PI Brief Update

Summary of Recent Cases, August 2020

15/08/20. Here is a summary of the recent notable court cases over the past month. 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.

Summary of Recent Cases - Substantive Law

Harris v (1) Bartrums Haulage & Storage Ltd (2) Paul Andre Rombough (T/A Par European) [2020] EWHC 900 (QB)

An articulated lorry and trailer rolled over the Claimant, who was employed to drive it. The Claimant was seriously injured as a result and claimed damages against his employer (the First Defendant) and a sub-contractor to his employer (the Second Defendant). The accident had occurred because the brakes of neither the tractor nor the trailer had been applied at the time. Liability for this failure was tried before Sir Robert Francis QC, as a preliminary issue.

On the day of the accident, the Claimant was instructed to take the tractor unit to a yard in Kettering and pick up a loaded trailer which had been parked by the Second Defendant. When the Claimant coupled the trailer to the tractor, the tractor-trailer unit started moving and he was trapped under the trailer wheel.

The Claimant accepted that he had failed to apply the tractor handbrake when the accident occurred. The evidence was that the failure to apply the tractor handbrake would have produced a number of alarms and warnings within the tractor cabin including: a warning chime; a brightened display; the letter "P" on an orange background; and the text "Apply parking brake".

Sir Robert Francis QC considered that the Claimant's evidence as to whether he checked the trailer brake was unsustainable. There was no sense or logic in the Claimant's assertion that he had been told not to apply the trailer brake if it was not already applied when coupling. Nor was this consistent with the code of practice and guidance provided by the First Defendant. The Second Defendant's evidence that he was "100% sure" that he had left the trailer with its parking brake on, was accepted by the court. The Second Defendant was an impressive witness and had particular reason to be careful given the fact that he had lost two friends to rollaway accidents. It was accepted that he was a careful and highly experienced HGV driver, and it was inconceivable that he would have failed to engage the parking brake. The fact that the brake was disapplied when the accident occurred did not mean that the Second Defendant left the trailer in that state. The least unlikely explanation for the disengaged trailer brake was that the Claimant had disengaged it, unaware that he had failed to apply the tractor brake...

The Claimant also alleged that the Second Defendant had been negligent in parking the trailer on a slope where it would roll forward if unrestrained. The court found that the Second Defendant could not be so criticised; he had parked the trailer where he had been directed and could not have been expected to place chocks under its wheels as this was not common practice.

As to the First Defendant, Sir Robert Francis QC made the following findings:
• By reason of his training and experience, the Claimant had a full understanding of the need to apply the brakes of the tractor and trailer. He was a fully trained and qualified LGV driver. He also knew that the yard had a slope. He knew that the tractor was equipped with warning mechanisms. The First Defendant was entitled to have regard to the Claimant's abilities.
• The First Defendant's induction and risk assessment left a lot to be desired. It was not sufficient to hand over the employee handbook as a mere formality, however, they were entitled to rely on the Claimant's experience and qualifications. Moreover, the handbook added nothing that the Claimant did not already know.
• The Claimant's training was sufficient, given his prior training and experience. The application of the handbrake was so fundamental and obvious that specific refresher training was not required.
• The First Defendant ought to have carried out a risk assessment of the yard in Kettering. Simply asking a driver to have a look at the yard and confirm that it was acceptable was insufficient. Any breach was, however, not causative of the Claimant's accident. The risk assessment in relation to coupling and un-coupling could have been more specific, but was not inadequate. It could have considered additional safety features; however, a prudent employer was not obliged to include these measures to address the risk of drivers failing to apply the brakes. This risk was well known and was addressed by training, normal procedures and measures built into the equipment. The court found that "just because an additional measure is possible and even easy to provide, does not mean it has to be deployed if the existing measures are in themselves reasonably believed to be adequate."
• The First Defendant had not breached their duty to provide a safe system of work and equipment. Multiple measures were provided to address the risk of a rollaway, including training, warnings and alarms and processes by which both the brakes of the tractor and the trailer were applied and checked before coupling.

Accordingly, the Claimant had been the author of his own accident, and the claim was dismissed.

Summary of Recent Cases - Costs

Marbrow v Sharpes Garden Services Ltd Sen Cts Costs Office (Costs Judge Gordon-Saker) 10/07/2020

The Claimant sustained significant injuries to his left hand when using a hedge cutter in the course of his employment. Liability settled shortly before trial, the settlement providing that the Defendant should pay the Claimant's costs on a standard basis. The detailed costs assessment was heard in July 2020, following which Senior Costs Judge Gordon-Saker reserved judgment on whether the caps on recoverable costs provided by Practice Direction 3E, paragraphs 7.2(a) and (b) exclude VAT.

The case was subject to a costs management order, and the Claimant did not argue that there were any exceptional circumstances which enabled him to exceed his approved budget. The Defendant contended that the caps set out in Practice Direction 3E, paragraphs 7.2(a) and (b) were inclusive of VAT, as it was not expressly stated otherwise. The only directly relevant case on the point was BP v Cardiff & Vale University Local Health Board [2015] EWHC B13, a previous decision of Senior Costs Judge Gordon-Saker himself. The Defendant described this decision as "brave", arguing that words had been imported into the rule which were not there i.e. "excluding value added tax"...

Senior Costs Judge Gordon-Saker did not consider that his decision in BP v Cardiff had been brave, nor had he intended to import any words into the rule, as there had been no need to do so. He considered that the relevant caps could not include VAT because they are expressed as percentages of figures set out in the budget. All the figures set out in a budget exclude VAT, as is made clear in the Precedent H. Friston on Costs (3rd edition) provided support for this line of reasoning.

If he was wrong in this analysis, Senior Costs Judge Gordon-Saker fell back upon his reasoning in BP v Cardiff, where he decided that VAT was excluded because this was the intention of the Civil Procedure Rule Committee.

Summary of Recent Cases - Civil Procedure

Porter Capital Corp v (1) Zulifkar Masters (2) Zabeen Masters (3) Chesterfield Trust Co Ltd Ch D (Snowden J) 28/07/2020

The Third Defendant sought relief from sanctions following a failure to file a costs budget within the timeframe prescribed by CPR r. 3.13.

The Third Defendant had taken a neutral position in the claim and had not engaged with the process. Costs budgets were due in October 2019, at which time no budget had been filed on their behalf. In December 2019, the Third Defendant applied for relief from sanctions and introduced a budget of £360,000. At this point, two CMCs had taken place and the other parties' costs had been budgeted. The Claimant contended that the budget sought by the Third Defendant was incomprehensible given their lack of involvement in the proceedings. The application was not pursued by the Third Defendant. Subsequently, the Third defendant applied for relief from sanctions once again. At this point, the Third Defendant had spent £21,000 on a statement of case, £36,000 on disclosure and further sums on witness statement preparation. The Third Defendant sought permission to file the December 2019 budget, modified to reflect the sums actually incurred.

Mr Justice Snowden applied the three-stage test set out in Denton v TH White Ltd [2014] EWCA Civ 906. The Third Defendant accepted that its failure to file a costs budget was a serious and significant breach. It should have been filed in October, and no steps had been taken to do so until December 2019. The court considered that there was no good reason for the breach. The Third Defendant had chosen not to engage with the process.

Snowden J proceeded to consider all the circumstances of the case, and in particular the need for litigation to be conducted efficiently and at proportionate cost, and to enforce compliance with rules, practice directions and orders. He considered that if the application for relief had been dealt with in December 2019 and relief granted, the court could have conducted the costs budgeting exercise envisaged by the CPR. The court could have managed the costs incurred by the parties to further the overriding objective, as was the purpose behind the costs budget regime...

Furthermore, pursuant to CPR Practice Direction 3E, paragraph 7.4, whilst the court may record comments on costs incurred before the date of any costs management hearing, it cannot approve such costs. Thus, the purpose and structure of the costs management regime is to control future costs; it is not to approve incurred costs. Granting relief from sanctions would mean allowing the Third Defendant to file a budget containing costs already incurred, which the court could only comment on. The Third Defendant's failure had rendered the courts costs management process nugatory and rendered the court unable to operate effective costs management in relation to their costs.

It was true that the court's comments on incurred costs would be taken into account when considering the reasonableness and proportionality of all budgeted costs. However, to comment on the incurred costs, the court would have regard to the comments made by other parties on the Third Defendant's costs. This was impractical, as it would take time for the other parties to make such comments, and for the court to consider them.

Accordingly, Snowden J held that it was not appropriate or just in all the circumstances to grant relief from sanctions. The budget would serve a very limited purpose and the other parties would be put to expense and divergence in the run up to trial. Moreover, the application had been pursued at a very late stage, and no explanation had been provided for its lateness.

Olivia Rosenstrom
Temple Garden Chambers

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