company insurers on 1st November, 2014. This produced a response dated 19th November, 2014 from the insurers denying liability. The letter stated that the cleaning company was only cleaning the ground floor landing and not the stairs where the accident occurred.
(iii) On 2nd December, 2014 ICCI on behalf of the defendant replied by repeating their denial of liability and directing Voisin & Co. to the cleaning company. This position was repeated in an email dated 9th January, 2015 from ICCI to Voisin &Co.
(iv) On 10th November, 2015 the defendant's legal advisers, Hatstones wrote to Voisin & Co. stating they were advising the defendant that the defendant was not liable. They further indicated they intended to defend the claim and convene the cleaning company as third party. They also sought details of quantum.
(v) In February, 2016 the plaintiff underwent a knee replacement operation. This was because the damage to the plaintiff's left ankle had caused the plaintiff to place more weight on her right knee which had then weakened as a consequence.
(vi) Towards the end of 2016, the plaintiff obtained a supplemental report from her expert. The defendant's lawyers were informed of this by an email dated 20th December, 2016 which led them to reply later that month stating:-
"In terms of filing an Answer, we remain ready to file if you require one. However, I think that a conversation about the matter, generally, in the New Year is a sound idea given the amount of time that has passed since we last discussed the matter."
(vii) In 6th March, 2017, Voisin & Co. emailed the defendant's lawyers explaining that they had obtained supplemental medical reports from their expert and stating:-
"I will shortly be taking my client's further instructions and will thereafter be in a position to revert to substantively with details of her claim, together with supporting medical evidence."
This communication was acknowledged the same day.
(viii) The relevant evidence was ultimately supplied to the defendant's lawyers in November 2017 leading to an email response from them where liability was "unequivocally denied" in which they also asked for copies of the medical reports.
(ix) In an email dated 13th December, 2017 the defendant's lawyers stated:-
"Notwithstanding that we are willing to look into this claim, liability is very much at issue."
(x) By an email dated 5th February, 2018 the defendant's insurers emailed stated:-
"However, as you know, our position has always been that Mrs Roche's prospects of establishing any liability of the Minister are very poor, whereas they are better against [the cleaning company] and it may be that my client is unwilling to make any offer at all in the absence of contribution from [the cleaning company's] insurer."
5. On 22nd March, 2018 sadly the plaintiff passed away.
6. In Hong Foods Limited v Gibbons & Ors [2014] JRC 187 at paragraphs 26 to 29 I summarise the relevant legal principles on a strike out application for a breach of the Rules as follows:-
"26. There is no real disagreement between the parties of the relevant legal principles on a strike out application for breach of the Rules which briefly are as follows:-
(i) The power to strike out is contained in Rule 6/26(13) of the Rules which permits the court of its own motion to dismiss an action after giving 28 days' notice in writing to all the parties;
(ii) On considering whether an action can be dismissed the court considers the following by reference to Lescroel v Le Vesconte [2007] JLR 273:-
(a) Apart from the failure to issue a summons for directions, has the plaintiff prosecuted its case with at least reasonable diligence;
(b) Is the failure to apply to issue for a summons for directions within the time frame contemplated, excusable;
(c) Has the plaintiff satisfied the Master/Court that the balance of justice indicates that the action should be allowed to continue?
27. Ultimately, the court in Lescroel also noted that the Master had a discretion. In B v MR [2007] JLR N 48, the Royal Court stated "the decision to dismiss an action without considering the merits should be taken on the basis of all the circumstances. The three questions should not therefore be considered sequentially with the court only considering the next question if the plaintiff succeeded on the previous one".
28. It is also clear that the remedy of dismissal must not be disproportionate to the breach involved (see B v MR [2007] JRC 139 at paragraph 26 and Irish Nationwide v The Volaw Corporate Trustee Limited & Ors [2012] JRC 035 at paragraph 27).
29. In Vieira v Kordas [2014] JRC 042 although considering a strike out under Rule 6/13 of the Rules, which is a slightly less stringent test, W. J. Bailhache, Deputy Bailiff at paragraph 19 stated as follows:-
"We come now to the question as to what sanction should be applied in the light of the first two findings. Having regard to the Article 6 Convention rights of the parties, we note and accept the proposition that we should not apply the most severe sanction of striking out the plaintiff's claim if there are other sanctions which could be applied which would enable justice to be done between the parties. Illustrations of the type of sanctions - costs orders, orders that no interest be due on any sum awarded and so on - are canvassed in some of the other cases. On the other hand, if the court were to be of the view that it is now no longer possible to have a fair trial of the action, then there would undoubtedly be prejudice to the defendant, and it would not be right to allow the action to proceed."
I consider it is correct to take the same approach in exercising the discretion vested in me where a beach of Rule 6/26 has occurred."
7. This test was approved by the Royal Court in Mayhew & Holmes v Bois Bois & Young [2016] 1 JLR 77 at paragraph 9. This is the approach I have taken in relation to this case.
8. The first question I have asked myself is whether the plaintiff has prosecuted its case with at least reason diligence. In considering this issue there are two aspects to the plaintiff's case, the first is liability, the second is quantum. It is clear from the above chronology that, both before proceedings were commenced and at the time proceedings were issued, the defendant denied liability. The test whether the plaintiff prosecuted her case with at least reasonable diligence therefore has to be considered in respect of both issues of liability and quantum. Simply because a case might be pursued with reasonable diligence in respect of quantum issues does not necessarily mean that there has been reasonable diligence in respect of liability.
9. Advocate Hoy reminded me that this was a claim of relatively modest value compared to some personal injury claims. The approach of the plaintiff and those advising the plaintiff was therefore to take a proportionate approach and not to incur costs unnecessarily because of the dangers of making a case uneconomic. For a low value claim the plaintiff was justified in ascertaining the extent of her injuries and the amount of any claim to see if a settlement could be achieved rather than incurring costs in respect of matters of liability where the costs of disputing liability could exceed the value of the claim.
10. In assessing this submission, I have reminded myself that the overriding objective introduced by Rule 1/6 of the Rules requires cases to be dealt with justly and at a proportionate cost so far as is practicable. I therefore agree with Advocate Hoy that too rigorous an application of procedural rules requiring issues to be determined without allowing parties an opportunity to explore their differences would not be the court discharging the overriding objective.
11. However, what the overriding objective sets out in detail (albeit reflecting the previous practice of the court) is that the court's discretion in what it expects in respect of progression of cases is a balancing exercise. The costs of resolving a particular point are one factor to be addressed in the overall exercise of the court's discretion and how the court expects cases to be resolved. In some cases a point will arise where an issue needs to be resolved notwithstanding that the costs of doing so might exceed what is at stake. Within Rule1/6(6) itself which lists matters that involve active case management, the court amongst other factors is required to both identify issues at an early date (sub-paragraph (b)) and decide in order which issues are to be resolved (sub-paragraph (d)).
12. With these general observations in mind, in relation to the approach of the plaintiff to quantum once proceedings were commenced there are periods of delay which are not explained. In particular, while the plaintiff underwent a knee replacement operation in February 2016, there was no meeting with the plaintiff until October 2016 and the defendant's advisers were only contacted at the end of December 2016. While some part of 2016 will have involved the plaintiff recovering from the operation that took place in February 2016, there is no explanation as to why nothing appears to have happened between February and October 2016. This is not reasonable progression.
13. There was also no communication between the plaintiff's advisers and the defendant's advisers between March and November 2017. Again, this delay is not explained and in my view is not reasonable progression.
14. As far as liability is concerned, in view of the denials of liability from the defendants both before proceedings were issued (in 2013 and 2014) and the repetition of the denial of liability once proceedings were issued, there has been no reasonable progression of this part of the claim. The defendant was not required to file an answer or to convene the cleaning company as a third party. Nor was a stay agreed on liability with the defendant; nor am I aware of any agreement with the cleaning company seeking to stay any issue of liability until the extent of the plaintiff's injury had become clear. One or more of these steps could have been taken to protect the plaintiff's position without significant costs being incurred. An application could also have been made to court for a stay to obtain an order that the plaintiff was not required to progress the action until the scope of the plaintiff's injuries became clearer if this could not be agreed. Such an order would have protected the plaintiff. Alternatively, if it was going to take some time for the extent of the plaintiff's injuries to become clear, a split trial could have been ordered. This would not have been complicated and is the sort of scenario where a split trial is justified. In this case the plaintiff was 76 at the time of the accident. Where a plaintiff or indeed a material witness to key events is elderly it is particularly important to ensure that matters proceed to a hearing sooner rather than later to avoid a situation where a party or material witness may not be able to give their evidence.
15. In light of the plaintiff's failure to take any of the above steps, I have concluded that the plaintiff has not pursued her case with at least reasonable diligence.
16. I then have to consider whether the failure to prosecute the claim with reasonable diligence is excusable, albeit I am not required simply to consider the questions sequentially but in the round. In respect of some of the periods of delay as identified above where no steps were taken, the periods of delay I have identified appear to go beyond waiting for a plaintiff to recover and to that extent are not excusable. As against that standing back from specific periods of delay, the defendant's insurers did indicate they wanted to understand the position on quantum, both before and after the issue of proceedings. However, at the same time liability was clearly and firmly disputed. The repeated denials of liability should have prompted those advising the plaintiff to have considered the options I have identified above to protect her position so that either an agreed a stay or a stay ordered by the court or was in place or a split trial was ordered. The failure to take these steps and/or to focus solely on the extent of the plaintiff's injuries when liability was denied, is not excusable. If this was a case solely about quantum when liability was admitted, I would have more sympathy with the plaintiff. However, this was not the case. Liability was consistently rejected and the plaintiff did not advance the claim on liability either to a conclusion or at least to protect her position while she recovered from the treatment she was undergoing.
17. The conclusion in this case does not mean that parties to low value personal injury claim are not free to agree a stay. Clearly, they may do so or ask the court to order a stay. Having started proceedings however a plaintiff who finds the claim disputed but who wishes to ascertain the extent of any injury suffered in personal injury cases should take steps to protect their position to avoid the claim being struck out.
18. If I am wrong on the above conclusion, and the approach of the defendant makes the failure to take steps to progress issues on liability excusable, I am not satisfied in this case the balance of justice allows the action to continue. This is an accident that took place on 14th November, 2012. Whether or not the defendant is liable or whether the cleaning company might be liable or whether both might be liable cannot now fairly be determined. While there may be some documents relating to the accident when it was reported at the time, in my judgment this case will ultimately turn on oral recollection of witnesses. The case on liability is about where the accident took place, where any cleaning took place and whether that cleaning caused or contributed to the plaintiff's accident. I am also not satisfied that a fair trial can now take place some 6 years after the event based on a witness statement of the plaintiff and oral recollection of other witnesses, assuming in the case of any cleaners that they could be found and they can remember what happened. This is not a case likely to be based on mainly documentary evidence where different considerations can apply.
19. In reaching this conclusion I have also taken into account that in the expert evidence filed on behalf of the plaintiff, the report refers to the plaintiff having pre-existing balance problems which is clearly relevant to liability and also that problems with her knees were partly due to the accident and partly pre-existing. Understandably the defendant would want to explore these issues at trial which is no longer possible.
20. The answer to the three questions set out in Hong Foods Limited all point to the action being dismissed. However, I am also required to look at the matter in the round. The lack of any progress in respect of a trial on liability or alternatively any stay coupled with this being primarily a factual dispute and the unexplained delays in obtaining evidence on quantum leads me to conclude in the round that this action should not be permitted to continue.
21. Finally, Advocate Hoy suggested that the plaintiff's claim against the defendant was not time barred in contract which justified the claim continuing. This was because the plaintiff had paid a fee for the exercise class she was attending where she fell. However, the claim is not in relation to the conduct of the exercise class and the plaintiff did not fall during the exercise class. Rather the class had finished and she was simply leaving the premises. In my judgment, the plaintiff was an invitee being someone allowed to use the premises for a specific purpose i.e. to attend a class for which she had paid. I am not persuaded that this is a claim in contract which would justify allowing the action to continue.
22. For all these reasons therefore the plaintiff's application to continue the proceedings is refused and the proceedings are struck out.
Authorities
Royal Court Rules 2004, as amended
Hong Foods Limited v Gibbons & Ors [2014] JRC 187.
Mayhew & Holmes v Bois Bois & Young [2016] (1) JLR 77.