Dummer v Brown
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SINGLETON,LORD JUSTICE JENKINS,LORD JUSTICE MORRIS |
| Judgment Date | 15 April 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J0415-3 |
| Court | Court of Appeal |
| Date | 15 April 1953 |
[1953] EWCA Civ J0415-3
Lord Justice Singleton
Lord Justice Jenkins and
Lord Justice Morris
In The Supreme Court of Judicature
Court of Appeal
MR. STEPHEN CHAPMAN (instructed by Messrs. Berrymans) appeared on behalf of the Appellants (Defendants).
MR. NIALL Mac Dermot (instructed by Messrs. Fletcher, Napper & Co) appeared on behalf of the Respondent (Plaintiff).
This is an appeal by the Defendant in the action against an Order of Mr. Justice McNair made on the 13th March of this year. The Plaintiff in the action is Mrs. Dummer who sues as administratrix of her late husband and on her own behalf. The Defendants are Mr. Benjamin Hugh Brown, the owner of a motor coach, and Mr. Albert Claude Sell, the driver of the coach, who was employed by the first Defendant. According to the Statement of Claim, Mr. Dummerwas travelling as a passenger in the first Defendant's motor coach along Bromham Road at Gallows Corner in the County of Bedford, when the motor coach collided with a telegraph pole on its offside of the road and Mr. Dummer was thrown from the coach on to the ground so that he received injuries from which he died the same day. At the time of this accident, the second Defendant, Mr. Albert Claude Sell, was the driver of the coach. He was an employee of Mr. Brown, the first Defendant. It is alleged in paragraph 3 of the Statement of Claim that the accident and the death of Mr. Dummer were due to negligence on the part of the second Defendant, who, at the time, was acting as servant or agent of the first Defendant, and particulars of negligence were given. The particulars required by the fatal Accidents Act 1846 are set out.
The Defence, which was delivered on the 6th February, 1953, puts the Plaintiff to proof of the matters alleged in paragraphs 1,4 and 5 of the Statement of Claim. Paragraph 2 reads: "Save that on the day alleged a motor coach belonging to the first Defendant was being driven by the said second Defendant along Bromham Road in the County of Bedford no admissions are made of any of the matters alleged in paragraph 2 of the Statement of Claim. (3) The Defendants deny that they were negligent as alleged, or at all. (4) The damage and loss alleged are denied and save as is expressly admitted herein each and every allegation made in the Statement of Claim is denied as though each of them were here set out and separately traversed". It used to be taught that one object of the Pleading was to let the other side know what your case was. That practice may not have been followed at all times. It certainly could be said of this Defence (which was not settled by Mr. Chapman), that it tells no one anything. It puts everything in issue except that the coach was on the highway and no one can tell from the Defence what case the Defendant will put forward upon trial or what the issues are. It may be said, as Mr. Chapman in his argumentput it, that the Defendants were saying, "The onus is upon the Plaintiff; let the Plaintiff prove her case. We are entitled to put everything in issue", and that is what they did.
The Statement of Claim was delivered with the Writ. Order 3 Rule 6 provides that that can be done, an amendment of the Rule which was made in the year 1933 following, I think, upon the report of the Hanworth Committee. This claim was within Order 3 Rule 6(4).
On the 20th February, the Plaintiff launched an application under Order 14 that she be at liberty to sign judgment in this action against the Defendants, damages to be assessed by a writ of Enquiry. The Master, Master Baker, dismissed that application. The Plaintiff appealed to Mr. Justice McNair in Chambers and the Order of Mr. Justice McNair is, "It is ordered that the said appeal be allowed and that the Plaintiff be at liberty to sign Judgment against the Defendant for damages to be assessed and costs, including the costs of this appeal, to be taxed". The Defendants appeal against that Order of Mr. Justice McNair, and Mr. Chapman, on their behalf, submits that the Order of the Master was right and that the Order of Mr. Justice McNair should be set aside. It is to be observed that upon that application it was asked that the damages should be assessed by way of a Writ of Enquiry. It was pointed out to this Court that under Order 14 Rule 7 the assessment of damages may be made in such way as the Judge may direct.
The application of the provisions of Order 14 Rule 1 to an action for damages under Lord Campbell's Act or, indeed, to any motor car accident case, strikes one, at first, as unusual, to say the least. I do not know that the procedure has ever been applied until this case. It may have been, but I have never heard of it and I cannot find that there is any record of it. None the less, if it is right there is no reason why it should not be adopted merely because it has notbeen adopted until now.
Order 14 Rule 1 reads: "Where the defendant appears to a writ of summons specially indorsed with or accompanied "by a statement of claim under Order 111, Rule 6, the Plaintiff may on affidavit made by himself or by any other person who can swear positively to the facts, verifying the cause of action and the amount claimed (if any liquidated sum is claimed), and stating that in his belief there is no defence to the action except as to the amount of damages claimed, if any, apply to a Judge for liberty to enter judgment for such remedy or relief as upon the statement of claim the Plaintiff may be entitled to. The Judge, thereupon, unless the Defendant shall satisfy him that he has a good defence to the action on the merits or shall disclose such facts as may be deemed sufficient to entitle him to defend the action generally may make an order empowering the Plaintiff to enter such judgment as may be just, having regard to the nature of the remedy or relief claimed". The amendment to Order 3 Rule 6 in the year 1933 brings the possibility of this class of claim being dealt with under Rule 14 Rule 1 into being. The wording of the Rule is sufficiently wide to cover it but one thing which is clear is that the granting of the request of the Plaintiff that he should have summary judgment is discretionary in the Judge: a Judge may make an Order. Order 14 was intended as a means by which the Plaintiff could obtain speedy judgment when a Defendant had no Defence or when a Defendant had nothing that looked like a Defence. It is said by Mr. Mac Dermot on behalf of the Plaintiff that in the circumstances of this case there is no answer to the Plaintiff's claim except as to the amount of damages which should be awarded and he submitted to this Court that the Order of Mr. Justice McNair was right and that if this practice was followed considerable costs would be avoided. I am not sure that this is wholly right. I do not think it is wise that in a case under Lord Campbell's Act the damages should beassessed by a Sherriff's Jury. Apart from the amount of the damages, there arises in such a case the apportionment of damages. I think it is better in such a case, a case of difficulty, that the damages should be assessed by a Judge of the High Court. Thus I regard it as desirable that the case should in any event remain or trial in the High Court. If it is said that the costs or the trial will be much less if the question of liability is disposed of, again I am not so sure that that follows. I do not think that it would be necessary for the Plaintiff to have many witnesses as to facts, if the Plaintiff was armed at the trial with evidence that the coach in which the deceased man was riding went to its wrong side of the road and struck a tree or telegraph pole, and was also armed with proof of the conviction on his own confession of the motor coach driver on a charge of dangerous driving. I ought to say that we were told that the driver was prosecuted on a charge of manslaughter and committed to the Assizes at Bedford upon that charge. But after some discussion it was decided he should plead guilty to the charge of dangerous driving. He did so and he was sentenced to imprisonment and was disqualified from driving for a considerable period. Thus it looks as though there was negligence on the part of the Defendant's driver. Mr. Chapman, in the course of his argument, told us that the Defendant's driver was acting within the scope of his employment. Upon that it appears as though a case can be made against the employer as well.
Mr. Mac Dermot put the case in support of the Order of Mr. Justice McNair in this way. He said, "I have proved that there was an admission of dangerous driving on the part of the second Defendant and it is agreed that that dangerous driving occurred at the time that Mr. Dummer was killed. I have thus given evidence of negligence on the part of the driver and that entitles me to judgment against the driver on his plea of guilty which is an admission by him. If I amentitled on behalf of the Plaintiff to judgment against the driver it follows", said Mr. Mac Dermot, "that the employers are vicariously responsible and I am entitled to judgment against them too". That seems to me to raise a position of some little difficulty, On a trial the employers could have objected that the admission of the driver was not evidence against them for he was not their agent to make admissions. There would remain not only that question to be decided, but if the evidence was received and admitted and if it was decided upon that admission that the driver was responsible in damages, there would remain the question of vicarious responsibility on the part of the employers. It is aid that Order 14 Rule 1 does not provide suitable procedure for determining that question and that the Court ought not on this procedure to give judgment against the employer even if it thought that a judgment against the driver himself was warranted. Those are some of the...
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