Fox v H. Wood (Harrow) Ltd

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE ORMEROD,LORD JUSTICE DIPLOCK,LORD JUSTICE DANCKWERTS
Judgment Date03 July 1962
Judgment citation (vLex)[1962] EWCA Civ J0703-1
Docket Number1961 F. No. 1960.
Date03 July 1962

[1962] EWCA Civ J0703-1

In The Supreme Court of Judicature

Court of Appeal

Before:

Lord Justice Ormerod

Lord Justice danckwerts and

Lord Justice Diplock

1961 F. No. 1960.
Fox
and
H. Wood (Harrow) Limited

DR. J. PLATTS-MILLS (Instructed by Messrs. Edward Mackie & Co.) appeared as Counsel on behalf of the Appellant (Plaintiff).

R. A. K. ALLEN (instructed by Messrs. Stanley & Co.) appeared as Counsel on behalf of the Respondent (Defendant).

LORD JUSTICE ORMEROD
1

I will ask Lord Justice Diplock to give the first Judgment.

LORD JUSTICE DIPLOCK
2

This is an appeal and cross-appeal from an Order of Mr. Justice Glyn-Jones, ordering particulars in an Ordinary industrial accident case. The appeal by the Plaintiff isagainst the refusal by the learned Judge to order particulars of two allegations of contributory negligence.

3

The nature of the action is that the Plaintiff is suing his employers for injuries which he sustained when he fell by putting his foot into a hole at some pre Rises where he was Working during the course of his employment, and, not surprisingly, the defence of contributory negligence alleged. In effect, that he was not looking where he was going. But it set out rather more elaborately these allegations in paragraphs (c) and (d), and the particulars of the contributory negligence are these: "(c) failed to avoid stepping into the said opening when he knew or ought to have known of Its existence; (d) stepped Into a hole in the floor boards when he knew or ought to have known of Its presence". The learned Master ordered particulars to be given of the facts or circumstances from which the Plaintiff ought to have known of the opening, and like particulars of what he ought to have known of the hole. The learned Master, in ordering those particulars, said that the practice was that, while an allegation that a plaintiff knew something does not invite particulars, an allegation that he ought to have known does, and particulars are normally ordered.

4

The learned Judge confirmed in his judgment the Master's experience that particulars, where asked, were normally given of an allegation that a plaintiff or a defendant ought to have known something; but the learned Judge took the view that the expression "ought to have known" is often a phrase employed In pleadings, meaning no more than that the person concerned knew, and the learned Judge invited an appeal in this case so that the Court of Appeal could express a view as to the propriety of demanding and granting particulars of means of knowledge.

5

In my Judgment, the learned Mister was right in ordering particulars of the facts and circumstances from which the Plaintiff ought to have known of the opening or the hole. Mr. Allen has argued that an allegation that someone ought to have known something, like an allegation that someone knew something, is an allegation of a condition of mind, and that therefore, under Order 19, Rule 22, particulars ought not to be granted. It seems to me that that proposition is an erroneous one. An allegation that a person ought to have known something has implicit in it not only an allegation that he did not know something, which is a state of mind, but also an allegation that facts an circumstances exist from which he ought to have acquired, either by observation or by inference, the knowledge of which he is deficient, and that some fault. in this case amounting to contributory negligence, like upon him in falling to note,...

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