Wood v Days Healthcare UK Ltd and Others (Defendants/Appellant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Davis,Lady Justice Sharp,Lord Justice David Richards |
| Judgment Date | 13 December 2017 |
| Neutral Citation | [2017] EWCA Civ 2097 |
| Docket Number | Case No: A2/2016/2351 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 December 2017 |
[2017] EWCA Civ 2097
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BIRMINGHAM DISTRICT REGISTRY
THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE
2BM 90233
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Davis
Lady Justice Sharp
and
Lord Justice David Richards
Case No: A2/2016/2351
Christopher Bright QC (instructed by Messrs Hatchers Solicitors) for the Claimant/Respondent
Shaun Ferris (instructed by John A Neil Solicitors) for the Appellant First Defendant
The other defendants did not appear and were not represented
Hearing dates: 28 & 29 November 2017
Introduction
On the 14 June 2010 loss adjusters acting on behalf of Days Healthcare UK Limited ("Days") the prospective defendant in a proposed personal injury claim on behalf of the claimant, Mrs Susan Wood, formally conceded liability. Subsequently in 2012, in circumstances which I will come on to recount, solicitors for Days indicated that they were contemplating seeking to withdraw such admission of liability. On 23 October 2012 the claimant issued proceedings against Days and certain other defendants. On 25 June 2013 Days then, as previously foreshadowed, applied for permission to withdraw the pre-action admission, pursuant to CPR Pt 14. 1A.
This application, along with various other applications, came before Mrs Justice Elisabeth Laing, sitting in the Birmingham District Registry. After a lengthy hearing, she among other things, in the course of a detailed reserved judgment handed down on 9 May 2016 dealing compositely with all matters before her, decided that permission to withdraw the admission should be refused. She ordered, instead, that judgment be entered against Days on that admission.
Days now appeals against that decision, with leave to appeal granted by Tomlinson LJ. It seeks to say that the judge's conclusion, and reasoning for that conclusion, was flawed.
Before us Days was represented by Mr Shaun Ferris. The claimant was represented by Mr Christopher Bright QC. The various other defendants to the proceedings took no part in the appeal.
Background Facts
The background can be summarised as follows.
The claimant was born on 7 June 1950. She has for a very considerable time been paraplegic and has been reliant on a motorised wheelchair. Latterly she had used a Days "Viper" medical wheelchair.
It was to be said by her that she had an accident involving the wheelchair on 26 October 2009. It was said that she had positioned the wheelchair at her desk, having turned off the power, when "without warning there was a loud crack and instantaneously the seat erupted catapulting the claimant forwards and trapping her against her desk." She subsequently gave a more detailed account, to the best of her recollection, in a witness statement dated 20 July 2015.
On 4 March 2010 Hatchers, solicitors instructed by the claimant, wrote a detailed letter of claim to Days. After setting out what it was said had happened, the letter stated that subsequent inspection of the wheelchair indicated that a weld below the seat had broken. It was alleged that Days was the producer of the chair. Claims by reference to the Consumer Protection Act 1987 and Sale of Goods Act 1979 were intimated. The injuries alleged to have been caused were described as: "a rotator cuff injury to her right shoulder and [she] has had to use a TENS machine and pain relief to ease her pain, which is ongoing. The claimant also sustained serious bruising to her rib cage". It was proposed that expert evidence be obtained from a consultant orthopaedic surgeon. Detailed reference was made in the letter to the Personal Injury Protocol. The letter had also stated that Hatchers were acting under a Conditional Fee Agreement, with provision for a success fee.
Days referred the matter, via its insurers, to its loss adjusters, Garwyns. On 16 March 2010 Garwyns responded to Hatchers. Among other things, they said: "Please let us know if you consider this to be a fast-track case." (This would, at the time, indicate a limit of £25,000.) They also indicated that they would endeavour to complete their enquiries and respond regarding liability within three months, in accordance with the protocol. Subsequently, they agreed to the instruction by Hatchers of an orthopaedic surgeon.
Hatchers responded on 19 March 2010. In the course of that letter they said: "Currently we consider this case will fall into the fast track." It was also said that a schedule of special damages would be produced in due course (it seems that this was not in fact produced until 2013) and that enquiries were being made with the "suppliers of the chair", Shropshire Wheelchair and Posture Service.
In that context, Hatchers had previously written to that Service on 17 February 2010, who had responded on 12 March 2010. Hatchers provided Garwyns with copies of these letters.
On 12 April 2010 Hatchers wrote again to Garwyns. They stated that they enclosed a letter from Telford and Wrekin Community Health Services dated 30 March, together with photographs of the wheelchair and "the incident report form confirming that there was a failure on the part of the chair." It was also stated that the claimant had not sought medical attention immediately after the accident; she had not gone to the A & E department of a local hospital until 19 November 2009. The incident report itself, dated 27 October 2009, recorded the claimant as reporting that she had suffered "bruising to her torso and right forearm, no medical attention was required or sought after the incident".
There was to be a dispute as to just what was in fact enclosed with this letter of 12 April 2010 to Garwyns. At all events, the judge was to conclude that there had not been included in the enclosures a copy of a report, previously provided to Hatchers, known as an MHRA Adverse Incident Report and dated 13 November 2009. This was in due course to acquire great significance: because, after identifying Days as the manufacturer of the wheelchair, the MHRA Report stated: "Frame replaced in 08/2008".
What had happened apparently was this. The judge was to find, on the basis of the evidence before her, that there had been supplied a Viper wheelchair to the claimant by the Telford and Wrekin Primary Care Trust and/or Shropshire Community Health NHS Trust (both of those bodies had since been taken over by the Secretary of State for Health and were as such treated collectively by the judge, styling them "D2"). Included in that supply was a seat riser unit. D2 had ordered and bought the chair and seat riser unit from Berwick Care Equipment Limited (who was to become the Fifth Defendant in the proceedings: D5). D5 had itself obtained the chair and riser unit from Days. There was no contract between Days and D2.
The judge further found, for the purposes of the hearing before her, that D2 had then replaced the riser unit and wheelchair chassis, modifying the frame of the seat riser unit in the process. This was in 2008, following a complaint from the claimant. The seat riser unit itself had been manufactured by or on behalf of a Danish company called Balle A/S (in due course joined as Fourth Defendant – D4). Whether that particular seat riser unit had been supplied directly by Days to D2 was in issue: it is said by D2 that it was, although it seems that there is no written record in the form of an invoice or order to evidence that. At all events, the judge found that D2 had modified the wheelchair by fitting the (modified) seat riser unit to it in October 2008 and then had reassembled that with what was described as a "replacement chassis", supplied by Days. The judge found that: "It is clear on D2's evidence that its employees assembled the wheelchair which failed in October in 2009."
Reverting to the correspondence, on 6 May 2010 Hatchers wrote again to Garwyns, enquiring about their intentions concerning inspection of the chair. Garwyns responded on 3 June 2010, indicating that they were still to determine whether they required further inspection.
On 14 June 2010 Garwyns wrote again. They said this:
"We write further to previous correspondence having now completed our enquiries.
We can confirm that liability is formally conceded and that we will not be advancing any arguments of contributory negligence on the part of your client.
We would now invite you to provide us with your client's medical evidence and schedule of loss, together with supporting documentation."
Just what "enquiries" had been "completed" is not clear on the available evidence.
At the end of 2011 Hatchers forwarded a report from a consultant orthopaedic surgeon (Mr Dodenhoff) dated 19 October 2011. By this time the claimant had had surgery to her right shoulder, following which it was said that there had been loss of movement in her right hand. By 15 August 2012 solicitors for Days were expressing concerns about the changing position and about the "notice given of a potential causation issue concerning your client's continuing disability with her hand" and the "significant change in your client's condition" since the expert's report. Days' solicitors amongst other things were also to state that the MHRA Report did not seem to have been supplied to Garwyns, the solicitors themselves having asked for all the reports.
On 17 August 2012 Hatchers responded. Among other things they said this:
"As far as our client's ongoing condition is concerned you are entirely right when you state that there have been significant changes to our client's symptoms since she was examined...
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