Fookes v Slaytor

JurisdictionEngland & Wales
JudgeSIR DAVID CAIRNS,LORD JUSTICE ORR,LORD JUSTICE STAMP
Judgment Date09 June 1978
Judgment citation (vLex)[1978] EWCA Civ J0609-2
Date09 June 1978
CourtCourt of Appeal (Civil Division)

[1978] EWCA Civ J0609-2

In The Supreme Court of Judicature

Court of Appeal

(On Appeal from Lambeth County Court)

Before:

Lord Justice Stamp

Lord Justice Orr and

Sir David Cairns

Between:
Robin Fookes
(Appellant)
and
Christopher Slaytor
(Respondent)

R. A. JEFFREYS (instructed by Messrs. Russell Jones & Walker) appeared on behalf of the Appellant.

THE RESPONDENT did not appear and was rot represented.

SIR DAVID CAIRNS
1

This is an appeal from a judgment of His Honour Judge McDonnell given in Lambeth County Court on 27th June last year. It was a judgment delivered in an action arising out of a collision between two motor vehicles. The plaintiff, the driver of one of the vehicles, had suffered personal injuries. He claimed damages for negligence and the learned judge awarded damages in the sum of £398.66 with the appropriate costs. He had found that, the full amount which would be required to compensate the plaintiff for his suffering and his. special damage would be the sum of £598, but he went on to find that the plaintiff was guilty of negligence which contributed to the accident and therefore reduced the damages by one third. The plaintiff appeals, contending that the learned Judge had no jurisdiction to make that reduction in the damages.

2

The accident took place on 21st November 1974. Driving a motor vehicle in a London street, the plaintiff came into collision with the rear of the trailer of an articulate vehicle which was parked by the side of the road. It was during the hours of darkness, the weather was bad and the defendant's vehicle was unlighted.

3

The plaintiff commenced his action against the driver and the owners of the motor vehicle. The owners filed a defence alleging that the driver of their vehicle was not acting as their servant or agent at the time. The driver defendant filed no defence. The plaintiff then issues notice of discontinuance against the owners. At that stage the driver defendant had not delivered a defence. An application was made to the Registrar for an order for the delivery of a defence by him within a stated time and the Registrar ordered that he should deliver a defence within seven days and if he failed to do so he should be debarred from defending. He did not deliver any defence. He was therefore debarred from defending. He was given notice of the date and time of the hearing in the CountyCourt but he did not attend. The plaintiff gave evidence describing the accident as well as he could, having regard to the fact that he suffered from retrograde amnesia, and further gave evidence of the nature of his injuries. That evidence was supported by a doctor's report. It was contended by counsel Mr. Jeffreys, who appeared in that court for the plaintiff and has appeared for him in this Court, that in those circumstances the learned Judge was not entitled to reduce the damages on the grounds of contributory negligence, because no such matter was in issue, the defendant having delivered no defence and having been debarred from defending. The learned Judge did not accept that contention. There is no indication in his judgment as to the view he took about it. It is implied that he rejected it because he simply said:

4

"I reach the conclusion that the plaintiff must have been contributory negligent and that the blame for the accident should be apportioned as to one-third to the Plaintiff and two-thirds to the defendant."

5

There appears to be no direct English authority upon the question of whether in the absence of a pleading of contributory negligence the court has jurisdiction to make a finding that there was such negligence on the part of the plaintiff. Contributory negligence is dealt with, so far as the Statute Law; is concerned, in the Law; Reform (Contributory Negligence) Act, 1945, section 1(1) which provides:

6

"Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable, having regard to the claimant's share in the responsibility for the damage."

7

That leaves open the question of whether the court can only make a finding of contributory negligence if there is a plea to that effect. The nearest case that the researches of counsel have been able to discover is the Scottish decision in Taylor y. Simon Carves Ltd, a decision of the Sheriff-Substitute sitting at the Sheriff Court of the Lothians and Peebles at Edinburgh, reported in 1958 Scots Law; Times, Sheriff Court Reports at page 23. The head note reads as follows:

8

"In a jury trial arising out of an accident to a workman, his employers' counsel intimated, prior to opening his case, that he was not insisting in a plea of contributory negligence. The plea was not thereafter mentioned by counsel or.-the presiding judge. The jury, after retiring, requested guidance from the Court, since they were of the view that both parties were to blame for the accident.

9

Held, that the jury must be directed that if they found the defenders to blame for the accident they should pay no regard to any fault on the part of the pursuer".

10

In the course of his judgment, or what was described in the report as a note added to the final interlocutor, the Sheriff Substitute said on page 23:

11

"Alternatively the...

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