S E Wood v Days Health UK Ltd and Others
| Jurisdiction | England & Wales |
| Judge | The Honourable Mrs Justice Elisabeth Laing DBE,Mrs Justice Elisabeth Laing DBE |
| Judgment Date | 09 May 2016 |
| Neutral Citation | [2016] EWHC 1079 (QB) |
| Date | 09 May 2016 |
| Court | Queen's Bench Division |
| Docket Number | Case No: 2BM90233 |
[2016] EWHC 1079 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Elisabeth Laing DBE
Case No: 2BM90233
Mr Chris Bright QC and Mr David Tyack (instructed by Hatchers) for the Claimant
Mr Shaun Ferris (instructed by John A Neil Solicitors) for the First Defendant
Mr Satinder Hunjan QC and Mr James Leslie (instructed by Browne Jacobson) for the Second and Third Defendants
Ms Nilufa Khanum (instructed by Fladgate LLP) for the Fourth Defendant
Mr Steven Coles (instructed by DAC Beachcroft) for the Fifth Defendant
Hearing dates: 1 – 3 March 2016
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is my reserved decision after a two-and-a-half-day hearing. I was asked to consider six applications by the parties in this case. I will refer to the parties by initials and numbers. For reasons which I explain below, I will not distinguish between D2 and D3, and will refer to them both as 'D2'. The applications were
i) D1's application to resile from pre-action admission of liability (C and D2 opposed it);
ii) D2's application to amend its defence (C resisted that, except in so far as the amendments related to D2's contribution claims);
iii) C's application for summary judgment against D2 (resisted by D2);
iv) D2's applications to bring Part 20 proceedings against D1 and D4 (not opposed by C; D2 explained that this is for clarity: various orders made last year were said not to be clear);
v) D5's application to strike out C's claim against it (resisted by C);
vi) D4's application to amend its defence (this application was not controversial; I gave D4 permission to amend at the outset of the hearing, and made the appropriate order for costs).
C was represented by Mr Bright QC, D1 by Mr Ferris, D2 by Mr Hunjan QC and Mr Leslie, D4 by Miss Khanum and D5 by Mr Coles. Miss Khanum's participation in the hearing was necessarily very limited, but I am grateful for it. I am also grateful to the other counsel in the case for their written and oral submissions.
The nature of the applications has meant that I could not avoid making findings on some of the disputed issues. It goes without saying that because these were interlocutory applications and there was no cross-examination, my findings do not bind the trial judge.
The facts as they appear from the written evidence and the parties' cases on that evidence
C born on 7 June 1950. She has been paraplegic for some time, and relies on a motorised wheelchair. She had an accident on 26 October 2009. Her case is that she was using her wheelchair when the chair riser shot forwards, propelling her into her desk, pinning her against it and injuring her.
Her case is that she suffered a shoulder injury. It was operated on, and she has subsequently developed complications which have had a 'devastating' effect on her life. She says that the injury has severely limited the independence which her dominant right arm gave her.
D2 was previously the Telford and Wrekin Primary Care Trust ('the PCT'). The PCT has been dissolved and D2 has assumed its liabilities. D3 has also been dissolved and D2 has assumed its liabilities also. This means that it is not necessary for me to distinguish precisely between the roles of D2 and D3 and I do not do so. I will simply refer to 'D2'.
D2 initially supplied a Viper wheelchair to C in 2007, with a riser unit. The terms on which it did so are controversial and I say more about those in due course. In brief, C argues that she had a contract with D2 for the supply to her of a riser unit for that wheelchair and D2's case (skeleton argument paragraph 6) is to the effect that D2 bought the riser unit 'on behalf of' C and she reimbursed D2 for its cost. D2 says there was no contract between it and C in relation to the riser unit.
D2 ordered the original wheelchair and riser unit from D5, who in turn obtained it from D1. D1's case is that it assembled that wheelchair from a chassis supplied by Armada, and from a riser unit supplied by D4. The riser unit was produced by D4. D2 did not know that the riser unit was fitted to the original wheelchair by D1. D4's evidence is that it produced the riser unit to a good standard, and in accordance with a specification provided by D1. D1 disputes the extent to which it told D4 how to produce the riser unit.
D2 used D5 'for stockholding purposes'. There was no contract between D2 and D1, as D2 bought the wheelchair and riser unit from D5. D5 would order from D1 in response to an order from D2. D5 charged D2 more for the wheelchair than it paid D1 for the wheelchair. C's case (in sum) is that the riser unit was sold to her by D2 and that D2 was contractually responsible for repair and maintenance of the wheelchair and riser unit.
C reported a problem with the riser unit to D2 in June 2008. D2's case is that D2's engineer contacted Eric Cooper at D1 and told him that there was a failure under warranty. A riser unit then turned up on a pallet. It had come directly from D1, with no paperwork. I say more about the circumstances of that in due course. This evidence is not contradicted by any evidence from D1, but Mr Ferris says it is not accepted by D1. He points out, with some justification, that there are some gaps in D2's evidence on this part of the case.
Eventually D2, under pressure from C, agreed to fit the second riser unit to the wheelchair. D2's employees had no instructions, but fitting it was a simple job. This was done in October 2008. It appears that D2's staff sawed a bit off the riser unit, but in a way which, the experts apparently agree, did not cause or contribute to the subsequent failure of the riser unit. It is clear, nonetheless, on D2's evidence, that its employees modified the first wheelchair by fitting the second riser unit to it, modified the second riser unit in the way which I have just described, and (see below) assembled the 'accident wheelchair' from the second riser unit, thus modified, and a replacement chassis.
D1's case is that the second riser unit was then fitted to a new chassis, which had been supplied by D1. D2's documents support that case by showing that D1 supplied a new chassis in November 2008, after the second riser unit was supplied, and that the second riser unit was later fixed to the new chassis. It is clear on D2's evidence that its employees assembled the wheelchair which failed in October 2009.
It is also D1's case that the fitting of the new riser unit to a new chassis amounted to the production, by D2, of a different wheelchair from the wheelchair which D1 originally supplied to D2 (via D5) in 2007.
C's case is that the (second) riser unit caused her accident. C's case against D1 is that the wheelchair, including the riser unit, specified by D1, was 'D1's wheelchair'. A mechanic who fits a new engine to a Volvo does not produce anything other than a Volvo, argues C. D1's case is that it was not its wheelchair. The (second) riser unit which caused the accident was produced by D4 and attached to the first, and then to the second, wheelchair chassis by D2. The wheelchair plus riser unit which failed in October 2009 was not, in any particular, the wheelchair plus riser unit which D1 supplied, fully assembled, to D5 in 2007.
The litigation
C's solicitors sent a pre-action protocol letter to D1 on 4 March 2010. It described the accident and referred to a Viper wheelchair with a seat tilt mechanism. C's injuries (a rotator cuff injury to her right shoulder and serious bruising to her ribs) were described. She was still in pain.
Garwyn, the loss adjusters appointed by D1's insurers, replied on 16 March 2010. They reserved their position about liability and said they would investigate. They asked if this was a fast-track case (the limit for such a case at the relevant time was £25,000); they would try to finish their investigation within three months.
C's solicitors said in a letter dated 19 March 2010 that they were investigating where the wheelchair was. They said they understood it had been inspected by D2 and they attached copies of their letter to D2 and D2's reply, dated 12 March 2010. 'Currently' they considered the case was fast track. They had asked D2 for copies of any photographs and inspection report in their letter of 17 February 2010, and where the wheelchair was. D2 replied with a holding letter.
C's solicitors wrote to D1 on 12 April 2010. The letter said that attached were 'a letter dated 30 March 2010' from D2 'together with photos of the faulty wheelchair and the incident report form confirming that there was a failure on the part of the chair'.
The 30 March letter referred to 'the visit report dated 27 October 2009' and 'the MHRA report' (that is, a report to the relevant regulator). The letter said that D2 had the wheelchair. At the foot of letter, 2 documents were mentioned: the MHRA report dated 13/11/2009 and the visit report dated 27/10/2009. The visit report is headed 'Date of Visit: 27 th October 2009'. On page 2, under 'Actions', it said, 'JS to complete MHRA report'. 'JS' was the author of the visit report.
There is a dispute about whether the MHRA report was enclosed with the letter sent by C's solicitors on 12 April 2010. But whether or not it was, a reasonably careful reader of the documents which, it does not seem to be...
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