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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Barrow v Cosignia Plc [2003] EWCA Civ 249 (18 February 2003) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2003/249.html Cite as: [2003] EWCA Civ 249

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
LIVERPOOL COUNTY COURT
(HIS HONOUR JUDGE MARSHALL-EVANS QC)

		Royal Courts of Justice Strand London, WC2
		18 February 2003

1. LORD PHILLIPS, MR:

The Procedural History

2. This is an appeal from the judgment of His Honour Judge Marshall-Evans, delivered in the Liverpool County Court on 19 July 2002. While the case demonstrates confusion about principles, both of pleading and of the law of causation, it raises no issue of general, or indeed any, interest other than to the parties, and I hope that no-one will bother to report it.
3. The claimant, Mr Barrow, was born in December 1964. At the age of 16 he went to work for the Post Office. On 23 November 1995 he had been working for some years as a fork lift truck driver in the mail yard, Brunswick Dock, Liverpool. On that day he sustained injuries when another fork lift truck driver, Mr Swan, drove his truck into collision with Mr Barrow's truck.
4. On 10 November 1998, a few days before the expiry of the three year limitation period, Mr Barrow brought an action against the Post Office in respect of this accident. Paragraph 3 of the Particulars of Claim alleged that the collision was caused by the negligence of the Post Office's employee, Mr Swan. Particulars of negligence included the allegation that Mr Swan was drunk while operating his truck. Paragraph 4 gave particulars of the physical injuries alleged to have been sustained by Mr Barrow. These were not very serious; indeed Mr Barrow was initially able to be back at work within a few hours of his accident. Paragraph 4 added, however, "...it is possible that the Plaintiff has developed a psychological pain syndrome".
5. Paragraph 5 of the particulars alleged:

"The Plaintiff will further contend that the effect of his injuries has been worsened by the reaction of the Defendant, its employees servants or agents to the fact that the Plaintiff reported a colleague as being drunk on duty at the time of the accident. The Plaintiff has, since the date of the accident, been harassed, discriminated against and victimised as a result of his complaints. Full particulars will be given as soon as is practicable."

6. The issue of liability was tried independently of and before the determination of the measure of damage. On 2 July 1999 His Honour Judge George adjudged that "The sole cause of the accident…was the negligence alleged in paragraph 3 of the Particulars of Claim".
7. The assessment of damages was not pursued with despatch. On 7 November 2001, Mr Barrow sought permission to amend his particulars of claim. The amendment added to paragraph 3 details of the injuries alleged to have been sustained by Mr Barrow as a result of the accident. These included the following alleged "psychiatric injuries":

"The Claimant has a perfectionist personality with prominent obsessional traits: he has suffered an acute stress reaction and an adjustment disorder. His working capacity is restricted and his condition has deteriorated. Whilst he could cope with office work, his employers removed him back to his original duties and he was unable to cope. He has attempted to take his life. His mental condition accordingly deteriorated between November 2000 and October 2001. He is presently on anti-depressant medication. His capacity for employment is now grossly restricted."

8. . Paragraph 5 of the draft amended pleading alleged that:

"The Claimant's case (at trial) will be that his medical state has been maintained and/or exacerbated by reason of his continued exposure to drunkenness amongst fellow employees in circumstances which could have exposed him to further injury and/or that the Defendants have negligently failed to have regard to the Claimant's medical condition since the 23rd of November 1995."

9. This plea was supported by voluminous particulars, the gravamen of which were (i) that the Post Office refused to permit Mr Barrow to take time off work to receive treatment; and (ii) that, despite complaints from Mr Barrow, the Post Office failed to take any steps to address the problem of employees performing their duties under the influence of drink; and (iii) that Mr Barrow was victimised by his fellow employees for complaining about the drink problem and that the Post Office did nothing to prevent this.
10. The application to amend paragraph 5 was resisted by the Post Office on the ground that the amendments amounted to fresh claims of breach of duty that were advanced after the trial on liability had been concluded. On 11 February 2002, Deputy District Judge Davey refused permission to amend. On 15 February 2002 Mr Barrow issued a new claim form, thereby commencing a second action. This alleged that the Post Office treated Mr Barrow negligently after his accident with the result that he developed a depressive disorder. This resulted, so it was alleged, in periods off work, the most recent of which began on 1 August 2001, when Mr Barrow took an overdose of medication. Mr Barrow has not worked since then. Particulars of negligence were very extensive, but they included those allegations that Deputy District Judge Davey had refused permission to incorporate in paragraph 5 of the Particulars of Claim in the first action..
11. The Particulars of Claim addressed the fact that the allegations of negligence related, in part, to events that had occurred more than three years before the date on which that action had been commenced. They averred that he acquired "knowledge", within the meaning of section 14 of the Limitation Act 1980 ("the Act"), that the psychiatric illness which he developed in 1998 was caused and/or maintained by the matters alleged only on receipt of a joint medical report in the earlier action on 3 April 2002. Alternatively it was alleged that it was just and equitable to exercise the discretion conferred by section 33 of the Act so as to enable the entirety of the action to proceed.
12. . Mr Barrow appealed to Judge Marshall-Evans against the decision of Deputy District Judge Davey in the first action. At the same time he applied to the judge for an order that his claim in the second action be permitted to proceed pursuant to section 33 of the Act.

Judge Marshall-Evans' decision

13. The Judge first considered the application to amend paragraph 5 of the Particulars of Claim in the first action. He observed that the first question was whether the pleading set out a wholly new head of claim. If it did, then CPR 17.4 applied and it would be difficult to disagree with the decision to refuse permission to amend. Paragraph 17.4 lays down the general rule that the court cannot allow an amendment which adds a new claim that is time-barred. That general rule is subject to a number of exceptions.
14. The judge answered this question as follows:

"What has interested me particularly about this case is precisely that question, not only because of course it is pivotal in deciding the appeal but because it seems to me to raise a novel and interesting point of legal significance. I have come to the conclusion that it is but an amplification of the original claim for anxiety/stress and some depression for this basic, and I suspect because no-one has cited me any authority either in favour or against this proposition and this hearing has been split by a short adjournment which could have given an opportunity for additional research, because it seems to me that it amounts to the converse of the doctrine of mitigation. It is of course trite law that it is the duty of a claimant who has suffered a loss to take reasonable steps to mitigate his loss. Indeed there are many ancillary rules, such as that if he spends money in a bona fide attempt to mitigate his loss which happens to fail he can recover that expenditure. It is also the law of course that it is for the defendants to prove, and they have to plead as well under the rules, that he has failed to mitigate his loss. The burden of proof is on them.

Putting it at its simplest and bluntest I believe that what is sauce for the goose is sauce for the gander or, to be even more colloquial, it is even-Stephen. What the claimant is saying is, 'Yes, I was shaken up, I was stressed, I was worried by the accident, and then those symptoms were aggravated by the behaviour of the defendants.

...

Here we have a man who goes back to work with some psychological problems and on his account is then victimised, and according to the psychiatric evidence this victimisation makes whatever problems he had more severe and increases his psychiatric or psychological disability, or incapacity, or injury, whatever term you wish to employ. I accordingly take the view that he is equally entitled, having continued to be employed by them and having complaints against them about their conduct as set out, and I am not going to go through it, in the various allegations and the statement in support, he is entitled to say in effect, 'I haven't failed to mitigate my loss nor have you suggested that I should have done but you, by your behaviour, have aggravated it', and to plead that behaviour."

15. The judge then stated that accordingly he allowed the appeal and permitted the amendment of paragraph 5 of the Particulars of Claim in the form proposed.
16. In discussion with counsel, after delivering his judgment, the judge provided what he described as a "coda" to his judgment:

"Of course the duty to mitigate is a continuous one without any period of limitation, so if five years after the injury is sustained the claimant fails to take reasonable steps to have whatever medical treatment is reasonably recommended without adequate grounds for refusal his damages can be affected and it therefore seems to me that again what is sauce for the goose is sauce for the gander, and limitation is not really an issue that directly arises if I am right about the general principle."

17. The judge then turned to the issues of limitation that were raised in relation to the second action. He ruled that Mr Barrow had knowledge of the facts relevant for the purposes of section 14 of the Act by the time of the commencement of proceedings in the first action in November 998, so that section 14 provided no basis for permitting Mr Barrow to base his claim in the second action on events that predated the initiation of that action by more than three years. The effect of this was that, subject to section 33 of the Act, no claim in the second action could be based on any events between 11 November 1995, when the accident occurred, and 15 February 1999. I shall describe this period as "the contested period." This left the question of whether the judge should exercise his discretion under section 33 of the Act to direct that it should not apply to Mr Barrow's claim.
18. . As to that question, the judge held that, but for one factor, he would have declined to exercise his discretion to allow the action to proceed outside the limitation period on the ground that the matters of which Mr Barrow was complaining ought to have been investigated and included in the original action. However, one reason alone persuaded the judge that it was appropriate to exercise his discretion under section 33. This was that the claim in the new action:

"...overlaps what I have found to be relevant and admissible allegations in respect of aggravation of damage admittedly caused by default of the defendants. It follows that it seems to me that the same investigations are going to be required in any event…"

Common Ground

19. . Mr Braslavsky QC, for Mr Barrow, and Mr Hytner QC, for the Post Office, are agreed that the new principle of aggravated damages identified by the judge was a chimera. It undoubtedly was. Where a claimant suffers injury after a series of breaches of duty difficult issues of causation can arise - see Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405; Rahman v Arearose Ltd [2001] 1 QB 351; Fairchild v Glenhaven Funeral Services Ltd [2001] EWCA Civ 1881; [2002] 1 WLR 1052. One thing, however, is clear. If the claimant needs to rely upon a specific breach of duty in order to establish his right to relief in whole or in part, that breach of duty will constitute a discrete cause of action to which the provisions of the Act will apply.
20. . Mr Braslavsky concedes that the appeal in relation to the first action must be allowed insofar as the pleadings seek to found liability on breaches of duty that occurred after Mr Barrow's accident. Although the amendments to paragraph 5 are inept, that is, in my judgment, what they purport to do.
21. Mr Braslavsky contends, however, that Mr Barrow should be permitted to reformulate the amended paragraph 5 so as to rely on the matters there pleaded as "elements of the post-accident history which maintained or exacerbated Mr Barrow's condition".
22. Mr Hytner objects to this course on two grounds. First, he submits that the matters pleaded in the amended paragraph 5 are not appropriate matters to be pleaded under the head of "particulars of injury". Indeed, he submits, many of them are in conflict with Mr Barrow's case that his psychiatric illness was caused by his accident. Secondly, he submits that this appeal is not about amending the particulars of injury, which should be dealt with as a discrete issue and should not impinge upon the allowing of the appeal.
23. I agree with Mr Hytner. The amendments to paragraph 5 are not of a nature that can appropriately be treated as particulars of injury. This appeal is not about an application to amend particulars of injury. If Mr Barrow wishes to particularise his case on causation, I have no doubt that this can be done in the normal manner without objection from the Post Office or the need for the intervention of the court.
24. I would allow the appeal in relation to the first action and restore the order of the Deputy District Judge.

The Second Action

25. Mr Hytner submits that he starts with the judge's exercise of discretion in his favour. The judge held that, but for the fact that the issues in the second action overlapped with those that had to be investigated under the amendments to paragraph 5 of the pleading in the first action, he would have declined to exercise his discretion under section 33 of the Act. As this appeal has removed that overlap, the judge's approach dictates refusing to exercise discretion under section 33. Mr Hytner submits that we should not interfere with the manner in which the judge indicated that discretion should be exercised unless we are persuaded that the judge erred in principle.
26. Mr Braslavsky accepts this analysis. He submits, however, that the judge did err in principle in that he failed to have regard to the fact that, even if the amendment to paragraph 5 were disallowed, the issues of causation raised in both the first action and the second action required detailed consideration of events in the contested period. Furthermore, the original pleading in the first action had made it plain that events after the accident would be relied upon as relevant to causation, so the Post Office was not in a position to complain of being taken by surprise by the need to focus on events in the contested period. Finally, Mr Braslavsky submitted that there was an abundance of documentary evidence available that recorded the relevant events in the contested period so that any prejudice resulting from the passage of time was significantly reduced.
27. Mr Hytner accepted that it would be relevant to consider events in the contested period. He also agreed that there was a wealth of contemporary documentary evidence consequent upon the exercise by Mr Barrow of the Post Office's grievance procedure in relation to many of the events alleged in the second action to constitute breaches of duty during the contested period. He submitted, however, that in the absence of any allegation that these incidents had constituted a breach of duty owed by the Post Office to Mr Barrow, no investigation had been carried out into that aspect of the incidents, and the Post Office had thus suffered prejudice as a result of the delay.

Discussion

28. Section 33(1) of the Act provides:

"If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree which --

(a) the provisions of section 11, or 11A or 12 of this Act prejudice the plaintiff or any person whom he represents; and

(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates."

29. Section 33(3) lays down the circumstances to which the court should have particular regard when exercising this discretion. The following are relevant in the present case:

"(a) the length of, and the reasons for, the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11, by section 11A or (as the case may be) by section 12;

...

(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received."

30. Thus, the court has to consider the degree to which the claimant has been culpable in the delay in bringing his claim, and the extent to which the delay will prejudice the defendant in defending the claim if the limitation period is not applied. In the light of these matters, the court has to decide whether it would be equitable to allow the claimant to proceed.
31. Mr Braslavsky rightly conceded that there had been culpable delay on the part of Mr Barrow in alleging the breaches of duty advanced in the second action in relation to the contested period. When Mr Barrow commenced the first action he was aware of all the material events up to that time upon which he was subsequently to rely in the second action. The particulars that the original paragraph 5 of the pleading had promised would be given as soon as possible were available and could have been used for as the foundation for pleading the breaches of duty that were subsequently advanced in the second action in respect of the period up to November 1998. All that can, I believe, be said in Mr Barrow's favour is that the significance of his psychiatric illness became more apparent as time progressed.
32. Turning to the question of prejudice to the Post Office, I do not consider the delay in initiating the second action is likely to have resulted in significant additional problems in meeting the allegations made in it in relation to the contested period. Most of the facts appear to have been investigated and recorded under the grievance procedure. I find it hard to see what additional evidence would have been obtained at the time that would have been critical to the issue of whether those facts amounted to breaches of duty owed to Mr Barrow. That issue will arise in any event in relation to that part of the second action falling within the limitation period.
33. If these factors stood alone, they would not, in my view, justify this court in exercising the section 33 discretion in a manner which differed from the approach of Judge Marshall-Evans. What, in my view, makes all the difference is what I would call the "overlap factor"; that is a factor which is peculiar to this case and does not fall within the criteria specified in section 33(3) of the Act, which are not, of course, exclusive.
34. We are told that the two actions have been consolidated. It will plainly make sense for them to be tried together. The primary issue will be whether the accident suffered by Mr Barrow in November 1995 was the cause of the psychiatric illness which he subsequent developed. It is his case that the effects of his accident, in conjunction with his subsequent treatment at work, combined to produce the illness. This will inevitably require the court to focus on events in the contested period.
35. Turning to the second action, if the limitation period is applied, an important issue is likely to be the extent to which anything that occurred within that three year period had a significant impact on Mr Barrow's mental health having regard to his previous history. Once again, it will be necessary, when looking at that history, to consider events within the contested period.
36. If the consolidated action were to proceed in circumstances in which Mr Barrow was precluded from complaining of any actions on the part of the Post Office or its employees during the contested period, there would be a danger of injustice resulting. It would then be in the interest of the Post Office, when seeking to counter the claim in both the first and the second action, to rely upon victimisation and harassment by their own employees in the contested period as (i) breaking the chain of causation after Mr Barrow's accident; and (ii) so damaging Mr Barrow's mental health that the events after February 1999 added little, if anything, to his condition.
37. Mr Hytner submitted that this would be an unlikely scenario. I am not persuaded of this. In answer to a question from my Lord, Lord Justice Brooke, he was driven to concede that, unless we exercise our discretion under section 33, the consolidated actions will be "a mess to try". I cannot see how these two actions can properly or fairly be tried with a black hole of some three years in the middle, in respect of which, however the evidence emerges, the judge is precluded from making any finding of breach of duty against the Post Office.
38. It is for this reason that I have concluded that it is equitable to make the same order as that made by the judge, although for different reasons, and to disapply the three year limitation period that would otherwise apply by reason of section 11 of the Act.
39. LORD JUSTICE BROOKE: I agree.

Order: Appeal allowed. Cross-appeal allowed. No order as to the costs of the appeal. The order of the District Judge on costs to be restored. The costs order of Judge Marshall-Evans to be reversed.

Case to be expedited.