Personal Injury Claim - detailed reasons for ordering a split trial.
Before : |
Advocate Matthew John Thompson, Master of the Royal Court. |
Between |
Filipe Guilherme Vieira |
Plaintiff |
And |
Fox Plastering Limited |
Defendant |
And |
A&A Scaffolding Limited |
First Third Party |
And |
B. Le Cornu Building Contractors Ltd |
Second Third Party |
Advocate R. S. Tremoceiro for the Plaintiff.
Advocate D. A. Corbel for the Defendant.
Advocate R. O. B. Gardner for the First Third Party.
Advocate K L. Hooper for the Second Third Party
judgment
the master:
1. This judgment represents my detailed written reasons for ordering a split trial.
2. The parties were all agreed that a split trial should be ordered. The difference between the parties was the extent of the issues that should be the subject of a split trial.
3. The plaintiff's claim against the defendant arises out of an accident that took place on 27th October, 2014 while the plaintiff was working as a labourer and a plasterer for the defendant. The plaintiff's claim is that when the accident took place he was working on scaffolding boards and fell through a gap in the boards leading to injury, in particular, a hip replacement.
4. In respect of the accident on 27th October, 2014, the defendant admits that the scaffolding upon which the plaintiff was working was not properly secured and therefore admits it was in breach of its duty of care.
5. However, the defendant pleaded as follows at paragraphs 18, 19 and 20 of its amended answer.
"18. The Plaintiff is required to prove causation. The Plaintiff is required to prove the mechanism of injury, the nature of the injury sustained, and the extent of the loss and damage resulting, which are not admitted.
19. Specifically, the Plaintiff must prove that the fact of the scaffolding boards not having been secured was an effective cause of the first accident (rather than some other mechanism of causation, such as the Plaintiff accidentally stepping off the edge of the working platform or otherwise losing his footing).
20. Although not secured, the scaffolding boards were long and heavy and were laid side by side. Accordingly, a gap would not have opened up between them without someone having moved them. It appears to be the Plaintiff's case that the boards "came apart' in the course of the working day. The likelihood is that, if there was a gap between the boards, which is not admitted, then it was the Plaintiff who opened up such a gap by moving the boards."
6. The defendant also joined the first third party as a third party. The first third party erected the scaffolding. In summary the defendant alleges that the scaffolding was erected negligently by the first third party. The first third party pleads that it erected the scaffolding many months previously and did not undertake any subsequent examinations of the scaffolding. The first third party therefore pleads that the plaintiff's injuries were caused by his own negligence. In the further alternative the first third party blames the defendant and the second third party for failing to inspect the scaffolding or to arrange for any defects to be remedied.
7. The second third party was the main contractor on the site. The defendant alleges that the second third party failed to supervise the site properly including the scaffolding to provide a secure place of work. This is denied by the second third party. Otherwise the second third party takes the same approach as the defendant in relation to causation and adopted paragraphs 18 to 20 the defendant's amended answer. The second third party also pleads an alternative case that the defendant and the first third party were in breach of duty.
8. Between all the parties there is therefore an issue as to what caused the plaintiff's injuries and whether it was his own fault, the fault of the defendant, the first third party or of the second third party. The defendant and both the third parties also allege contributory negligence against the plaintiff. The pleadings of the defendant, the first third party and the second third party also mean, if the plaintiff did not cause the accident, that the Royal Court will have to apportion responsibility between the defendant, the first third party and the second third party.
9. Matters have become complicated however because on 3rd January, 2017, the plaintiff, while on holiday in Madeira, fell down a set of external stairs and suffered further injuries; the plaintiff alleges that this fall was due to his poor recovery from the accident in 2014 and therefore argues that the defendant is liable for the injuries suffered by the plaintiff as a result of the second accident. The plaintiff contends that the injuries flow directly from the injuries he suffered in the first accident. The plaintiff therefore alleges that, but for the first accident and the resulting injuries the plaintiff suffered, the second accident would not have occurred. The defendant, the first third party and the second third party all deny any responsibility for the second accident. They also put the plaintiff to proof of the extent of his injuries as a result of the first accident and, if relevant, the injuries suffered as a result of the second accident.
10. The relevant test as to when to order a split trial was considered in Le Claire v Brown [2014] JRC 187A at paragraphs 13 to 17. There was no disagreement between the parties that these were the applicable legal principles. Rather the disagreement was that Advocate Tremoceiro, for the plaintiff, argued that the split trial should cover who was responsible for the second accident in 2017 as well as for the first accident in 2014. He contended that, without a ruling on responsibility for the second accident, if his client was successful on a preliminary issue in respect to the first accident, his client would still not know which of the defendant or the third parties were liable for the second accident.
11. The defendant and the third parties all argued that the second accident was relevant to the extent of any damages to be recovered by the plaintiff if the arguments in respect of the first accident were unsuccessful. A trial of who was responsible for the first accident would also lead to an apportionment of responsibility between the plaintiff, the defendant and the third parties, because both issues of contributory negligence and third party responsibility would have to be addressed.
12. In my judgment the arguments of the defendant and the third parties are to be preferred. This is for the following reasons applying Le Claire v Brown:-
(i) There is a clear line of demarcation between the first accident and the second accident. The first accident led to issues between all the parties as to who was responsible for the first accident. The second accident by contrast goes to the issue of the amount of damages the plaintiff may recover if the plaintiff did not cause the first accident.
(ii) To accede to the plaintiff's request would lead to different courts hearing arguments on the plaintiff's injuries in order to assess why he fell a second time in 2017 and the extent of his injuries in order to assess what compensation he might recover if liability including causation is established. This is not a clear line of demarcation, would lead to a risk of inconsistent findings and would lead to two different courts having to hear evidence on the same issue namely the extent of injuries suffered by the plaintiff.
(iii) A split trial on who was responsible for the first accident will mean that all the parties will know whether or not the plaintiff in principle is entitled to damages and who will be responsible to meet those damages. This includes the question of contributory negligence. Furthermore, if the court determines that the plaintiff is entitled to recover damages in principle and finds in his favour on who caused the first accident (including addressing the allegation of contributory negligence), this allows the parties an opportunity to negotiate a settlement. While the issue of causation remains in dispute, the prospect of negotiating a settlement will remain much more difficult where the parties all have markedly different views as to who was to blame.
(iv) The issue of damages is also complicated because of the second accident and because of the plaintiff's poor recovery. It was agreed by all the parties that it may be some time before a trial on damages can take place as there is an element of uncertainty about the plaintiff's recovery. Where there remains uncertain prognosis about the extent of the plaintiff's injuries, without a split trial there is a danger of memories fading in respect of an incident that took place in 2014. Ordering a split trial addresses this risk or at least reduces it.
13. I appreciate there is a risk of an appeal which means that a trial on quantum may be delayed further if the matter is appealed. However, the issue of who was responsible for the first accident is primarily a factual dispute. It is well-known that the Court of Appeal is generally unwilling to interfere in findings of fact when the Court of Appeal has not had the opportunity of seeing the evidence of witnesses or parties at first hand. In my judgment the case is also unlikely to be one where there is a significant issue of legal principle being considered for the first time, which would increase the chance of an appeal. The risk therefore of any appeal against the findings of the Royal Court on liability leading to a delay of any trial on quantum is one that is at the lower end of the scale. It certainly is not enough to prevent a split trial being ordered in the first place.
14. The issue I ordered to be determined was also not a hypothetical legal issue where the Royal Court and the Court of Appeal have both given warnings, as noted in Le Claire v Brown, about the dangers of taking discrete points of law in isolation. The present dispute is one that goes directly to the issue of whether or not the defendant is liable to the plaintiff and if the defendant is liable whether the defendant has a right of indemnity in whole or in part from either of the first or second third parties. A more direct way of putting matters may be is that the split trial I ordered to take place will determine who caused the accident in 2014. If the accident was the responsibility of the defendant, the first third party or the second third party a split trial will lead to the allocation of responsibility between them as well as addressing the issue of contributory negligence.
15. Finally, to order a split trial in the way I have described is consistent with the overriding objective and in particular the requirement to deal with cases proportionately, to identify issues at an early date and to decide promptly which issues need full investigation and a trial.
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