Day v Royal Automobile Club Motoring Services Ltd
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE BUTLER-SLOSS,LORD JUSTICE WARD |
| Judgment Date | 29 October 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J1029-8 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CCRTI 98/0646/2 |
| Date | 29 October 1998 |
[1998] EWCA Civ J1029-8
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CANTERBURY COUNTY COURT
(HIS HONOUR JUDGE NASH)
Royal Courts of Justice
Strand
London WC2
Lady Justice Butler-Sloss
Lord Justice Ward
CCRTI 98/0646/2
MR J BELL (Instructed by Davies Arnold Cooper, London, EC4Y 8DD) appeared on behalf of the Appellant
MR H TRUSTED (Instructed by Gambrills, Kent, CT20 1TD) appeared on behalf of the Respondent
I will ask Ward LJ to give the first judgment.
This is an appeal against the order of His Honour Judge Nash sitting in the Canterbury County Court on 6 March 1998 when he dismissed the appellants' appeal from the District Judge who had in turn dismissed the appellants' application to set aside a judgment signed against them on 30 October 1997 in default of their having filed their defence.
The plaintiff, Mrs Day, claims damages for the financial loss she has suffered and may continue to be suffering and for the personal injuries that she sustained when she fell from a pick-up truck which the defendants, the RAC, had sent to deal with the emergency which beset the plaintiff and her husband when their car broke down somewhere on the road from London to Deal in Kent. These events took place as long ago as 5 November 1993. The plaintiff's case, according to the Particulars of Claim, is that after the breakdown they called the RAC and the RAC procured a pick-up truck which was not, it seems, owned by them but was procured from one of the service stations with whom they have an arrangement. The car could not be repaired and the driver of the truck volunteered to take the plaintiff and her husband and their motor car back to London. The plaintiff's case, as set out in the Particulars of Claim, is that her husband travelled in the front of the truck next to the driver. She was asked to travel in the back of the cab behind the driver's seat on what she describes as "a wooden plank". She says (I read again from paragraph 4 of the Particulars of Claim):
"The plaintiff was required, in order to get out of the truck, to squeeze between the driver's seat and the side of the truck. In the course of doing so the Plaintiff's clothing caught, and ripped, on a nail or other sharp object in the truck; and she lost her balance, falling from the truck onto the ground."
The allegations of negligence are particularised and they are as follows:
"(a) Failed to provide a safe means of access, from behind the driver's seat, out of and down from the truck.
(b) Caused, permitted or required the Plaintiff to squeeze between the driver's seat and the side of the truck, which said means of getting out of the truck was awkward and thereby unsafe.
(c) Failed to provide a hand rail for the assistance of persons attempting to [get] out from behind the driver's seat of the truck.
(d) Failed to provide a foot plate for the assistance of persons getting out of and down from the truck.
(e) Caused, permitted or allowed there to be and/or remain a nail or other sharp object in the truck which was liable to and did catch on the Plaintiff's clothing, thereby causing her to lose her balance. (f) Failed by their servant or agent the driver of the truck to give any assistance to the Plaintiff as she attempted to get out of and climb down from the truck."
There are then more general allegations of a failure to have any regard for her safety and give her any adequate care. It seems from the chronology we have that the first notification of this claim was given to the defendants, the RAC, as late as 30 October 1996, only days before the limitation period expired. The summons was not issued until 4 November, the day before the time bar would have fallen on this claim.
Solicitors were instructed on behalf of the defendant and there was an agreement between solicitors to allow a general extension of time for the filing of the defence, that agreement to be terminable on 14 days' notice. There was apparently some correspondence between solicitors and then the defendants' solicitors allowed the RAC to deal with matters themselves. Notice calling for the defence was apparently given on 8 October, requiring the defence to be filed by 22 October 1997. The solicitors were reinstructed on 17th. There was a muddle in their office and they gave inadequate attention to the preparation of the defence. As a result, judgment was entered, as I have indicated, on 30 October and on 21 November the defendants applied to the District Judge to set it aside. That application was supported by an affidavit which was sworn by a trainee solicitor in the employment of the defendants' solicitors who incidentally may not be the solicitors who now act for the RAC. That affidavit deposed to the reasons for the muddle and endeavoured to explain the failure to put in a defence on time, but it gave no evidence of the merits of the defence and little could be discerned from the draft defence which was exhibited to that affidavit because that proffered pleading did little more than traverse the allegations in the Particulars of Claim and, in addition, allege some contributory negligence. Perhaps not surprisingly the District Judge refused to set it aside.
The matter then went on appeal to His Honour Judge Nash, supported this time by an affidavit from a solicitor in the office who had the conduct of the action on the defendants' behalf. She deposed to the merits and stated that she had spoken to the area service manager of the defendants, who was responsible for the service contractor they employed on the day or night of 5 November when this injury was sustained by the plaintiff. The affidavit is therefore hearsay. It may perhaps in part be double hearsay, but, this being interlocutory, it was acceptable for the purpose for which it was tendered and the judge later so held. In that affidavit it is revealed that the truck concerned was inspected on 15 November 1996, which was reasonably soon after the claim had first been intimated—a fortnight or so previously. It is said that there was no wooden plank and that the vehicle was a Ford Transit fitted with a crew cab with seating capacity for six people, including the driver. It is asserted that a custom-built cab incorporated a rear bench style seat with a proper back support spanning the width of the vehicle and the matting was non-slip rubber matting which was secure.
Dealing with the allegation in the Particulars of Claim that the plaintiff had to squeeze between the driver's seat and the side of the truck and that she caught her clothing and tore it on a nail or some other sharp object, the affidavit deposed to the fact that the vehicle was so constructed that the front seats had the usual tilt mechanism to allow the rear passengers access and that it was:
"designed for easy access to both drivers and passengers by incorporating into the build a recess step at both of the doorways. This step also has a factory fitted non-slip plastic moulding, moulded to the step, secured for safety reasons."
I shall read paragraph 14 in detail:
"Mr Davies further informed me that the vehicle is custom built and at the time of his inspection there was nothing sharp protruding from the vehicle which could have caught the Plaintiff's clothing. The vehicle had not been changed from the date of the accident in 1993 to the inspection three years later in 1996 and facilities for an inspection by the Plaintiff will be available within these proceedings."
Consequently it is suggested that as there was a moulded handle at the back of the front seat for use by passengers in the rear and an armrest handle, there was sufficient provided for safe exit from the vehicle.
In the light of that, a defence was duly filed in which the particular allegations in the Particulars of Claim were properly denied and the plaintiff's case as to the condition of the cab precisely set out. The allegations of contributory negligence were pleaded against the plaintiff in these terms (page 12):
"(a) [She] Failed to look where she was going.
(b) Failed to place her feet carefully.
(c) Rushed to disembark from the truck.
(d) Failed to take sufficient or any care to determine the safest method of disembarkation from the truck.
(e) Failed to consider alternative methods of disembarking from the truck.
(f) Failed to seek assistance in order to disembark from the truck."
The case came before the judge who, in the exchanges with counsel, expressed his displeasure at the way in which a reputable defendant, such as the RAC, had cavalierly conducted the conduct of the defence. His criticisms of the lack of concern given in the early stages is well justified. However, when it came to dealing with the matter before him, he gave his judgment in these terms (page 21):
"What has been demonstrated before me on the defendants' affidavits is an arguable defence. It is on one view a defence which can only be resolved by the trial judge. It is a question of fact."
With that, I would entirely agree, save only that, in my judgment, that is not just one view of this defence but on any view of this defence the issues can only be resolved by the trial judge because they raise questions of fact which only the trial can satisfactorily establish. The judge went on to ask himself properly (page 22):
"Is an arguable defence enough?"
He then recited the submissions of counsel who then appeared on the appellants' behalf in the court below—not Mr Bell who appears today and, for whose short submissions I am indebted. He recited the submission...
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