Griffiths v Evans
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SOMERVELL,LORD JUSTICE ROMER |
| Judgment Date | 10 November 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J1110-1 |
| Court | Court of Appeal |
| Date | 10 November 1953 |
Lord Justice Somervell,
Lord Justice Ding and
Lord Justice Romer
In The Supreme Court of Judicature
Court of Appeal
Mr. E. Ryder Richardson, Q.C., and Mr. John Garrard (instructed by Messrs. W. H. Thompson) appeared as Counsel on behalf of the Appellant (Plaintiff).
Mr. E. W. Eveleigh and MR. O. B. Popplewell (instructed by Messrs. William Charles Crocker) appeared as Counsel on behalf of the Respondent (Defendant).
This is an appeal from a decision of Mr. Justice Croom-Johnson in which the Plaintiff claimed damages for negligence against a solicitor. The learned Judge found for the Defendant but assessed damages in case the Court of Appeal should reverse his decision on liability. The Plaintiff appeals and submits that the learned Judge was wrong on both liability and quantum.
The Plaintiff worked as a Cupola Charger for Messrs. John Thompson (Wolverhampton) Limited. On 3rd February, 1947, he had on accident while at work. In his Statement of Claim he alleges that the accident was occasioned by the negligence or breach of statutory duty of his employers, and that is admitted for the purposes of these proceedings. I will read paragraph 5 which sets out his complaint against the Defendant. "In or about the months of March or April 1947 the Plaintiff consulted the Defendant professionally to advise him, the Plaintiff, in respect of his accident hereinbefore described and it was accordingly the duty of the Defendant to consider as to whether the Plaintiff had a claim for damages at common law against his said employers or whether his claim was limited to one under the provisions of the Workmen's Compensation Acts 1925 to 1943. The Defendant negligently failed to consider or if he did consider negligently failed to advise the Plaintiff as to his common law rights and was content that the Plaintiff should receive compensation pursuant to the said Workmen's Compensation Acts". Then it goes on to allege that he had lost his cause of action.
The Defence was that the Defendant had not been asked to advise in respect of the accident but simply as to the amount of compensation under the Workman's Compensation Acts. This will become clearer when I refer to the Defendant's evidence. The Plaintiff was in hospital and his foot or leg were in plaster-of-paris for some time and the effects of the accident continue. The employer made weekly payments, at what was calculated to be the maximum rate under the Act, from the time of the accident until July. The Plaintiff's evidence was that he had asked the Defendant some six weeks after the accident to take his case on. The Defendant's account differs both as to the date of the first visit and the instructions he received. It is plain from the learned Judge's Judgment that he accepted the Defendant's sworn evidence in full, which was, indeed, both as to the date and as to the instructionscorroborated by the Defendant's own record. The question is whether on his own evidence and record he was guilty of negligence. The Plaintiff went to see the Defendant first on the 11th July. 1947, some five months after the accident. He was at that time, as I have stated, receiving the maximum under the Act but had reason to believe that these payments were about to be reduced in amount. I will read the Defendant's own account of the matter. "(Q) Will you tell his Lordship what it was that Mr. riffiths asked you to do for him? (A) Mr. Griffiths consulted me about his workmen's compensation — his weekly payment — as he was under an impression that there was going to be some reduction, or some alteration in the amount. I took details of his accident, etc., as I always did in a workmen's compensation matter, and as he has said here I told him, as he was receiving the maximum compensation, to carry on receiving that amount, and should there be any difficulty or any question arise to report to me immediately. (Q) Did he at any time ask you to advise him generally as to his rights against his employers? (A) Never in any shape or form. The whole gist of this matter was urely the amount of his weekly payments of compensation and, a little later on, to negotiate to try to settle for a lump sum — the usual run of most workmen's compensation cases. MR. JUSTICE CROOM-JOHNSON: Did that come to anything? (A) It was unsuccessful. The limit to which I arrived with the insurance company, by way of a safe maximum, was £250, and the man, quite rightly, wanted much more. His idea was a thousand pounds. (Q) So those broke off? (A) Yes. The matter was still proceeding when the man came one morning into my office and said could he have his papers as his union were then going to take up the matter for him, and then Messrs. Thompson's came on the scene. MR. EVELEIGH: And was that in July of 1950, some three years after he first saw you? (A) Yes, I think so. The date on the letter will prove that".
Before citing some of the answers from the cross-examination I will refer to the Instruction Sheet. After the name of the employers these words occur: "Wire rope of lift broke — I came down on lift with barrow — Compound fracture os calcis — Mr. Freeman at hospital — He says never be able to do this work again". There then followed the name of the Midland Employers which refers to the insurers and a reference number. Then are the words "paying Comp. £2. 15s. " and, in capital letters, "Wait". Mr. Evans, in advising the Plaintiff to wait, of course had in mind Section 12 of the Act of 1925. In fact, on the 30th July a notice under Section 12(3) was received by the Plaintiff who consulted the Defendant and negotiations were carried on as to the quantum of the payment from time to time.
It is submitted, on the part of the Plaintiff, that the reference to the breaking of the rope should have put the Defendant on enquiry. He should have followed up the question as to whether the Plaintiff had not a claim under the Factories Act or Common Law and whether he had considered the matter and realised the alternative possibility. The Plaintiff had not considered the matter, nor had he had any previous advice. Reliance is placed by the Plaintiff on an answer given by the Defendant when he said that the breaking of the rope might well indicate negligence. As to his state of mind when he was taking down the facts which appear on the Instruction Sheet I will read three questions and answers in his cross-examination. "MR. RYDER RICHARDSON: If this employer had been very careless, did it occur to you that the workman would have a right to common law damages? (A) At that time that proposition did not enter my mind. (Q) Why not? (A) As the man only discussed with me the question of his weekly payment of compensation and the possibility of some interference with it. (Q) But why did it not occur to you that he probably had a common law right?(A) I am telling you the fact as it was in my mind at that time. It did not come into my mind because the man was discussing with me the question of his weekly payments of compensation, and there was some possibility of some interference with those weekly payments". It was later suggested to him that he had considered the possibility of a claim at common law but had not pursued it believing that the acceptance of the weekly payments over some months would have precluded the Plaintiff from claiming. He did not agree with that. His mind had not reached that stage.
The learned Judge found that the Defendant was not guilty of negligence. It is submitted that that decision was coloured by the learned Judge's assumption that the Plaintiff had already lost his rights at common law by accepting the payments. That, of course, was assumed to be the law over a long period but it had ceased to be so in 1947 as a result of decisions to which I will refer in a moment. There is a passage, perhaps more than one, which indicates that the learned Judge was proceeding on this basis, and this might well have coloured his finding as to negligence. In any case, however, where, as here, the Defendant's evidence is accepted in full and an Appellant is prepared to argue his case on the basis that the Defendant made a favourable impression on the Judge, the difficulties which sometimes arise when this Court is asked to reverse a finding of negligence or no negligence are absent. It is, I think, unnecessary to read Section 29 of the Act of 1925 which confers the option to proceed at common law or for compensation. In Selwood and Townley, 1940 I King's Bench page 180, this Court held that as the workman had been paid compensation known to be such under the Workmen's Compensation Act, even although he had made no claim for compensation, he was precluded under Section 29 sub-section (1) of the workmen's compensation Act from recovering damages from his employers at common law. In 1940 I King's Bench page 180, this Court held that as the workman had been paid compensation known to be such under the Workmen's Compensation Act, even although he had made no claim for compensation, he was precluded under Section 29 sub-section (1) of the workmen's compensation Act from recovering damages from his employers at common law. In 1940 I King's Bench page 180, this Court held that as the workman had been paid compensation known to be such under the Workmen's Compensation Act, even although he had made no claim for compensation, he was precluded under Section 29 sub-section (1) of the workmen's compensation Act from recovering damages from his employers at common law. In Young and the Bristol Aeroplane Company Limited. 1946 Appeal Cases page 163, Section 29,was considered. The workman in that case had accepted payments, without knowing of his rights at common law, over a period and this would have barred his claim at common law if Selwoods case had been rightly decided. At a later period he had come to...
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