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Estate of Arthur John Lenton (Deceased) v Abrahams and Another, High Court, 16 May 2003

30 May 2003
The issues

Amendment – Contributory Negligence – Pleading Contributory Negligence After Judgment.

The facts

On 13th March 1999, a car driven by Mrs Kaur was in collision with a car driven by Mr Lenton. Both drivers died. So also did the rear seat passenger in one of the cars. Brokers acting for insurers told the Claimant’s solicitors insofar as the accident circumstances are concerned, “liability will not be in issue”. In September 1999 Claimant’s solicitors wrote to the brokers stating that the car – a Vauxhall involved in the accident will be disposed of unless they heard to the contrary within the following fortnight. Nothing was forthcoming and the vehicle was disposed of accordingly. On 8th March 2002 proceedings were commenced. In June 2002 the Master entered Interlocutory Judgment for the First Claimant. He noted that the Defendant had admitted duty and breach but not causation in respect of the Second Claimant, who claimed as a dependent of the rear seat passenger.

Subsequently, on 5th September 2002 the Defendant’s solicitors said they wished now to raise a seatbelt issue namely that the deceased was not using the available seatbelt at the time and thus negligently contributed to her death. On 14th February 2003 leave to amend was refused by the Master who noted that the evidential difficulties on which the Claimants relied were real and that the concession made by the Defendants must be regarded as having been decisive in persuading the parties to investigate in 1999. He concluded that although the prejudice to the Defendant was considerable the prejudice to the Claimant in having to face contentions that could not now be investigated was greater.

Evidence from the Defendants came from a Police Officer investigating, two passers by that had helped, a vehicle examiner, a medical practitioner, and an expert, Dr Rattenbury. The Defendant appealed.

The decision

Following Charlesworth v Relay Roads Limited the Judge had to consider:-

1. The strength of a proposed case as to contributory negligence.

2. The Defendant’s belief that that issue had to be adjudicated upon if justice was to be done between the parties.

3. The Defendants obvious ability for insurers to compensate the Claimant with respect to costs.

4. The fact that the terms of the order of the Master did not preclude consideration of contributory negligence if it could be categorised as material to assessment of damages. (See Maes Finance v AL Phillips & Co). In addition he had to consider the state of the proceedings at which the Defendant made the Application.

5. The absence of any excuse in respect of the delay in seeking to raise contributory negligence.

6. The prior intimation of conceded liability, without any discount for contributory negligence.

7. The Claimant’s inability to examine the Vauxhall.

8. The Court had to be persuaded that the Master’s decision was wrong. In isolation the merits of the Defendant’s application was strong but it could not be said that the Master’s decision was unsustainable and the Court would not interfere. In particular the Appeal Court was influenced by the fact that the Order entering judgment carried a clear message that an award would be made without any deduction of contributory negligence.

Comments

Mr Justice Holland was referred to Maes Finance but appears to have preferred the thrust of Gail v Superdrug which he noted does not appear to have been referred to in Mae Finance. Whilst the issue was not specifically dealt with he would appear not to have thought highly of an arguable distinction between Gail being a case on resilement and Maes Finance being a case on causation in respect of assessment of damages.

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