Henderson v Temple Pier Company Ltd
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE BRACEWELL,LORD JUSTICE BELDAM,or |
| Judgment Date | 23 April 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0423-13 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CCRTI 97/1541 CMS2 |
| Date | 23 April 1998 |
[1998] EWCA Civ J0423-13
Lord Justice Beldam
Mrs Justice Bracewell
CCRTI 97/1541 CMS2
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MAYOR'S AND CITY OF LONDON COURT
(HIS HONOUR JUDGE SIMPSON)
Royal Courts of Justice
Strand
London WC2
MR G BURRELL QC with MR J LEVY (Instructed by Messrs Shaw & Croft, London EC3A 7BU) appeared on behalf of the Appellant
MR D BALCOMBE (Instructed by Messrs S rutter & Co, London EC2M 5QQ) appeared on behalf of the Respondent
Thursday, 23 April 1998
On January 28th 1993 the plaintiff Miss Gennifer Henderson, who is the respondent to this appeal, intended to visit a bar and restaurant known as the No 1 Yacht Club, which was situated on board a ship "St Katherine". This vessel was moored on the Thames river by Temple Pier, Victoria Embankment London, and was connected to Victoria Embankment by means of a metal gangway, which moved up and down with the tide. As the plaintiff walked down the gangway in order to board the ship, she alleges that she slipped and fell thereby sustaining personal injuries and loss.
By particulars of claim dated April 30th 1997 and subsequently amended, the plaintiff claimed damages arising out of the accident against the defendants Temple Pier Company Ltd, who are the appellants in this appeal, and who were sued as owners and occupiers of the vessel and the metal gangway.
The Particulars of Claim anticipated that the defendants might raise the defence that the plaintiff's claim was statute barred under section 11 Limitation Act 1980, and averred that the plaintiffs date of knowledge was not more that 3 years prior to the commencement of proceedings. Particulars were given that until July 1994, the plaintiff did not know that at the material time, the defendants were the owners and occupiers of the ship and the gangway, and was unaware of the correct identity of the defendants until that date.
The defendants by their defence did allege that the plaintiff's claim was statute barred pursuant to Section 11 Limitation Act 1980, proceedings having been commenced more than 3 years after the accident and/or after the cause of action accrued.
By notice of application dated August 6th 1997 the defendants applied for an order that:
1. The plaintiff's cause of action was and is statute barred pursuant to the provisions of section 11 Limitation ACT 1980.
2.Further or in the alternative the plaintiff's claim be struck out on the basis that it is an abuse of process having been commenced more than three years after the date the accident occurred and the cause of action accrued/arose.
3.The costs of and incidental to this application be paid by the plaintiff to the defendants in any event.
The application came before H.H.Judge Simpson sitting at the Mayor's and City of London County Court on October 21st 1997 when he dismissed the defendant's applications, ordered the defendants to pay the plaintiff's costs, and granted leave to appeal. From that order the defendants now appeal.
In reaching his decision H.H.Judge Simpson found that the plaintiff instructed solicitors to act on her behalf in pursuing the claim for damages, on or about February 22nd 1993.
The solicitors sent a letter of claim to the No 1 Yacht Club on February 23rd 1994. No response was received. At the time of the accident the No 1 Yacht Club was a business and trade name, and the bar and restaurant were operated by a company Fortune Hunter Ltd. That company experienced financial difficulties and was wound up following a creditors action in the Companies Court after the date of the accident.
Between April and July 1994 the plaintiff's solicitors made unsuccessful attempts to establish the identity of the owners of the ship, but failed to do so because they misspelt the ship's name, when making enquiries. It was not until July 1994 that the solicitors identified the defendants as the owners.
The Judge found that a search in the General Register of Shipping and Seamen should have been made at a much earlier date, and that the information was readily available to the solicitors if they had made appropriate enquiries. On July 25th 1994 the solicitors wrote to the defendants giving notice of intention to claim damages, and on August 14th 1994 sent a letter before action.
The defendants informed their insurers of the anticipated claim and on September 13th 1994 by letter the insurers informed the plaintiffs solicitors of their interest.
Thereafter no further steps were taken, until the action was commenced on April 30th 1997.
The Judge found that the solicitors, instructed by the plaintiff, had not provided a competent service. He identified the correct issue to be determined, namely whether the plaintiff, who had instructed solicitors to conduct her claim was fixed with the deficiencies of her solicitors. He concluded that she did not have constructive knowledge and so dismissed the defendant's application.
This appeal concerns the proper construction of the Limitation Act 1980 and whether S 14(3) fixes the plaintiff with constructive knowledge which her solicitors ought to have acquired.
The time limit for actions in respect of personal injuries is set out at S 11 Limitation Act 1980.
S 11 (3):
"an action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4)……below"
S 11 (4) (leaving out words not applicable to the instant case):
"the period applicable is 3 years from
(a) the date on which the cause of action accrued
or(b) the date of knowledge (if later) of the person injured."
The definition of the date of knowledge for the purpose of section 11 is set out at S 14.
S14 (1) in section 11…of this Act references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts:-
(a) that the injury in question was significant
and
(b) that the injury was attributable in whole or in part to the act of omission which is alleged to constitute negligence nuisance or breach of duty.
and
(c) the identity of the defendant
(d) (is not relevant).
The plaintiff knew that her injury was significant at the date of her accident on January 28th 1993. No argument arises on (b). It is in respect of (c) i.e. the identity of the defendant which is at the centre of this case.
The plaintiff relies on S14(3):-
"for the purposes...
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...by him if necessary with the help of such expert advice as is reasonable to seek. [12] In Henderson v Temple Pier Company Limited (1998) 1 WLR 1540 solicitors appointed on behalf of the plaintiff had not provided a competent service in identifying defendants responsible for causing the plai......
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