Barrow v Cosignia Plc

LORD PHILLIPS, MR:

This is an appeal from the judgment of His Honour Judge Marshall-Evans, delivered in the Liverpool County Court on 19 July 2002. While the case demonstrates confusion about principles, both of pleading and of the law of causation, it raises no issue of general, or indeed any, interest other than to the parties, and I hope that no-one will bother to report it.

The claimant, Mr Barrow, was born in December 1964. At the age of 16 he went to work for the Post Office. On 23 November 1995 he had been working for some years as a fork lift truck driver in the mail yard, Brunswick Dock, Liverpool. On that day he sustained injuries when another fork lift truck driver, Mr Swan, drove his truck into collision with Mr Barrow's truck.

On 10 November 1998, a few days before the expiry of the three year limitation period, Mr Barrow brought an action against the Post Office in respect of this accident. Paragraph 3 of the Particulars of Claim alleged that the collision was caused by the negligence of the Post Office’s employee, Mr Swan. Particulars of negligence included the allegation that Mr Swan was drunk while operating his truck. Paragraph 4 gave particulars of the physical injuries alleged to have been sustained by Mr Barrow. These were not very serious; indeed Mr Barrow was initially able to be back at work within a few hours of his accident. Paragraph 4 added, however, "...it is possible that the Plaintiff has developed a psychological pain syndrome".

Paragraph 5 of the particulars alleged:

The issue of liability was tried independently of and before the determination of the measure of damage. On 2 July 1999 His Honour Judge George adjudged that "The sole cause of the accident…was the negligence alleged in paragraph 3 of the Particulars of Claim".

The assessment of damages was not pursued with despatch. On 7 November 2001, Mr Barrow sought permission to amend his particulars of claim. The amendment added to paragraph 3 details of the injuries alleged to have been sustained by Mr Barrow as a result of the accident. These included the following alleged "psychiatric injuries":

. Paragraph 5 of the draft amended pleading alleged that:

This plea was supported by voluminous particulars, the gravamen of which were (i) that the Post Office refused to permit Mr Barrow to take time off work to receive treatment; and (ii) that, despite complaints from Mr Barrow, the Post Office failed to take any steps to address the problem of employees performing their duties under the influence of drink; and (iii) that Mr Barrow was victimised by his fellow employees for complaining about the drink problem and that the Post Office did nothing to prevent this.

The application to amend paragraph 5 was resisted by the Post Office on the ground that the amendments amounted to fresh claims of breach of duty that were advanced after the trial on liability had been concluded. On 11 February 2002, Deputy District Judge Davey refused permission to amend. On 15 February 2002 Mr Barrow issued a new claim form, thereby commencing a second action. This alleged that the Post Office treated Mr Barrow negligently after his accident with the result that he developed a depressive disorder. This resulted, so it was alleged, in periods off work, the most recent of which began on 1 August 2001, when Mr Barrow took an overdose of medication. Mr Barrow has not worked since then. Particulars of negligence were very extensive, but they included those allegations that Deputy District Judge Davey had refused permission to incorporate in paragraph 5 of the Particulars of Claim in the first action..

The Particulars of Claim addressed the fact that the allegations of negligence related, in part, to events that had occurred more than three years before the date on which that action had been commenced. They averred that he acquired “knowledge”, within the meaning of section 14 of the Limitation Act 1980 ("the Act"), that the psychiatric illness which he developed in 1998 was caused and/or maintained by the matters alleged only on receipt of a joint medical report in the earlier action on 3 April 2002. Alternatively it was alleged that it was just and equitable to exercise the discretion conferred by section 33 of the Act so as to enable the entirety of the action to proceed.

. Mr Barrow appealed to Judge Marshall-Evans against the decision of Deputy District Judge Davey in the first action. At the same time he applied to the judge for an order that his claim in the second action be permitted to proceed pursuant to section 33 of the Act.

The Judge first considered the application to amend paragraph 5 of the Particulars of Claim in the first action. He observed that the first question was whether the pleading set out a wholly new head of claim. If it did, then CPR 17.4 applied and it would be difficult to disagree with the decision to refuse permission to amend. Paragraph 17.4 lays down the general rule that the court cannot allow an amendment which adds a new claim that is time-barred. That general rule is subject to a number of exceptions.

The judge answered this question as follows:

The judge then stated that accordingly he allowed the appeal and permitted the amendment of paragraph 5 of the Particulars of Claim in the form proposed.

In discussion with counsel, after delivering his judgment, the judge provided what he described as a "coda" to his judgment:

The judge then turned to the issues of limitation that were raised in relation to the second action. He ruled that Mr Barrow had knowledge of the facts relevant for the purposes of section 14 of the Act by the time of the commencement of proceedings in the first action in November 998, so that section 14 provided no basis for permitting Mr Barrow to base his claim in the second action on events that predated the initiation of that action by more than three years. The effect of this was that, subject to section 33 of the Act, no claim in the second action could be based on any events between 11 November 1995, when the accident occurred, and 15 February 1999. I shall describe this period as "the contested period." This left the question of whether the judge should exercise his discretion under section 33 of the Act to direct that it should not apply to Mr Barrow’s claim.

. As to that question, the judge held that, but for one factor, he would have declined to exercise his discretion to allow the action to proceed outside the limitation period on the ground that the matters of which Mr Barrow was complaining ought to have been investigated and included in the original action. However, one reason alone persuaded the judge that it was appropriate to exercise his discretion under section 33. This was that the claim in the new action:

. Mr Braslavsky QC, for Mr Barrow, and Mr Hytner QC, for the Post Office, are agreed that the new principle of aggravated damages identified by the judge was a chimera. It undoubtedly was. Where a claimant suffers injury after a series of breaches of duty difficult issues of causation can arise - see Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405; Rahman v Arearose Ltd [2001] 1 QB 351; Fairchild v Glenhaven Funeral Services Ltd [2001] EWCA Civ 1881; [2002] 1 WLR 1052. One thing, however, is clear. If the claimant needs to rely upon a specific breach of duty in order to establish his right to relief in whole or in part, that breach of duty will constitute a discrete cause of action to which the provisions of the Act will apply.

. Mr Braslavsky concedes that the appeal in relation to the first action must be allowed insofar as the pleadings seek to found liability on breaches of duty that occurred after Mr Barrow’s accident. Although the amendments to paragraph 5 are inept, that is, in my judgment, what they purport to do.

Mr Braslavsky contends, however, that Mr Barrow should be permitted to reformulate the amended paragraph 5 so as to rely on the matters there pleaded as "elements of the post-accident history which maintained or exacerbated Mr Barrow’s condition".

Mr Hytner objects to this course on two grounds. First, he submits that the matters pleaded in the amended paragraph 5 are not appropriate matters to be pleaded under the head of "particulars of injury". Indeed, he submits, many of them are in conflict with Mr Barrow’s case that his psychiatric illness was caused by his accident. Secondly, he submits that this appeal is not about amending the particulars of injury, which should be dealt with as a discrete issue and should not impinge upon the allowing of the appeal.

I agree with Mr Hytner. The amendments to paragraph 5 are not of a nature that can appropriately be treated as particulars of injury. This appeal is not about an application to amend particulars of injury. If Mr Barrow wishes to particularise his case on causation, I have no doubt that this can be done in the normal manner without objection from the Post Office or the need for the intervention of the court.

I would allow the appeal in relation to the first action and restore the order of the Deputy District Judge.

Mr Hytner submits that he starts with the judge’s exercise of discretion in his favour. The judge held that, but for the fact that the issues in the second action overlapped with those that had to be investigated under the amendments to paragraph 5 of the pleading in the first action, he would have declined to exercise his discretion under section 33 of the Act. As this appeal has removed that overlap, the judge’s approach dictates refusing to exercise discretion under section 33. Mr Hytner submits that we should not interfere with the manner in which the judge indicated that discretion should be exercised unless we are persuaded that the judge erred in principle.

Mr Braslavsky accepts this analysis. He submits, however, that the judge did err in principle in that he failed to have regard to the fact that, even if the amendment to paragraph 5 were disallowed, the issues of causation raised in both the first action and the second action required detailed consideration of events in the contested period. Furthermore, the original pleading in the first action had made it plain that events after the accident would be relied upon as relevant to causation, so the Post Office was not in a position to complain of being taken by surprise by the need to focus on events in the contested period. Finally, Mr Braslavsky submitted that there was an abundance of documentary evidence available that recorded the relevant events in the contested period so that any prejudice resulting from the passage of time was significantly reduced.

Mr Hytner accepted that it would be relevant to consider events in the contested period. He also agreed that there was a wealth of contemporary documentary evidence consequent upon the exercise by Mr Barrow of the Post Office's grievance procedure in relation to many of the events alleged in the second action to constitute breaches of duty during the contested period. He submitted, however, that in the absence of any allegation that these incidents had constituted a breach of duty owed by the Post Office to Mr Barrow, no investigation had been carried out into that aspect of the incidents, and the Post Office had thus suffered prejudice as a result of the delay.

Section 33(1) of the Act provides:

Section 33(3) lays down the circumstances to which the court should have particular regard when exercising this discretion. The following are relevant in the present case:

Thus, the court has to consider the degree to which the claimant has been culpable in the delay in bringing his claim, and the extent to which the delay will prejudice the defendant in defending the claim if the limitation period is not applied. In the light of these matters, the court has to decide whether it would be equitable to allow the claimant to proceed.

Mr Braslavsky rightly conceded that there had been culpable delay on the part of Mr Barrow in alleging the breaches of duty advanced in the second action in relation to the contested period. When Mr Barrow commenced the first action he was aware of all the material events up to that time upon which he was subsequently to rely in the second action. The particulars that the original paragraph 5 of the pleading had promised would be given as soon as possible were available and could have been used for as the foundation for pleading the breaches of duty that were subsequently advanced in the second action in respect of the period up to November 1998. All that can, I believe, be said in Mr Barrow's favour is that the significance of his psychiatric illness became more apparent as time progressed.

Turning to the question of prejudice to the Post Office, I do not consider the delay in initiating the second action is likely to have resulted in significant additional problems in meeting the allegations made in it in relation to the contested period. Most of the facts appear to have been investigated and recorded under the grievance procedure. I find it hard to see what additional evidence would have been obtained at the time that would have been critical to the issue of whether those facts amounted to breaches of duty owed to Mr Barrow. That issue will arise in any event in relation to that part of the second action falling within the limitation period.

If these factors stood alone, they would not, in my view, justify this court in exercising the section 33 discretion in a manner which differed from the approach of Judge Marshall-Evans. What, in my view, makes all the difference is what I would call the "overlap factor"; that is a factor which is peculiar to this case and does not fall within the criteria specified in section 33(3) of the Act, which are not, of course, exclusive.

We are told that the two actions have been consolidated. It will plainly make sense for them to be tried together. The primary issue will be whether the accident suffered by Mr Barrow in November 1995 was the cause of the psychiatric illness which he subsequent developed. It is his case that the effects of his accident, in conjunction with his subsequent treatment at work, combined to produce the illness. This will inevitably require the court to focus on events in the contested period.

Turning to the second action, if the limitation period is applied, an important issue is likely to be the extent to which anything that occurred within that three year period had a significant impact on Mr Barrow's mental health having regard to his previous history. Once again, it will be necessary, when looking at that history, to consider events within the contested period.

If the consolidated action were to proceed in circumstances in which Mr Barrow was precluded from complaining of any actions on the part of the Post Office or its employees during the contested period, there would be a danger of injustice resulting. It would then be in the interest of the Post Office, when seeking to counter the claim in both the first and the second action, to rely upon victimisation and harassment by their own employees in the contested period as (i) breaking the chain of causation after Mr Barrow's accident; and (ii) so damaging Mr Barrow's mental health that the events after February 1999 added little, if anything, to his condition.

Mr Hytner submitted that this would be an unlikely scenario. I am not persuaded of this. In answer to a question from my Lord, Lord Justice Brooke, he was driven to concede that, unless we exercise our discretion under section 33, the consolidated actions will be "a mess to try". I cannot see how these two actions can properly or fairly be tried with a black hole of some three years in the middle, in respect of which, however the evidence emerges, the judge is precluded from making any finding of breach of duty against the Post Office.

It is for this reason that I have concluded that it is equitable to make the same order as that made by the judge, although for different reasons, and to disapply the three year limitation period that would otherwise apply by reason of section 11 of the Act.

LORD JUSTICE BROOKE: I agree.