Clark v Public Services Committee of the States of Jersey [2005] JRC 048 (19 April 2005)

judgment the COMMISSIONER: 1. This is an appeal from a decision of the Master on the 20 th January, 2005, to strike out the Plaintiff's Order of Justice. The Master gave his reasons on the 9 th February, 2005. The Appeal summons is dated the 4 th February 2005. 2. The facts of the case were these. On the 4 th April, 1996, the appellant, Mrs Annette Clark was visiting Mont Orgueil Castle with her husband. They lived in West Lothian, Scotland. They parked their car on the main road adjacent to Castle Green and decided to walk down a steep grass slope to the pathway. It would have been a moment's diversion to walk a short distance along the road to the path or, before that, to the steps. The slope at the present time is unkempt. In walking down the slope to the path she put her foot into what was without doubt a rabbit hole, fell and fractured her ankle. The consequences of the injury have been serious. As the Master said in his reasons: "She still suffers from limited mobility and says she has been unable to work or enjoy hobbies and other interests since the accident. Furthermore, the injury has had an adverse effect on her mental health, her marriage and her family life". 3. Mrs Clark claimed under her insurance policy and she detailed her claim in a letter to insurers dated the 23 rd May, 1996. Two paragraphs of that letter are of interest: "I wish to pursue a legal claim, under Section K of our insurance policy, against the council who owned the land, as I feel that they did not take adequate precautions to ensure the safety of visitors at what is a very popular tourist attraction. The grounds are regularly maintained and no signs of any description are present to warn of the hazard. I was advised by the consultant who was responsible for me at the hospital that I was not the first case he has dealt with from the same place, caused by the rabbit holes. I also understand from the local residents that until last year the council would regularly fill in the rabbit holes. This no longer is carried out to save money". 4. It is somewhat surprising that notification of the claim was only given on the 29 th October 1996. That is over six months from the date of the accident and five months after Mrs Clark notified her claim to insurers. 5. The insurers employed a small firm of solicitors in Bournemouth to pursue the claim. We say a "small firm" for its notepaper shows that it contains a principal, a "director of litigation" and a Practice Administrator. A photograph of the place where the accident apparently occurred was (according to Mrs Clark's letter of the 23 rd May, 1996) taken by Mr Clark "shortly after the accident". Mrs Clark also stated that there was video footage of the area (presumably taken at the same time). The first of three affidavits sworn by Paul Nigel Rendell (who is a legal Executive in the firm of Clarke and Co and is its director of litigation, was sworn on the 17 th January, 2005) and says that he flew to Jersey (there is no date) in order to investigate the matter and took photographs (" which I was able to refer to the Plaintiff's (sic) to establish the exact location of where she fell"). 6. Mr Rendell was unable to identify the "correct owner of the land where the Plaintiff fell" . That is, in itself, surprising. The Bailiff's office for example, would have supplied the information instantly. When the first firm of local lawyers were appointed (there were to be two in all) these lawyers " undertook further research as to who the correct Defendant to the action should be ". The Order of Justice was served on the Public Services Committee on the th March, 1999, on the threshold of the three year limitation period. 7. Mrs Clark was examined by a Consultant Orthopaedic Surgeon, Mr R. W. Nutton M. D., F. R. C. S. at the Princess Margaret Rose Orthopaedic Hospital (wherever that is) on the 12 th May 1997 over twelve months after the accident occurred. Mr Nutton had the benefit of clinical records from St John's Hospital, Howden including X-Rays but we must presume nothing from the Jersey General Hospital. 8. There was one factor of the report (which is very detailed) which bears mention. 9. It was noted on a physical examination that Mrs Clark was 5'4½" in height. At the time she weighed 22 stone 10 lbs. In a report prepared later for insurers by Rachel Bush of Bush and Company (a Registered General Nurse with a wide range of experience), which Report is dated 19 th January, 2001, there is this statement: "1.13. Mrs Clark reports that prior to the accident she weighed nineteen and a half stone and advises that she now weighs twenty-one and a half stone." 10. We have noted this simply to point out that this Court would question the wisdom of a lady of small stature and heavily overweight descending a somewhat precipitous bank whether or not the rabbits had been active there. 11. What follows after the filing of the Order of Justice is not in any way the fault of Mrs Clark. She reported the accident in a claim form to insurers and there then befell what can only be described as a slough of inactivity. As the Master records: "There was no formal procedural activity in the action between June 1999 and November 2004. Even taking into account the additional matters mentioned in the chronology it seems clear that there was no significant activity whatsoever between March 2001 and the issue of the summons in November, 2004". 12. Advocate Harris, in his well reasoned argument before us cited a letter from the Committee's insurers to Mrs Clark's insurers. It is dated th December, 1996. "We refer to your letter dated 29 th October 1996 addressed to the States of Jersey. We are sorry to hear that your client sustained injury at Gorey on 4 th April, 1996 and hope that she has now made a satisfactory recovery. It is not disputed that there are rabbit holes on the green and in some areas in the grass slopes surrounding the green. However, there are two sets of steps from the green to the path below. Whilst it is true that in the past our insured have filled in rabbit holes this has been done purely on occasion to tidy up the area for special events. Normally the area is maintained as an informal open grass/common area and not as a manicured lawn. Steps and paths are provided and persons using the area therefore have to exercise the required duty of care to themselves if they elect not to use the paths and steps provided. Under the circumstances liability is denied." 13. We must, for a moment, consider how the matter came before the Master. On 15 th October, 2004 he issued a Notice pursuant to Rule 6/20 (3) and Rule 6/21 (13) of the Royal Count Rules 1992 as amended advising that he intended to consider dismissing the action. The Plaintiff issued a summons on 10 th November, 2004, seeking to have the action retained. Because of an allegation that this summons was defectively worded, the plaintiff had to issue a further summons seeking leave to amend the wording. The summons amendment was allowed by the Master but costs thrown away were borne by the Plaintiff. 14. The Master heard both advocates on 20 th January. He considered the affidavit sworn on 17 th January, 2005 by Mr Rendell and a chronology of events. He applied the law and reached a reasoned decision to strike out. 15. There can be little dispute that the delay on the part of the Plaintiff's lawyers has been inordinate, nor that the delay is inexcusable. We do not criticise Mrs Clark - she had other complex problems to deal with - but in McGorrin -v- Pascoe (7 th June, 2002) Jersey Unreported; [2002/118]; [2002 JLR N.24] The Court of Appeal said, at paragraph 40 of its judgment: "If, as the Royal Court concluded, Mr Michel was "tied by the insouciance of those conducting the English action", that is not something that can be prayed in aid on behalf of the Plaintiff, who must be held responsible for delays on the part of his lawyers (whether in Jersey or any other jurisdiction) against whom he may have other remedies. It is for the Plaintiff to ensure that proceedings are expedited, and the Defendant does not bear an equal burden. It is not so much a question of apportioning blame, as responsibility." 16. As was conceded by Counsel, the point of his appeal lies in the third question that the Master asked himself (following a line of cases which he considered including McGorrin - v - Pascoe (supra), Kinsella -v- Lido Bay Hotel [2001 JLR 247 ] and Garfield Bennett -v- Phillips (6 th November, 2002) Jersey Unreported [2002/214]. The third question is this: "Will such delay give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as likely to cause or have caused serious prejudice to the defendant?" 17. Mr Rendell in his latest affidavit (5 th April, 2005) says that: "It can be stated categorically on the Plaintiff's behalf that save for pain, suffering and loss of amenity arising out of the orthopaedic injury, it is not alleged by the Plaintiff that any other condition that she has suffered from since the date of the accident is attributable to the accident in any way". 18. That is not what was argued before the Master and the Order of Justice will need amendment if it is allowed to stand. For example under "Particulars of Injury " is this statement: "The disability from which the Plaintiff has suffered following the incident has also had an adverse effect on the Plaintiff's mental health, her marriage and her family life". 19. The particulars of negligence are in some respects disturbing. It is necessary to set them out in full: "(i) Caused or permitted the said hole to be or to become or to remain in the green as a danger to persons lawfully using the same; (ii) Caused or permitted the hole to be or become or to remain in the green when it was wholly or in part concealed by grass and/or other vegetation and was a danger and a trap to persons lawfully using the green; (iii) Failed to fill in or repair the hole or otherwise make it safe for persons lawfully using the green; (iv) Failed to devise, implement or enforce any or any adequate system of inspection and maintenance of the green (and in particular the grassy slope surrounding the green), whereby the presence of the hole might have been detected and the same remedied prior to the Plaintiff's injury. (v) Failed adequately or at all to remove the grass and/or other vegetation which concealed the hole so that the same was visible to persons walking on the green; (vi) Failed to give any or any proper warning of the presence of the hole in the green and/or of the need to take care when walking upon the green; (vii) Failed to fence or guard the hole or otherwise to prevent persons lawfully using the green from stepping in the hole. (viii) Failed to advise visitors by way of signs or otherwise not to walk in the vicinity of the hole and/or only to walk upon the paths and steps provided on the green; (ix) Failed to heed and act upon the similar previous incidents to visitors whilst using the green; the Plaintiff is unable at present to give better particulars of such incidents but reserves the right to serve voluntary particulars of the same in due course and inter alia upon Discovery by the Defendant. (x) In the premises, failed to take any or any reasonable care for the Plaintiff's safety, and exposing the Plaintiff to an unnecessary risk of injury. Further or alternatively, by reason of the matters aforesaid the Defendant its servants or agents caused or permitted the green to be or to become or to remain a danger to persons lawfully using the same, and were thereby guilty of a nuisance which caused or contributed to the said incident. By reason of the matters aforesaid, the Plaintiff has suffered personal injury loss and damage. 20. We asked Advocate Harris how this proposition would sit with the committee having provided public car parks at Noirmont Common and at Les Blanches Banques which are riddled with rabbit holes and whether this could lead, if the Plaintiff were right, to a further proliferation of signs. His answer was that Castle Green is a "manicured site". That may well be so, but it would be difficult to fit that argument into the sloping bank leading to the path to the Castle where the rabbit hole was lying. Mr Harris said that there were only two witnesses and there would be a clear recollection of this momentous event. 21. The medical report of Mr R. W. Nutton prepared in 1997, but disclosed only in 1998, was comprehensive. Mr Nutton's conclusions were even of assistance to the Plaintiff. The prognosis was good and Mr Nutton was moved to say: "It is difficult to explain her complaint of persistent and constant pain and loss of function, which appears in my view, out of proportion with the objective findings on physical examination and the x-ray findings." 22. On 1 st April, 2005 Vincent Robert Bray, the claims manager of the Committee's insurers, swore an affidavit. At that date the insurers did not know the exact location of the rabbit hole - photographs in colour were provided to us - had no schedule of loss and no definitive medical evidence. Consequently the insurers have never appointed their own medical expert to examine Mrs Clark. Employees of the Committee are not in permanent occupation and the claim was only notified in October 1996, when the accident occurred on 4 th April, 1996. We find part of that surprising when it is clear that Mr Nutton's medical report was sent (albeit "without prejudice" cover) on 16 th March, 1998. Of course, there is a later medical report from Mr Nutton of 18 th February, 1999 which was only disclosed to us. 23. This is a case that could have been dealt with within twelve months of the accident occurring. Advocate Harris (who has argued fearlessly in this matter) disclosed to us that the original file was mislaid and only found the day before he appeared before us. We have to weigh in the balance the recollection of the witness (despite Mrs Clark's mental degeneration, the argument is not difficult:- she and her husband got out their car. They chose to descend a somewhat hazardous slope and she broke an ankle in a rabbit hole). But what of the Committee? It is only very recently that they saw a photograph of the hole. Who could now recall the policy of the Committee as to rabbit holes on Castle Green (or particularly in the slope leading down to Castle Green) after nine years? 24. Of course the Order of Justice was served on 16 th March, 1999, just over one month before the limitation period expired. But this is not an application made against the striking out of a fresh Order of Justice, within the limitation period; this is a decision to strike out a valid order of justice on the grounds that there is a substantial risk that a fair trial could not take place and that there is likely to be serious prejudice to the Defendant. In Re Esteem Settlement [2000 JLR N-14a] the Court of Appeal made it abundantly clear that the objective of all those involved in civil proceedings was to progress proceedings to trial in accordance with an agreed or ordered timetable at a reasonable level of costs and (most importantly) within a reasonable start time. 25. Rule 6/21 of the Royal Court Rules, 1992 , as amended, actively encourages the Court to manage cases. That is precisely what the Master did on the 15 th October, 2004, when he gave notice that he intended to consider dismissing the action. We have considered the way that the Master exercised his discretion. We cannot fault it. Accordingly the action stands dismissed. Authorities Royal Court Rules 1992, as amended: Rules 6/20 and 6/21 (13). McGorrin -v- Pascoe (7 th June, 2002) Jersey Unreported; [2002/113]; [2002 JLR N. 24]. Kinsella -v- Lido Bay Hotel [2001 JLR 247 ]. Garfield Bennett -v- Phillips (6 th November, 2002) Jersey Unreported; [2002/214]. 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