Burke v Ashe Construction Ltd.

This is an appeal from the order of His Honour Judge Charles Harris QC made on 5 September 2002 pursuant to s.33 of the Limitation Act 1980 (“the Act”) disapplying the limitation period of three years in respect of the claimant’s accident at work on 1 July 1994.

The limitation period having expired on 1 July 1997, proceedings were not issued until 19 June 2001 and served on 5 October 2001.

There was no question but that the claimant was early aware of his right. He had formed the intention to sue the defendants and had instructed solicitors to that end well within the limitation period. However, owing to a combination of circumstances, arguably of incompetence on the part of successive solicitors and the doubts raised by the claimant’s successive legal advisers as to the prospects of success, proceedings were not issued until almost four years after expiry of the limitation period. However, because it was essentially not in dispute that the plaintiff himself, who was ill-educated and indeed illiterate, was in no way himself to blame and because, as the judge held, the prejudice to the defendants was slight, he made the order which he did in the claimant’s favour.

At the time of his accident, the claimant was engaged on a substantial project of the defendants to renovate a number of houses on an estate at Potton Road in St Neots (“the Potton Road site”). The facts of the accident as advanced by the claimant were straightforward and may be taken from the Particulars of Claim.

On 1 July 1994, in the course of his employment, he was required to place a number of newly delivered fascia boards, each approximately 6 inches wide and 15 feet in length (but light in weight), into temporary storage on a raised platform or rack which had been provided for such purposes on the site.

The platform consisted of a number of steel trestles set up at right angles to one of the boundary walls between houses on the site, scaffolding planks being placed in parallel upon the trestles and held in place by metal lugs or short extension tubes arising vertically from the trestles. At the material time, a number of doors were stacked on their long edges, up against each other, almost vertically in front of the platform and resting against the trestles in such a manner that the combined width of their top edges formed in effect an extension of the platform at a somewhat lower level.

Materials stacked on the platform were required to be protected from the elements by a tarpaulin previously provided by the defendants for that purpose which, at the material time, was rolled back up onto the top of the boundary wall to allow access to the platform, its lower edge being secured to the lugs at the back of the platform by the wall. Once the claimant had finished stacking the fascia boards on the trestle platform, he attempted to deploy the tarpaulin. He could not reach up to the edge of the tarpaulin from the ground and according to him no ladder was provided from which to reach it. He therefore climbed on the platform in order to unroll the tarpaulin. Once on the platform, he proceeded to deploy the tarpaulin by pulling it towards him whilst stepping backwards over the fascia boards already stacked on the platform. In the course of doing so he stepped backwards onto the stacked doors, whereupon he slipped and lost his footing. As a result he fell and, in doing so, impaled himself on one of the vertical extension tubes. He was seriously injured in the groin. Further the accident provoked the onset of arthritic changes in his right hip which had previously been asymptomatic and he has since been considerably disabled.

The Particulars of Claim allege various breaches of statutory duty under a number of statutory regulations pleaded as applicable to the claimant’s work, as well as common law negligence on the part of the defendants. The gravamen of the allegations was that the defendants had failed to make a suitable assessment of the task which the claimant was asked to perform and, in particular, that he would need safe access to the tarpaulin in respect of which no safe means of access had been made available. In particular, the defendants had not provided him with a ladder for the purpose of access and effectively required him to climb upon a platform which was not safe for that purpose, both in the light of the conditions as described and the necessity or likelihood that he would step back on the doors when handling the tarpaulin. It was also complained that the vertical lugs were not capped or cushioned in any way and were liable to cause injury if anyone, and in particular the claimant, slipped or fell on or from the platform.

As agreed before the judge and in this court, the claim concerned a straightforward and uncomplicated case of an accident at work. The judge, who gave a reserved judgment, put it in this way:

Having consulted solicitors, 18 months after the accident the claimant obtained legal aid up to the obtaining of counsel’s opinion and a letter of claim was written on his behalf. The subsequent history of the matter was explained in detail in the affidavit of the claimant’s succeeding solicitors. The essential pattern of events as set out in the judgment was as follows.

On 23 April 1996 liability was denied. Having obtained a second medical report in September 1996 under the Legal Aid Certificate the claimant’s solicitors wrote to him stating that in their view he did not have a case. However, advice from counsel was obtained on 12 June 1997, in which counsel (Dr Jenkins) stated that she was of the opinion that there were great difficulties in this case. She said “I feel that both liability and causation will be difficult to establish and, indeed, I put the chances of doing so at less than evens.” However, she added that different counsel might well take a different view and that “I am anxious that the plaintiff’s position be protected with regard to the end of the limitation period.” She advised issuing a writ prior to 30 June 1997.

Having obtained that advice the claimant’s solicitors tried and failed to get legal aid extended for the purpose of obtaining a different opinion. No writ was issued and the limitation period expired.

In January 1998 the claimant consulted a second firm of solicitors, Hetherington & Co. They too failed promptly to issue a writ against the defendants but rather took what the judge described as “leisurely steps” to consider whether there was a cause of action against the first solicitors. In November 1998, having obtained an engineer’s report which was strongly optimistic on liability, they consulted different counsel and in April 1999 obtained an opinion from him expressing the view that the claimant had a better than 50% prospect of success. He also stated that, while he disagreed with Dr Jenkins’ assessment of the claimant’s case he did not think that her overall advice was so wrong as to be negligent and that in the light of that advice he did not think it was negligent of the first solicitors not to finance the issue of a protected writ (not being covered at that stage by legal aid). Finally he stated that, given the time that had elapsed between the date of the accident and his advice, he very much doubted that a s.33 application would succeed, although it might have succeeded in 1997.

Hetheringtons were unhappy with counsel’s opinion to the extent that they considered it was insufficiently optimistic. They invited him to reconsider his opinion but did not issue a writ. Further time went by.

In January 2000 yet further counsel, Mr Richards was consulted. He concluded that there was an arguable case in negligence against the first counsel and that the first solicitors were not negligent. He considered that an application under s.33 stood a reasonable prospect of success and advised that legal aid be revised to allow the claimant to issue, but not to serve, a claim form. That was not achieved. On 19 March 2001 Mr Richards again advised that legal aid be extended to allow the claimant to sue the defendants and on this occasion it was granted. On 19 June 2001 proceedings were at last issued, some 7 years after the accident and some 3½ years after the instruction of the claimant’s second solicitor.

The judge was critical of the pattern of events in the hands of counsel first consulted and both sets of solicitors and there was considerable argument before him about the chances of establishing negligence against any of them, particularly in the context of delays in and limitations placed upon the extent of legal aid at the various stages of the operation. He described the claimant’s case as “a claim which any competent specialist solicitor or counsel would probably have indicated justified the commencement of proceedings” and, at the end of his judgment, described his task as an exercise of discretion “in the very unusual circumstances of multiple professional failure, possibly falling short of negligence”.

So far as the accident was concerned, the position as to the availability of evidence was as follows. The claimant relied upon his own full statement of events and a witness statement obtained in September 1996 from Mr Petts, the claimant’s site manager. The latter stated that on the day of the accident he remembered the claimant unloading the fascia boards from the lorry “as normal” and starting to stack them on the timber rack which he described, attaching a sketch picture of the layout of the platform as constructed against the retaining wall and a photograph of the type of trestles used in its construction. There was no significant difference in the layout described from that described by the claimant and Mr Petts described the usual position of the tarpaulin as secured to the lugs at the back edge of the trestle and rolled up onto the top of the wall so that once the timber stock had been stacked the tarpaulin would be pulled over the top of it to protect it. He stated that it was the claimant’s task to unload the lorries, stack the goods and secure the tarpaulin after stacking.

Mr Petts stated that he did not see the accident as he had left and gone to another job in the afternoon by the time it occurred but that, when he returned to the site, he saw the timber rack with the tarpaulin only partly pulled over and he saw blood on the lug of one of the trestles. He did not recollect anything (i.e. the doors) stacked in front of the trestles. So far as the tarpaulin was concerned, he stated that on many previous occasions he had seen the claimant go up a flight of (permanent) steps abutting one end of the trestles, leaning over from higher ground at the top of the stairs in order to throw the leading edge of the tarpaulin forward from the wall. He would then go back down the steps to the front of the timber rack and reach up to pull the front of the tarpaulin down towards him so as to cover the materials. Mr Petts said he did not to the best of his recollection ever see the claimant climb up on the timber rack from the front of it but only from the open end.

Mr Petts also stated that there was nothing in the Health & Safety Guidelines in respect of the site which specifically related to the job the claimant was doing that day; nor was any training given to him for the job, he being an experienced and reliable labourer presumed to know what to do from his own experience. Mr Petts said that, whereas in 1996 it was now necessary to induct people onto the site and show them how to do things of the kind which the claimant did, that had not been the case in 1994 at the time of the accident.

So far as the defendants were concerned, their case on the availability of evidence and the prejudice to them from delay was as follows: They had a further statement of Mr Petts dated 1 July 2002 i.e. after commencement of proceedings. He described himself as in charge of the overall health and safety on the Potton Road site and stated that the claimant was responsible for keeping the site clean and tidy. He said that anyone who entered the site, including the claimant would have needed to undergo site induction training in basic Health and Safety training and site rules and regulations. However, he stated that the risk assessments which he carried out related to principal operations such as bricklaying, demolition and working from height and that no risk assessment was carried out in the storage area where the accident took place because it was simply not foreseen as a hazardous area. He said that he had originally instructed the claimant to construct the trestles as a storage place where long planks of wood could be stored safely off the ground and that, as it was being used as a store there was no need to provide guarding. He stated that it was the claimant’s job to place the boards onto the racking and then to cover them with the tarpaulin before he left the site for the evening.

Mr Petts stated that there would have been other ground workers generally on the Potton Road site, under the supervision of a Mr Rankin to whom he had spoken but who had no recollection of the matter. He said there was no longer any record of the workers on the site, such records only being kept for five years and he could not recall the names of any of the workers save Mr Rankin and a Mr Dempsey. By way of variation of his earlier statement he said that from memory there were some doors placed in front of the racking, though how close to them he could not say. However the doors should not have been used in any shape or form as a platform and nor should any part of the trestle platform itself which was for storage only. He stated that the claimant had erected the racking and been responsible for it whilst on site being himself familiar with the need to gain access to the top of the racking in order to roll the tarpaulin up and back before and after stacking. He said that the claimant knew that there were ladders available on the Potton Road site which could be got and used if needed and that, if the claimant had found that he could not reach the tarpaulin easily because of the presence of the doors, he could have removed them and got a ladder into position so that he could do it.

As a result of what they learned from Mr Petts, Mr Rankin and Mr Dempsey were contacted by the defendants for statements. Mr Rankin said that he had no information or knowledge concerning the accident. He said that anyway he did not remember anything about the accident site because it was such a long time ago. Similarly, Mr Dempsey said that, while he remembered the claimant, he remembered nothing about the incident because it was so long ago.

The respondent’s solicitors also contacted a firm of Health & Safety advisers, Safety Concern, in order to interview a Mr Geoff Marsh, the author of a site risk assessment carried out by Safety Concern and sent to the defendants. They were informed that Mr Marsh no longer worked for Safety Concern who had not traded for a number of years. Efforts were also made to contact Mr Les Newman the clerk of works employed by the local authority in respect of the Potton Road site in the event that he might be able to help with any document or statement. However they were informed that he had now retired and the local authority refused to supply a forwarding address.

It was stated for the defendants that they were in possession of reports relating to the accident filled in for the purposes of their insurers and the Health & Safety Executive which were not exhibited, nor their contents further divulged. However, it was stated that the reports did not go into details and, as it was put in the affidavit of the defendants’ solicitor:

Finally, the defendants complained that, although they were in possession of the reports mentioned, the insurers’ original file had been destroyed in the year 2000, at or about the sixth anniversary of the accident, at a time when they had heard nothing further after receipt of a single letter from the claimant’s solicitors stating:

In response, the insurers wrote on 30 May 1997 acknowledging the letter and stating:

All these matters were considered by the judge in a short, but comprehensive, reserved judgment. Having recited the history, he referred to the provisions of section 33, which for convenience I set out here:

The judge then recognised in broad terms the balance of prejudice as being, for the claimant, the loss of the prospect of any recovery save for the possibility of claim against his first counsel and/or his solicitors and the high prejudice to the defendants of being deprived of a complete defence to the action, quoting the words of Lord Diplock in Thompson v Brown[1981] 1 WLR 744 at 750:

He also quoted from the speech of Lord Griffiths in Donovan v Gwentoy[1991] WLR 477 at 479:

He then addressed himself specifically to each of the considerations set out in s.33(3) of the 1980 Act.

Of (a), the length and reasons for delay he said:

As to (b), the extent to which evidence was likely to be less cogent, he referred to the fact that there appeared to have been no witness to the accident save for the claimant himself (which was indeed common ground) and that there may well have been no-one else on site at the time. However he referred to the detailed proofs supplied by Mr Petts, who was still available and that, although in his later statement he said he could not remember the state of the site in any detail, the layout and detail appeared in that earlier statement. He also referred to the destruction of the insurance file, observing that while the defendant’s solicitor had said that it was “likely to have contained helpful material upon which the defendants cannot now rely”, she had not sought to explain or speculate on what such material might be. He referred also to her reference to the clerk of works who could not now be traced and Mr Rankin and Mr Dempsey who now said that they could not remember anything as it was so long ago and

As to (c), the judge stated that the defendants conduct could not be criticised in any way.

As to (d) and (e), he stated that while the claimant had never been under a disability, he could not himself reasonably or legitimately be criticised for not acting promptly or reasonably.

As to (f) he said that the claimant had been badly let down by his advisers. He referred in this respect to the observations of Lord Diplock in Thompson v Brown at 751:

He then summed up the ‘major considerations’ in the case as being (a) that it was extremely old and (b) that it depended upon personal testimony rather than for example upon analysis of documents, records and photographs. He observed that prima facie it was therefore not the kind of case in which the court would consider it proper to exercise discretion in the claimant’s favour, the passage of time having giving rise to potential prejudice to the defendants, albeit not of a kind that could clearly be identified. On the other hand the claimant was personally blameless for the delay, as indeed were the defendants. The case had become so old because of the deficiencies of the claimant’s advisers. He then referred to the need to carry out “one composite exercise in which the material factors are identified and weighed and a balance is then struck” per Nourse LJ in Halford v Brooks[1991] 1 WLR 428 at 439.

He expressed his conclusions as follows:

It will be apparent from paragraphs 27-37 above that the judge, in the course of a careful balancing exercise, expressly dealt with all the considerations and aspects of prejudice which had been urged upon him and to which he was required to have regard under s.33(3) of the Act. This indeed has been conceded before us by Mr Vincent for the defendants who is unable to point to any error or misunderstanding on the part of the judge of the law as stated by this court in the recent case of Various Claimants v Bryn Alyn Community (Holdings) Ltd (In Liquidation) and Royal and Sun Alliance plc[2003] EWCA Civ 85, which had not yet been decided at the time of the judge’s decision.

In the Bryn Alyn case, Auld LJ, giving the judgment of the court, stated the position as follows at paragraphs 68-69:

In this respect, Mr Vincent submits that in a straightforward case with no real complicating factors, as the judge found this to be, it is simply unacceptable that a delay of over seven years should take place prior to issue of proceedings so that the memories of such witnesses as are available will inevitably be dulled and it is likely (as occurred in this case) that records will no longer be available to enable the defendants to make investigations which they were not required, and saw no need, to make at the time of the accident or prior to receipt of proceedings. In this respect, he emphasises the changed climate introduced into litigation generally in relation to the matter of delay following introduction of the CPR. In these circumstances, he submits that, even where a claimant (as opposed to his advisers) is not the author of, or blameworthy in, the matter of delay, if the defendant and his advisers are also blameless, it can only be equitable as between the parties that the claimant rather than the defendant should suffer any prejudice arising from delay.

Mr Vincent submits that, in this case, the prejudice to the defendants caused by (i) being unable to trace potential witnesses working on the Potton Road site at the time (ii) the faded memories of those traced (iii) lack of access to the insurer’s file and (iv) non-availability of the overall site safety assessments and the Clerk of Works’ records are instances of actual rather than merely potential prejudice in defending the case. In this respect, Mr Vincent criticizes as inadequate the judge’s description, in respect of the absence of the Clerk of Works’ records and of Mr Rankin’s and Mr Dempsey’s failed memories, that there “might be some prejudice there”.

Mr Caun for the respondent, on the other hand, submits that none of the points made by Mr Vincent is in fact a point of substance nor, cumulatively, are such points sufficient for the court to conclude that the judge’s decision was plainly wrong or exceeded the ambit in which reasonable disagreement was possible. In this respect, like the judge, he has concentrated on the real nature of the case and the issues to be addressed at trial. He points out, rightly in my view, that all the matters raised by Mr Vincent were the subject of specific and careful consideration by the judge who made clear at various points in his judgment that the burden on the claimant was a heavy one and that, on the face of it, a delay of seven years should be expected to result in a decision adverse to the claimant. However, here it is plain that the aspects of prejudice raised and argued by the defendants were indeed potential rather than actual in all the circumstances of the case. As the respondent submitted, and the judge below held, the reality of the case is that it is a “safe system” case rather than one where there is any substantial dispute on the facts, as to which the judge correctly outlined the situation in the penultimate paragraph of the passage of his judgment quoted at paragraph 37 above.

Like the judge, I am persuaded that that is so. It was and is not suggested that the facts of the accident itself are substantially in dispute; nor is it disputed that there were no witnesses to the accident. The issue relates to whether on the facts asserted by the claimant as to the ‘necessity’ to perform the task on which he was engaged and the non-provision of a ladder for that purpose amounted to an unsafe system of work in the case of a sensible and experienced workman. In that respect, the case for the defendants is fully deployed in the statement of the site supervisor Mr Petts who was responsible for both the work and the safety of the claimant and it is difficult to see that in practice any substantial dispute as to liability or contributory negligence will require exploration which could not adequately be dealt with on the material available.

In these respects, Mr Vincent was unable to identify a real risk of prejudice to the defendants in respect of the absence of other witnesses, given that it was not in dispute that none spoke to the accident itself. His complaint has been that the other workmen on the Potton Road site might have been able to speak to the general safety, and in particular the availability of ladders, on the site in support of Mr Petts’ assertion to that effect. However, it is not apparent that there is any dispute on that issue, the claimant’s complaint being that none was specifically provided, nor any other safe means of access for the very exercise which he was to perform. The question whether it was his responsibility to do the job in a sensible and safe manner without the necessity for instruction and/or whether he could reasonably have been expected as a sensible workman to get on with the job in a safe manner will plainly be the province of Mr Petts. Nor was Mr Vincent able realistically to suggest that the diary of the clerk of works relating to the whole site, nor the evidence of Mr Dempsey, Mr Rankin or any other general labourer, would be likely to assist in those respects. As to the overall site safety assessment, it is plain that it related to general heads of activity on site and it is specifically acknowledged by Mr Petts that it was not considered necessary to make any safety assessment in respect of the stacking and storage task on which the claimant was engaged. Finally, so far as the insurers’ file was concerned, given the survival of the defendants’ reports to their insurers and Health & Safety Executive, Mr Vincent was also unable to suggest any tangible likelihood of valuable material ‘lost’ to the defendants as a result of the destruction of the insurers’ file. I would only add, as to the content of that file, that when the insurers were alerted in May 1997 to the desire of the claimant’s solicitors to interview others working on site, the state of the insurers’ information and assessment was that, as no-one else was present in the compound at the time of the accident, contact with any such persons would not assist the claimant in his inquiries.

All these points seem to me to be well taken as to the practical realities of the matter so that, as the judge held, the actual prejudice was slight and it was still possible for a “respectably fair trial” to take place. In those circumstances, despite his acknowledgement of the heavy burden on the claimant, it cannot be said that he was obviously wrong in permitting the action to proceed, bearing in mind the relevant statutory considerations to which the court is required to have regard when deciding what is ‘equitable’ in this context.

The judge was right to emphasise the claimant’s heavy burden. In a delay of the order in this case, the mere ‘potential’ of prejudice to a defendant will almost always be sufficient, in the absence of any reason to criticise his conduct in some relevant respect, to result in a refusal to extend the limitation period. Indeed, in the circumstances of this case, I consider that the judge’s exercise of discretion went to the extremity of its margins. However, I remind myself that it is not for this court to upset a decision simply upon the basis that it would probably have decided the case the other way if sitting at first instance. For the reasons I have given, I feel unable to hold that the decision in this case was “obviously wrong”. I would therefore dismiss the appeal.

I agree.

I also agree.