BURKE and ASHE CONSTRUCTION Ltd [CA (Civil), 23/05/2003]
| Jurisdiction | England & Wales |
| Judge | Lord Justice Potter,Lord Justice Mummery,Lady Justice Arden |
| Judgment Date | 23 May 2003 |
| Neutral Citation | [2003] EWCA Civ 717 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2002/1961 |
| Date | 23 May 2003 |
[2003] EWCA Civ 717
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SLOUGH COUNTY COURT
(HHJ HARRIS QC)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Potter
Lord Justice Mummery and
Lady Justice Arden
Case No: B3/2002/1961
Mr Patrick Vincent (instructed by Morgan Cole) for the appellant
Mr Lawrence Caun (instructed by Barrea & Co) for the respondent
This is an appeal from the order of His Honour Judge Charles Harris QC made on 5 September 2002 pursuant to s.33 of the Limitation Act 1980 ("the Act") disapplying the limitation period of three years in respect of the claimant's accident at work on 1 July 1994.
The limitation period having expired on 1 July 1997, proceedings were not issued until 19 June 2001 and served on 5 October 2001.
There was no question but that the claimant was early aware of his right. He had formed the intention to sue the defendants and had instructed solicitors to that end well within the limitation period. However, owing to a combination of circumstances, arguably of incompetence on the part of successive solicitors and the doubts raised by the claimant's successive legal advisers as to the prospects of success, proceedings were not issued until almost four years after expiry of the limitation period. However, because it was essentially not in dispute that the plaintiff himself, who was ill-educated and indeed illiterate, was in no way himself to blame and because, as the judge held, the prejudice to the defendants was slight, he made the order which he did in the claimant's favour.
At the time of his accident, the claimant was engaged on a substantial project of the defendants to renovate a number of houses on an estate at Potton Road in St Neots ("the Potton Road site"). The facts of the accident as advanced by the claimant were straightforward and may be taken from the Particulars of Claim.
On 1 July 1994, in the course of his employment, he was required to place a number of newly delivered fascia boards, each approximately 6 inches wide and 15 feet in length (but light in weight), into temporary storage on a raised platform or rack which had been provided for such purposes on the site.
The platform consisted of a number of steel trestles set up at right angles to one of the boundary walls between houses on the site, scaffolding planks being placed in parallel upon the trestles and held in place by metal lugs or short extension tubes arising vertically from the trestles. At the material time, a number of doors were stacked on their long edges, up against each other, almost vertically in front of the platform and resting against the trestles in such a manner that the combined width of their top edges formed in effect an extension of the platform at a somewhat lower level.
Materials stacked on the platform were required to be protected from the elements by a tarpaulin previously provided by the defendants for that purpose which, at the material time, was rolled back up onto the top of the boundary wall to allow access to the platform, its lower edge being secured to the lugs at the back of the platform by the wall. Once the claimant had finished stacking the fascia boards on the trestle platform, he attempted to deploy the tarpaulin. He could not reach up to the edge of the tarpaulin from the ground and according to him no ladder was provided from which to reach it. He therefore climbed on the platform in order to unroll the tarpaulin. Once on the platform, he proceeded to deploy the tarpaulin by pulling it towards him whilst stepping backwards over the fascia boards already stacked on the platform. In the course of doing so he stepped backwards onto the stacked doors, whereupon he slipped and lost his footing. As a result he fell and, in doing so, impaled himself on one of the vertical extension tubes. He was seriously injured in the groin. Further the accident provoked the onset of arthritic changes in his right hip which had previously been asymptomatic and he has since been considerably disabled.
The Particulars of Claim allege various breaches of statutory duty under a number of statutory regulations pleaded as applicable to the claimant's work, as well as common law negligence on the part of the defendants. The gravamen of the allegations was that the defendants had failed to make a suitable assessment of the task which the claimant was asked to perform and, in particular, that he would need safe access to the tarpaulin in respect of which no safe means of access had been made available. In particular, the defendants had not provided him with a ladder for the purpose of access and effectively required him to climb upon a platform which was not safe for that purpose, both in the light of the conditions as described and the necessity or likelihood that he would step back on the doors when handling the tarpaulin. It was also complained that the vertical lugs were not capped or cushioned in any way and were liable to cause injury if anyone, and in particular the claimant, slipped or fell on or from the platform.
As agreed before the judge and in this court, the claim concerned a straightforward and uncomplicated case of an accident at work. The judge, who gave a reserved judgment, put it in this way:
"The issue is a very simple one. Were the Defendants negligent or in breach of their statutory duties in causing or permitting him to climb via the stacked doors, if that is what he did? Did he need to climb at all? Could the job have been done from the ground? If not, was a ladder or other safe access available?
This is the sort of case which used to be litigated in very large quantities. With a fair wind and a sympathetic judge the claimant might have established liability. On the other hand, if it could be shown that he should not have climbed up, or that there was a ladder, or that he knew or ought to have known that the doors might be unsafe, then the defendants might either avoid liability altogether, or the claimant be found to be partly to blame …
Overall it was the sort of case which experienced plaintiff personal injury solicitors would be likely to have run, very probably hoping to settle."
Having consulted solicitors, 18 months after the accident the claimant obtained legal aid up to the obtaining of counsel's opinion and a letter of claim was written on his behalf. The subsequent history of the matter was explained in detail in the affidavit of the claimant's succeeding solicitors. The essential pattern of events as set out in the judgment was as follows.
On 23 April 1996 liability was denied. Having obtained a second medical report in September 1996 under the Legal Aid Certificate the claimant's solicitors wrote to him stating that in their view he did not have a case. However, advice from counsel was obtained on 12 June 1997, in which counsel (Dr Jenkins) stated that she was of the opinion that there were great difficulties in this case. She said "I feel that both liability and causation will be difficult to establish and, indeed, I put the chances of doing so at less than evens." However, she added that different counsel might well take a different view and that "I am anxious that the plaintiff's position be protected with regard to the end of the limitation period." She advised issuing a writ prior to 30 June 1997.
Having obtained that advice the claimant's solicitors tried and failed to get legal aid extended for the purpose of obtaining a different opinion. No writ was issued and the limitation period expired.
In January 1998 the claimant consulted a second firm of solicitors, Hetherington & Co. They too failed promptly to issue a writ against the defendants but rather took what the judge described as "leisurely steps" to consider whether there was a cause of action against the first solicitors. In November 1998, having obtained an engineer's report which was strongly optimistic on liability, they consulted different counsel and in April 1999 obtained an opinion from him expressing the view that the claimant had a better than 50% prospect of success. He also stated that, while he disagreed with Dr Jenkins' assessment of the claimant's case he did not think that her overall advice was so wrong as to be negligent and that in the light of that advice he did not think it was negligent of the first solicitors not to finance the issue of a protected writ (not being covered at that stage by legal aid). Finally he stated that, given the time that had elapsed between the date of the accident and his advice, he very much doubted that a s.33 application would succeed, although it might have succeeded in 1997.
Hetheringtons were unhappy with counsel's opinion to the extent that they considered it was insufficiently optimistic. They invited him to reconsider his opinion but did not issue a writ. Further time went by.
In January 2000 yet further counsel, Mr Richards was consulted. He concluded that there was an arguable case in negligence against the first counsel and that the first solicitors were not negligent. He considered that an application under s.33 stood a reasonable prospect of success and advised that legal aid be revised to allow the claimant to issue, but not to serve, a claim form. That was not achieved. On 19 March 2001 Mr Richards again advised that legal aid be extended to allow the claimant to sue the defendants and on this occasion it was granted. On 19 June 2001 proceedings were at last issued, some 7 years after the accident and some 3 1/2 years after the instruction of the claimant's second...
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