Legal Watch: Personal Injury 24th July 2014 Issue: 028
Public Liability/Highways The case of McCabe v Cheshire West and Chester Council and another [Lawtel 24/07/2014] draws the distinction between the power of a local authority to do something and its duty to do
In This Issue:
so.
• Public Liability/Highways
The following extract from S97 Highways Act 1980 is relevant
• Costs/Who is the true litigant?
to this report: (1) The Minister and every local highway authority may provide
• The effective use of witness summaries
lighting for the purposes of any highway or proposed highway for which they are or will be the highway authority, and may for that purposes — (a) contract with any persons for the supply of gas, electricity or other means of lighting; and (b) construct and maintain such lamps, posts and other works as they consider necessary. (3) A highway authority shall pay compensation to any person
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who sustains damage by reason of the execution of works
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under this section.
28.04.15 | The Wellcome Collection, London
The claimant had fallen down a flight of steps at a point where a public footpath negotiated a steep drop in level. The accident occurred at 23.00 and he claimed that it was caused by the fact that a streetlight intended to illuminate the steps had not been working at the time. The first defendant local authority was responsible for the footpath and its lighting and the second defendant had contracted with the local authority to maintain the streetlights. It was accepted that the streetlight had not been working. The issue was whether the defendants owed a duty of care to the claimant. The claimant submitted that S97(3) Highways Act 1980 expressly provided for compensation to be paid to anyone who suffered damage by reason of the execution of works under that section. The defendants submitted that they owed no duty of care to the claimant because the first defendant provided street lighting pursuant to a power contained in
S97 of the Act, and its failure to repair the streetlight was
was nonfeasance, not misfeasance. No duty of care was
therefore a failure to exercise a power rather than breach
owed by the first defendant local authority or the second
of a duty.
defendant contractor.
Finding in favour of the defendants the County Court judge held that it was obvious that S97(3) was designed to protect those who were directly affected by the carrying out of works to provide streetlights. It was not intended to create liability for nonfeasance in circumstances such as the instant case.
‘What was done was a failure to maintain the lamp, not an active step. That was nonfeasance, not misfeasance’ Liability could be established against the first defendant only if it performed some positive act that created a danger, but it would not be regarded as having performed a positive act where it undertook work to remove a hazard but failed to do so completely. The circumstances of the instant case amounted to nonfeasance. The inherent danger was present as soon as the footpath was dedicated to the public when it involved a sudden drop in level. To the extent that the first defendant provided, adapted or maintained the steps, those did nothing to add to the danger; indeed they reduced it significantly, as did provision of the light. The presence of the streetlight, if lit, reduced the danger and, if unlit, did nothing to increase it. There was no parallel with Bird v Pearce (1979) because the presence of the lamp, if unlit, would not cause anyone to rely on it. It would be perfectly obvious that it was not lit and that it was not possible to see what was ahead. There could be no doubt that had the local authority taken a conscious decision to switch the light off or even to remove it, it would not have been liable. It would merely have been exercising its discretion under the statutory power. What was done was a failure to maintain the lamp, not an active step. That
Costs/Who is the true litigant? With qualified costs shifting (QOCS) defendants will take an
misconceived, it should not be held against him. He was
even greater interest in whether or not a third party is funding
a hugely experienced litigant in person, in both the roles
and controlling the litigation brought in the claimant’s name.
of barrister and solicitor, who had actively represented the
That was the issue in the commercial case of Dunfermline
companies with which he was closely connected. The more
Building Society v Ghana Commercial Finance Ltd and
important consideration was that he was inextricably bound
others [Lawtel 17/07/2014].
up with the companies’ fortunes; it was impossible to ignore
The defendant/applicant had previously obtained summary judgment in proceedings that the third respondent, a director of the two companies, had initiated on behalf of the first and second respondent companies. It submitted that although a third party costs order was exceptional, the substantive case had been hopeless and doomed to failure; the third respondent was the sole director of the companies throughout and had filed witness statements on their behalf; He did not have a bona fide belief that the companies had had an arguable case and had failed to file any evidence in response to the instant application. The third respondent argued that he ought not be made personally liable for costs as there was a clear distinction between him and the companies and the benefit of any litigation inured to shareholders and not to him personally.
‘In reality there was no distinction between the third respondent and the (claimant) companies...’ Allowing the application, the High Court judge held that the only immutable rule in relation to costs was that there were no immutable rules; a third party costs order was always exceptional and called for a cautious approach. Exceptional meant no more than outside the ordinary run of cases. Although the third respondent’s decision to bring the substantive matter in the Mercantile Court was procedurally
that the third respondent was connected with a number of companies in all of which he had played much the same role. The substantive proceedings had been hopeless on the merits and ought never to have been brought. In reality there was no distinction between the third respondent and the companies and if there was any distinction, it was not sufficient to merit not making the order sought in all the circumstances.
The effective use of witness summaries In Legal Watch: Personal Injury 22 [11/06/2014] we reported
The key point, however, is that the applicant must prove that
the decision in Scarlett v Grace. In that case, the Master
it is not possible to obtain a statement from the witness.
had given the defendant permission to rely on four witness
CPR 32.9(1) states (with emphasis added):
summaries but on the claimant’s appeal the High Court judge restricted the defendant to just one. The judgment provides
(1) A party who –
a useful opportunity to review the circumstances in which
(a) is required to serve a witness statement for use at trial;
the use of a witness summary may be a vitally important
but
tool, legitimately to be used and the circumstances, as in
(b) is unable to obtain one, may apply, without notice, for
Scarlett, where its use is inappropriate.
permission to serve a witness summary instead.
Well before proceedings have been issued in a claim it may
(2) A witness summary is a summary of –
be apparent that a witness has key evidence but is unlikely to sign a witness statement. Is it worth going on because what happens when there are proceedings and the date
(a) the evidence, if known, which would otherwise be included in a witness statement; or
comes for witness statements to be exchanged? The gist
(b) if the evidence is not known, the matters about which the
of the witness’s evidence may be contained in an unsigned
party serving the witness summary proposes to question the
statement; a witness questionnaire; a letter from the
witness.
witness; or even the file note compiled following a telephone conversation with him/her (see CPR 32.9(2) below). In an extreme case the same procedure may be used where it is
(3) Unless the court orders otherwise, a witness summary must include the name and address of the intended witness.
believed that the witness may have valuable evidence, even
(4) Unless the court orders otherwise, a witness summary
where it is not certain that s/he has.
must be served within the period in which a witness
‘...the applicant must prove that it is not possible to obtain a statement from the witness...’
statement would have had to be served. Once this procedure has been followed, the rules apply as if a witness statement had been served and, in particular, the witness may be called to give oral evidence at the trial. This will invariably involve serving the witness with a witness summons immediately a trial date is known. What went wrong for the defendant in Scarlett was that in relation to three out of the four witnesses the appeal judge found that CPR 33.9 was not satisfied. One of them had refused to cooperate at all and the judge held that this justified the use of the procedure. With the other three, the judge took the view that they could have been interviewed but no real attempt had been made to do so. There was no evidence that any of them had refused outright to provide a statement.
What are the lessons to be learned from this? 1. If a witness is known (or suspected) to have valuable
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evidence, do everything possible to obtain a signed
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refusal to discuss the case, this means making more than one attempt to arrange an interview. 2. If the witness provides the evidence in any form which falls short of a signed witness statement, do not give
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3. If the witness has provided no indication of what they
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may say, a very careful decision must be made as to
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whether to serve a witness summary and summons
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them to trial but with no certainty as to what their
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evidence may be. This will rarely be a sensible course of action.
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The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 8 Bedford Park, Croydon, Surrey CR0 2AP. Parabis Law LLP is authorised and regulated by the SRA.