Sharpe v Addison (t/a Addison Lister)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RIX,Lord Justice Simon Brown,Lord Justice Simon Brown's,Lord Justice Rix,LORD JUSTICE SIMON BROWN,LORD JUSTICE CHADWICK |
| Judgment Date | 23 July 2003 |
| Neutral Citation | [2003] EWCA Civ 1189 |
| Docket Number | B3/2003/0040 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 July 2003 |
[2003] EWCA Civ 1189
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
NEWCASTLE UPON TYNE DISTRICT REGISTRY
(HIS HONOUR JUDGE LANGAN QC
SITTING AS A DEPUTY HIGH COURT JUDGE)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Simon Brown
(Vice President of the Court of Appeal, Civil Division)
Lord Justice Chadwick
Lord Justice Rix
B3/2003/0040
MR M SPENCER QC (instructed by Hay & Kilner, Newcastle upon Tyne NE1 1EE) appeared on behalf of the Appellant
MR F BACON (instructed by Crutes, Newcastle upon Tyne NE2 1RQ) Appeared on behalf of the Respondent
This is an appeal from the judgment of His Honour Judge Langan QC and arises from an action for damages for professional negligence against a solicitor. I can take the essential background from the helpful introduction of the learned judge's own judgment.
The appellant, Micah Sharpe, who sues by his mother and litigation friend, Christine Cunningham, was crossing a road on foot when he was struck by a taxi and suffered serious injuries. He consulted the respondent, Michael Addison (trading as Addison Lister), who caused a writ to be issued against the driver of the taxi for damages for personal injuries caused by his alleged negligence.
The driver was covered by a valid motor insurance policy. Under sections 151 and 152 of the Road Traffic Act 1988 the driver's insurers would be liable to indemnify him in respect of a judgment obtained by Mr Sharpe if, but only if, they were given notice of the action against the driver in due time. Notice had to be given before the issue of the writ or within seven days thereafter. Mr Addison gave notice one day late and Mr Sharpe's right to an indemnity was lost. The driver was not in a position to meet any judgment which might be obtained against him and Mr Sharpe was left with no alternative to discontinuing the action, which he did.
Mr Addison accepts that he was negligent in not giving timely notice of the issue of proceedings to the driver's insurers, but through counsel took issue on the claim on three matters. First, he said that Mr Sharpe's case against the driver was hopeless and that Mr Sharpe had therefore lost nothing of value despite his own, Mr Addison's, admitted negligence, and that the action should therefore be dismissed. Secondly, on the assumption that that first line of defence had failed, the issue arose as to what damages would have been recovered against the driver. The one remaining area of controversy which survives to this appeal relates to the claim for loss of earnings up to the date of a hypothetical trial and thereafter for the rest of Mr Sharpe's life. The third area of dispute related to deductions falling to be made from the damages which Mr Sharpe would have recovered from the driver in the original action. Mr Sharpe accepted that a significant deduction had to be made in respect of an inevitable finding of contributory negligence. Mr Addison maintained, however, that a further deduction must be made to reflect the possibility that Mr Sharpe might not have made good his case on the primary liability of the driver and there was below, and remains on this appeal, an issue as to what that further deduction, if any, should be.
The essential facts relating to the accident were as follows. Mr Sharpe was born on 15 December 1970. The accident occurred on 26 January 1991 when he was 20 years old. The accident happened at night, not long before midnight. It occurred on Derwentwater Road, Gateshead which is a single carriageway road 7.4 m wide at the relevant point. The evidence established that the road was damp. The taxi driver was approaching around a sweeping left-hand bend. On the other side of the road, ahead of the taxi driver, was a bus stop. Mr Sharpe, together with his friend Richard White and their respective girlfriends, had been waiting at that stop for a bus. When the bus came the girls were seen on to the bus and the two friends started to cross the road at the rear of the bus just as it was pulling away from the stop. The taxi being driven along Derwentwater Road in the direction of that bus stop, but on the other side of the road, was being driven by Ian McKechnie. He had a passenger called Ian Grant. The taxi was travelling at no more than 30 mph in a 30 mph speed limited area. As Mr Sharpe crossed over on to the further side of the road, on which the taxi was travelling, he was struck by the taxi. Mr White, who, unlike Mr Sharpe, had seen the taxi coming and stayed in the centre of the road, was not injured.
Within a week of that accident those three witnesses (that is to say the friend, Mr White, the driver, Mr McKechnie, and the passenger, Mr Grant) had given either an interview or witness statements to the police. They agreed that the responsibility for the accident was Mr Sharpe's in that he had continued into the path of the taxi when it was too late for the driver to do anything about it. However, Mr Sharpe himself had no recollection of his accident and could provide no information about it. None of the other witnesses (that is to say the friend, Mr White, the driver, Mr McKechnie, and the passenger, Mr Grant) were called to give evidence at the trial below on the ground that after twelve years since the time of the accident, they could not be expected to recall the precise sequence of events which had led up to it. The judge therefore assessed the evidence on the basis of the written material.
Mr Sharpe suffered a head injury which has left him with a degree of brain damage. He has not been able to work since the accident. He lives on his own in a flat but receives a lot of support from his mother and other members of his family.
I now turn to describe the facts relating to the original litigation against the driver, Mr McKechnie. The first thing that happened after the accident was that in March of that year, 1991, Mr Sharpe's mother went to a firm of solicitors called McKeags whose advice was that the claim would not succeed. They wrote a pessimistic letter of advice to that effect on 18 March 1991. It was over two years later, in August 1993, that Mr Sharpe's mother consulted Mr Addison on the claim. His advice was more positive. On 11 August 1993 he wrote to the area director of the legal aid authorities with a request for legal aid to obtain counsel's opinion. The letter reviewed the essential facts relating to the accident as they appeared from the interview and statements taken by the police. The letter continued:
"The implication from his own statement is that the taxi driver kept going at 30 mph after seeing two boys jumping about in the middle of the road. He should have braked when he first saw them, steered away from them, and sounded his horn.
The Highway Code in force at the time states at paragraph 56 'Drive carefully and slowly when pedestrians are about, particularly …. when you see a bus stopped …. remember pedestrians may have to cross roads where there are no crossings —show them consideration'."
Then he cited further from the highway code as follows.
"Be careful when there are pedestrians …. in the road …. give them plenty of room …. keep your speed down."
Legal aid was granted to obtain counsel's advice and on 15 November 1993 Mr Jonathan Bennett, counsel then of eight years' call, wrote a preliminary advice in which he expressed whole-hearted endorsement of the contents of Mr Addison's letter and went on to state that a driver who has seen two pedestrians hesitating on the central white line should take some effective warning or evasive action in order to try to avoid an accident. His advice also reviewed the evidence deriving from the police interview and statements, and in particular the fact that the driver stated that he had first seen the two young men when he was only about 15 yards from them. The advice went on to refer to Mr Sharpe's responsibility for the accident and stated that on any view, including that of his friend Mr White, as was plain from Mr White's statement, he was clearly at fault in attempting to cross without making certain that it was safe to do so. The advice went on to say:
"For this error, he must bear a considerable amount of blame. It is difficult to see how this could be less than 50% and could be as much as 75% liability".
On the the basis of this advice, legal aid to bring the action was obtained and the writ was issued on 6 January 1994. Unfortunately, Mr Addison's section 152 notice to the driver's insurers was sent one day late on 14 January 1994. In those circumstances, leave to join those insurers was permitted on 15 June 1994. The action then appears to have entered a long period of dilatoriness and it was only on 26 August 1999 that the court ordered split trials, with a trial on liability to take place on 6 December 1999.
During the run-up to that date fresh counsel, Mr Richard Furniss, was consulted. In an opinion dated 26 October 1999 he advised that, because the driver had disappeared and was in any event not worth powder and shot, and because unfortunately the driver's insurers could not be made liable, the claim should be discontinued since it was on those practical grounds valueless. What was more, given the error over the section 152 notice, there was a conflict of interest between Mr Addison and his client, Mr Sharpe, which should be addressed. Mr Furniss' opinion did not pass upon the underlying merits of the negligence claim...
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