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The Jersey Law Review - October 2003

 EDITORIAL MISCELLANY

EMPLOYER’S NEGLIGENCE AND CHESHIRE CATS

1       Industrious readers will recall the case of Channel Island Knitwear Co Limited v Hotchkiss,[1]noted in this Review in the Case Summaries section[2] and (in respect of the costs order made in the Court of Appeal against an unconnected third party, namely the States of Jersey) criticised in a short article, also in this Review.[3]  Here we simply record the progress of the litigation to its final stage before the Judicial Committee of the Privy Council.[4]

2       It will be recalled that the plaintiff, a textile designer who suffered severe neck pain, had sued her former employer for negligence in failing to take reasonable care to protect her from suffering harm, claiming that the cause of her illness was excessive hours of work and poor working conditions.  The Royal Court,[5] after hearing conflicting expert evidence, held that the employer’s negligence in these respects had merely exacerbated an existing condition, rather than caused it.  The plaintiff had not pleaded this, and applied for leave to amend.  The court refused the application, but then rather curiously awarded damages to her, not on the basis of having exacerbated the condition, but rather on the basis of having actually caused it, in a total sum of £538,577.

3       Not surprisingly, there was an appeal by the employer.  The Court of Appeal held that the Royal Court should have given leave to amend, and would then have been justified in finding that a pre-existing condition had been exacerbated, but leading to damages on the inevitably lower level reflecting exacerbation rather than full causation.  They found that this pre-existing condition would have forced the plaintiff to give up work in any event at age 45.  So the damages awarded were reduced to £184,136.  Separately, the  Court of Appeal considered awarding the unsuccessful plaintiff/respondent her costs against The States, who had had nothing to do with the litigation so far (this was the aspect criticised in the earlier article).

4       Neither party was happy with the substantive result.  The plaintiff thought that, as the employer had not been able to explain the condition as not the result of its negligence, the plaintiff should have won on full causation.  The employer thought that, as the Royal Court had rejected the plaintiff’s pleaded claim, there was no basis for an exacerbation claim either.  About the only thing they were agreed on was that there was no evidence on which the Court of Appeal could have found – as it did – that the plaintiff would have had to stop working at 45 years, or at any particular age.  So the employer appealed to the Privy Council, and the plaintiff cross-appealed. 

5       The Privy Council, like Mercutio in the play[6] (though without being mortally wounded in the process) cried plague on both their houses.  The evidence of the ergonomists “that if you sit at a computer for long periods in a poor posture you are very likely to have trouble with your neck” might have enabled the plaintiff to win if there was no other evidence.[7]  But the Privy Council held that the employer’s expert’s evidence that the plaintiff suffered from an unusual deformation of the neck (which would have accounted for her symptoms) coupled with the rejection by the Royal Court of the plaintiff’s expert’s theory of how the medical condition was caused, would have entitled the Royal Court to hold that the plaintiff had not discharged the burden of proof.  But there was no evidential basis on which the Court could have held that the plaintiff’s working conditions exacerbated a prior existing condition of a different nature than a deformed neck.  So the plaintiff could not succeed on her own case.

6       Nevertheless, the Privy Council considered that the plaintiff was entitled to succeed in relation to exacerbation of her existing condition during the year in which she continued to work after it had developed, and before she resigned, and it awarded her £10,000 for this.[8]  The Board was undoubtedly sorry for her, and expressed its “dismay” that this plaintiff should emerge from such lengthy litigation with so little to show, and indeed probably a substantial costs liability.  The Board stressed that Jersey law, like English law, requires proof of fault in order to obtain compensation for loss.[9]

7       We have mentioned the previously criticised third party costs order contemplated by the Court of Appeal.  As the Court ultimately made no order as to costs, the Privy Council was not required to examine the reasoning of the Court of Appeal on this point, much less to reverse it.  That strange reasoning therefore remains, hanging in the air, rather like the grin on the face of the long since vanished Cheshire cat.[10]

ARE YOU APPEALING?

8       Cheshire cats apart, let us stay with the Privy Council for a moment.  The Judicial Committee of the Privy Council is Jersey’s final appellate tribunal, hearing appeals from decisions of the Court of Appeal.[11]  Statistics available on the Internet[12] indicate that in the years 1996-2001 there were four appeals from Jersey heard and decided by the Judicial Committee of the Privy Council.  Perusal of the Privy Council judgments on the Internet[13] for 2002 and 2003 indicates that there was only one further appeal (Hotchkiss itself) heard and decided up to the end of June 2003.  So, a total of five appeals in seven and a half years.

9       The UK has nearly sixty million people, and the House of Lords hears between 50 and 70 appeals per annum, so the rate is about one per million per annum.  Jersey’s population is a little over eighty thousand, or 0.08 million.  So at the rate of one per million per annum one would expect 0.08 x 7.5 appeals over the same period, i.e. 0.6 instead of 5.  Given the small sample, caution must be exercised.  But it suggests that Jersey, in terms of its thirst for appeals to the third level, the final court of appeal, is punching rather above its weight.

10     There is also this.  Research indicates that in the UK the House of Lords reverses the lower court about one time in three.  But of the five Jersey appeals in the last seven and a half years, four were allowed, i.e. eighty percent.  Of course the sample is not statistically significant, indeed very small.  But it is all we have to go on.  When the Jersey litigant asks his lawyer about an appeal from the Court of Appeal this is – however limited – relevant information.

11     It would be interesting to carry out research, of a more detailed nature and stretching back over more years, into the rate of appeal and rate of success of appeals from the Court of Appeal to the Privy Council.  Perhaps when university students originating from Jersey are casting around for a suitable subject for a research topic, they might wish to bear this in mind.

ROYAL COURT RULES & THE ROLE OF WITNESS STATEMENTS

12     In England, there has been express provision for the exchange of witness statements since procedural rules to such effect were first introduced in 1986[14].  The position is currently governed by CPR Pt 32.  This describes a witness statement to be a written statement signed by a person which contains the evidence which that person would be allowed to give orally.  Normally the Court will direct the simultaneous exchange of such statements and the failure to comply with such direction may ultimately lead to the claim or defence being struck out.  CPR Pt 32 further sets out the requirements as to the form that such witness statements should take.  It must, for example, be dated, be in the intended witness’s own words, be expressed in the first person, and contain a statement that the intended witness believes the facts stated in it to be true.

13     Adrian Kean describes the position in England as follows -

“The rules for the exchange of witness statements in civil cases have been designed to promote the fair disposal of proceedings and to save costs: they identify the real issues, encourage the parties to make appropriate admissions of fact, promote fair settlements, remove the element of surprise as to the witnesses each party intends to call and give to the cross-examining party the advantage of knowing in advance what each witness will say in his examination-in-chief.”[15]

14     In the Channel Islands, there are no comparable rules that expressly provide for the use of witness statements. In 1996, however, the Royal Court in Jersey found that it had power to make such a direction under its inherent jurisdiction, but declined to do so. Paradoxically, part of the Royal Court’s reasoning was that it would not exercise such power in the absence of an express rule.[16] One may be surprised that the Channel Islands have not recast or, at least, reformed their respective procedural rules in the light of the arguments that led to the Civil Procedural Rules in England.[17]  What is perhaps more surprising, is that neither Jersey nor Guernsey have wholly embraced those aspects of the old system, (such as witness statements) that could be of practical benefit to litigants and to the Channel Islands’ Court process as a whole.  The answer cannot simply be that, notwithstanding over seventeen years of practical experience, the English Courts have got the subject of witness statements, all wrong.[18]  However, as appears below, the tide may now be turning in favour of a system comparable to that which exists in England.

15     There is a trend of Jersey decisions where affidavits have been deployed in a similar role to that of witness statements in England. In Parujan v Atlantic Western Trustees Ltd[19], a direction was made that affidavits be filed and stand as the evidence-in-chief of the deponents[20] whilst in Sinel v Goldstein[21], the Bailiff suggested that such a direction was a suitable direction for the Master to consider making in that particular case. Most recently, in JFSC v Black and others[22], Page, Commissioner made the following order -

“…the parties shall mutually exchange affidavits of the oral evidence that the parties intend to adduce.  Such affidavits shall stand as the evidence-in-chief of the deponents save insofar as the Court shall otherwise direct.  Deponents shall attend Court for cross-examination in the event that (i) any party reasonably requires the attendance of a deponent for that purpose and (ii) such deponent can be produced: such determination to be by agreement between the parties or in default of agreement by order of the Court. No witnesses other than the deponents and expert witnesses shall be heard unless otherwise ordered by the Court or agreed in writing between the parties."

16     In making such order[23] the Commissioner found that RCR 6/21 (summons for directions) was an “overarching” provision that allowed the Court to make an order that, arguably, might otherwise be prevented by RCR 6/18(3). (This latter rule prohibits the use of affidavit evidence where the witness is directed to be produced.) Indeed, RCR 6/18 expressly states that it is “subject to these Rules and to any enactment relating to evidence” therefore allowing RCR 6/21 to take precedence. Given that RCR 6/21(b) expressly allows the Court to give directions that “secure the just, expeditious and economical disposal” of a given matter, the direction made by the Commissioner was clearly appropriate. Whilst the Commissioner made no determination upon the point, it was submitted upon behalf of the JFSC, that the direction was, in fact, permissible under RCR 6/18, in any event.[24]

17     Whilst the Jersey Courts have, again, shown a measure of ingenuity, it is hoped that the various rule making bodies will see fit to review the current position. Given the experience in England and the trend of recent Jersey authority, an express rule dealing with the issue of witness statements would appear long overdue and, further, would achieve a uniform approach.

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