PI Practitioner, April 2016

16/04/16. Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. You can also receive these for free by registering for our PI Brief Update newsletter. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address.

Establishing vicarious liability in non-employment relationships

The Supreme Court has recently given two decisions that shed some light upon the nature of the relationship and conduct necessary for Claimants to establish vicarious liability of Defendants for tortfeasors...

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Foreign Law in the English Courts - Matthew Chapman, 1 Chancery Lane

09/04/16. A number of the English lawyers who conduct PI litigation in cross-border cases have warned that the full implications of the Rome II Regulation (864/2007) – and the impact that it has on the assessment of damages awarded to English Claimants by English Judges – have yet to be felt. By way of recap, Rome II provides (in Article 15(c)) that once the applicable law of the tort has been identified it will apply (among other things) to the existence, the nature and the assessment of the damages to which the Claimant is entitled. In other words, (and by contrast to the previous position under the Private International Law (Miscellaneous Provisions) Act 1995) Rome II extends the reach of the foreign applicable law beyond the identification of heads of recoverable loss and into the assessment of damages process itself. This means a much greater role for foreign legal experts in the English Courts and it also means that English Judges may find themselves confronting (on a regular basis, given the volume of EU RTA claims in the English jurisdiction) vexed foreign law issues which have not been clearly resolved in the foreign jurisdiction from which they derive.

In this sense, an English Judge may be called to determine (if you like “to make”) German/French/Lithuanian (delete as appropriate) law. Soole J confronted a dilemma of just this kind in the very recent case of...

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Rollinson v Dudley Metropolitan District Council [2015] EWHC 3330 - Jack McCracken, Ropewalk Chambers

08/04/16. The judgment of Haddon-Cave J in Rollinson v Dudley Metropolitan District Council [2015] EWHC 3330, stands as authority for the proposition that the duty to maintain the highway under s.41 of the Highways Act 1980 does not extend to the removal of moss, algae, lichen or similar vegetation from the highway. Writing in a recent article in this publication, Mr. Daniel Tobin raised the interesting point of whether, and I paraphrase, the decision in Rollinson conflicts with a decision of the Court of Appeal in the case of Rich v Pembrokeshire County Council [2001] EWCA Civ 410. Superficially at least, there were would seem to be a clear conflict between the two: Rich was a case where the claimant had slipped on algae and successfully argued that the highway authority’s duty under s.41 did extend to the removal of algae. In light of the apparent conflict Mr. Tobin suggests that Haddon-Cave J, if he was aware of Rich, must have considered that the facts of Rollinson were different enough from those of Rich so as to allow the latter case to be distinguished. The obvious implication is that Rich has the status of a binding authority, which Haddon-Cave J should have followed unless it could have been properly distinguished.

That is not, however, the correct way of approaching the apparent conflict. There is a simple explanation as to why Rich was not before the High Court in Rollinson. Before coming to it though, it is worth briefly considering whether there is any factual basis for distinguishing Rollinson from Rich.

Mr. Rollinson was injured when he slipped on ‘moss’ that was present on the pavement outside his house. He brought a claim for damages against Dudley MBC in its capacity as highway authority. I say ‘moss’ because the exact identity of the vegetation on which he had slipped has remained something of a mystery. His pleaded case was that he had slipped on moss or algae. At trial lichen was also mentioned, principally because the trial judge saw a meaningful distinction to be drawn between the root structures of moss and lichen. The upshot of all this was that Haddon-Cave J made clear that his decision in Rollinson applied to moss, algae, lichen and other similar vegetation.

Mr. Rich was injured when he slipped on algae that was present on the surface of a slipway in Prembroke Dock. He brought a claim for damages against Prembrokeshire CC in its capacity as highway authority for the slipway. He succeeded. The legal basis of his victory was apparently that the s.41 duty was engaged because (i) the algae became so adherent to the existing surface of the highway that they were to be regarded as rooted in or attached to it and (ii) the algae did affect the surface because in effect they became the surface of the highway. (paragraph 6)

Those are the material facts of each case. I must say I see no obvious basis for distinguishing the two. Even if Rollinson concerned moss and Rich algae, and there was evidence that those plants are materially different, surely the reasoning in the latter case would apply to the former by analogy? Why then did the decision in Rich not bind Haddon-Cave J in Rollinson? The answer can be found from a slightly deeper consideration of the status of the judgment of the Court of Appeal in Rich, which comes to us as a transcript under neutral citation [2001] EWCA Civ 410 made available on Bailii. The transcript records the decision of a single Court of Appeal judge Sir Martin Nourse deciding an application for permission to bring a second. At this point it is worth noting the appellate history of Rich. Mr. Rich succeeded at first instance before a District Judge sitting in the County Court. Pembrokeshire CC then appealed to a Circuit Judge in the County Court and lost. Pembrokeshire CC then sought permission from the Court of Appeal to bring a second appeal. It appears Laws LJ refused permission on the papers. Sir. Martin Nourse then refused permission after an oral hearing. The transcript records his short decision on that application.

The question which then arises is whether the decision of a single judge refusing permission to appeal is capable of citation as an authority? The Practice Direction (Citation of Authorities) [2001] 1 W.L.R. 1001, CA, provides as follows:

6.1 A judgment falling into one of the categories referred to in paragraph 6.2 below may not in future be cited before any court unless it clearly indicates that it purports to establish a new principle or to extend the present law. In respect of judgments delivered after the date of this direction, that indication must take the form of an express statement to that effect. In respect of judgments delivered before the date of this direction that*1002 indication must be present in or clearly deducible from the language used in the judgment.

6.2 Paragraph 6.1 applies to the following categories of judgment

Applications attended by one party only

Applications for permission to appeal

Decisions on applications that only decide that the application is arguable

…

The judgment in Rich that appears on Bailii carries the date 13 March 2001. The Practice Direction is dated 9 April 2001. In order for Rich to be open to citation therefore, the judgment of Sir Martin Nourse must ‘clearly indicate that it purports to establish a new principle or to extend the present law’ and ‘that indication must be present in or clearly deducible from the language used in the judgment’.

It is not possible to detect any such indication in the nine-paragraph judgment in Rich. On the contrary, Sir Martin Nourse dismissed Pembrokeshire CC’s application at least in part because he thought the issue of whether the s.41 duty extended to algae was essentially a decision of fact. (paragraph 7) Further, as if to hammer the point home, Sir Martin Nourse then observed of that issue that: ‘that is not an important point of principle; indeed, it is not a point of principle at all’. (ibid) That comment now looks rather prescient in light of the test laid out in the Practice Direction which followed just a few weeks after his judgment.

It is a shame that Rich is often treated as an authority, despite the unambiguous guidance given by the Court of Appeal in the Practice Direction. For example the case appears in the General Note to s.41 in the Encyclopedia of Highway Law and Practice at paragraph 2-093. As a matter of law of course, Rich is not an authority capable of citation. The rather narrow question of whether moss, algae, lichen or other similar vegetation engage the s.41 duty to maintain the highway has now been decided by the High Court in Rollinson, where the case was argued on a full appeal rather than just an application for permission. It therefore stands as the authority on the point, Rich does not.

Jack McCracken
Ropewalk Chambers

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