Masterman-Lister v Brutton; Masterman-Lister v Jewell

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Wright
Judgment Date15 March 2002
Neutral Citation[2002] EWHC 417 (QB)
Docket NumberCase No: HQ9904627

[2002] EWHC 417 (QB)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

Before

The Honourable Mr Justice Wright

Case No: HQ9904627

Between
Martin Masterman-Lister
Claimant
and
Jewell & Home Counties Dairies
Defendants
Same
and
Brutton & Co.

Ms. L. Cox QC & Miss P. Hitchcock (instructed by Stewarts) for the Claimant

Mr. R. De Wilde QC & Mr. N. Brown (instructed by Blake Lapthorn) for Brutton & Co.

Mr. R. Methuen QC & Mr. H. Hamill (instructed by Ensor Byfield) for Jewell & Home Counties Dairies)

Hearing dates: 28th Jan 02—15th Feb 02 & 25th Feb—26th Feb 02.

JUDGMENT: APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

Mr Justice Wright

Mr Justice Wright

1

In these two joined actions, Martin Joseph Masterman-Lister (Martin) is the claimant, and Mr. Jewell and Home Counties Dairies are the defendants in an action which was originally commenced as long ago as December 1980, in relation to a road traffic accident in which the claimant was involved and which occurred on 9th September 1980. In the second action the defendants Brutton & Co., are a firm of solicitors who acted on behalf of the claimant in pursuing the first action down to and including the date of a purported settlement of that action on the 17th September 1987.

2

On the 29th March 2000 Master Murray, for reasons which will become apparent as the narrative in this judgment progresses, ordered that two issues, the same in each case, should be tried as preliminary issues. The terms of each issue are:—

"Whether the claimant has been a patient within the meaning of RSC Order 80 and/or Part 21 of the CPR at any time since the 8th September 1980 and, if so, what are the period or periods when the claimant has been a patient between the 8th September 1980 to date"

The History

3

Martin was born on the 24th July 1963. At about half past seven in the morning of the 9th September 1980, when aged 17, he was riding a motorcycle along the B3397 Hamble Lane in Southampton on his way to his work as an engineering apprentice at British Aerospace when he was involved in a very serious collision with a milk float driven by Mr. Jewell in his capacity as an employee of Home Counties Dairies. Martin was riding southwards; the milk float was travelling northwards and Mr. Jewell attempted to turn right across the path of the claimant's oncoming motorcycle. There was a collision. What might otherwise have been a relatively straightforward issue of liability was complicated by two factors; first, that immediately before the collision, Martin who at the material time was riding around a sweeping left-hand bend in the road, was overtaking a slower moving vehicle at a time when Mr. Jewell's view of him might, until a late stage, have been obscured; and second, that his speed was such that his motorcycle left a 43 feet 9 inch skid mark upon the road before coming into very heavy collision with the milk float.

4

Martin suffered very serious injuries indeed. He had a very severe closed head injury which caused cerebral contusion and rendered him unconscious for approximately two weeks. It is possible that in the first 24 hours after the accident he suffered a hypoxic episode, but thereafter his neurological condition improved and he was eventually released from intensive care to the wards after about three weeks. His post traumatic amnesia is of approximately 2 months duration, and it is common ground on all sides that this young man suffered severe brain damage. Additionally, there was bilateral avulsion of the roots of the nerves running out of the spinal cord at C5/6/7/8 levels resulting in a bilateral brachial plexus lesion which has Martin with very significant weakness and loss of function in both arms and persistent pain, especially in the left. He had multiple fractures of three of his four limbs with rupture of the ligaments of the left knee, and gross fracturing and displacement of his nasal septum.

5

He was in hospital until shortly before Christmas 1980, but was able to get back to work at British Aerospace on 22nd June 1981, some 9 months after the accident. However, the impact of the accident upon him in both mental and physical terms was such that he was able only to work at a much reduced level and in a routine clerical capacity in the mail room. It is suggested, probably with some justification, that the willingness of British Aerospace to employ him in any capacity at all was probably governed by a feeling of sympathy for a young man who, it is accepted, was of above average intelligence prior to the accident, and might otherwise have been able to look forward to a rewarding career in aeronautical engineering and design, but who had been overwhelmed by such a catastrophe.

6

In the event, Martin remained in employment with British Aerospace until March 1989 when he resigned. He did so, it is suggested, partly because of frustration at the menial level of his work, and also because his fellow workers (who may well not have been the most stimulating of companions) all tended to smoke heavily, and working in a smoky atmosphere aggravated the pain in his arms and hands. Apart from one or two relatively short term employments between 1989 and 1990 he has not worked since. I acknowledge that this is the sketchiest possible outline of the general nature and sequelae of Martin's orthopaedic and neurological injuries but, for the purposes of this preliminary issue, no further detail is necessary. I shall consider in greater detail the impact of his head injury at a later stage in this judgment.

7

Martin's parents consulted Mr. Michael Wilks, a partner in Brutton and Co. relatively soon after the accident, and a writ was issued against Mr. Jewell and Home Counties Dairies on 24th December 1980. Mr. Wilks was at that time a solicitor who had been admitted in 1972. Prior to this he had been a legal executive in an Exeter firm for about 3 years and had also served 5 years' articles there. His practice throughout had been a specialist personal injury one, and by 1980 it was very substantial. He acted for both claimants and insurance companies and saw a wide range of this type of litigation. The slow resolution of Martin's medical condition and the number of operations and other treatments he had to undergo and the consequential complications in collating a large number of medical reports and calculating both past and future financial losses took some time, so that a statement of claim was not served until 2nd September 1985. A defence, denying negligence and alleging the negligence of Martin being the sole or alternatively a contributing cause of the said collision was served on the 3rd November. The statement of claim was settled by Mr. Raymond Walker of counsel who was at that time a senior junior barrister of some 19 years standing also specialising in personal injury litigation. He had been instructed by Mr. Wilks to advise on both liability and quantum. In a written opinion dated 29th April 1985 Mr. Walker advised that Martin himself would be likely to be held at least one third to blame for the collision, and that the apportionment could be as unfavourable as one of 50%. On quantum he advised that general damages for pain and suffering should amount to about £40,000 to which should be added a Smith v Manchester award of £10,000.

8

In October 1985 the defendant's insurers paid into court £25,000. Negotiations continued and on the 11th September 1987 the amount in court was increased to £70,000. As it happens, two days previously Mr. Wilks, Martin and his father had attended a conference with counsel in London to review the case generally. From Mr. Wilks' attendance note it would appear that the conference lasted for some three hours. The notes show that every aspect of the conduct of the litigation was gone into, and although Mr. Lister complains that neither he nor Martin took any significant part in the conference, I doubt very much that that complaint is justified. The terms of Mr. Wilks' instructions to counsel make it plain that Martin and his father were attending the conference to receive reassurance as to the outcome of the case, and it is Mr. Wilks' recollection that both took part in the discussion and that Martin dealt, apparently sensibly, with all the questions put to him. Mr. Walker has no live recollection of the conference but in his witness statement (which is agreed) he asserts that there was nothing in his instructions or in Martin's behaviour which gave him the impression that he was or might have been a patient. Mr. Wilks says the same thing, and it should perhaps be noted that Ms Laura Cox QC, on behalf of Martin expressly disavowed any criticism either of Mr. Walker or Mr. Wilks for failing to discern anything about Martin or his behaviour which might have given rise even to the suspicion that he might not be capable of managing his own affairs.

9

At the conference it would appear that Mr. Walker, in the light of updated figures for loss of earnings and a somewhat increased Smith v. Manchester figure put the total value of the claim on full liability at £117,000 and advised that a payment into court of 50% (i.e. just under £60,000) should be seriously considered.

10

On 13th September 1987 Martin himself wrote to Mr Wilks expressing unhappiness with the sum now offered and asked three relevant and sensible questions as to the possible effect of delaying an acceptance. Mr. Lister senior says that this letter, although physically written by Martin, was very largely dictated by himself. On the 15th September there was a conference at Brutton's offices in Fareham involving Mr. Wilks, Martin, both his parents and a Mr. Boote, a financial director of Mr. Lister's company who was a confidant of the family. Mr. Wilks' advice, basing himself upon Mr. Walker's opinion was that the sum now on...

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