Baker v Gadd, Court of Appeal - Civil Division, June 29, 1998, [1998] EWCA Civ 1108

Resolution Date:June 29, 1998
Issuing Organization:Civil Division
Actores:Baker v Gadd
 
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IN THE SUPREME COURT OF JUDICATURE QBEN1 98/0086/1

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

(HIS HONOUR JUDGE HORDERN)

Royal Courts of Justice

Strand

London WC2A 2LL

Monday 29 June 1998

B e f o r e:

LORD JUSTICE MILLETT

LORD JUSTICE ALDOUS

LORD JUSTICE BROOKE

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NICHOLAS JOHN BAKER

Appellant

- v -

ARTHUR FREDERICK GADD

Respondent

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(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MR H HAMILL (Instructed by Messrs Goddard & Ward, Wiltshire SN10 1BN) appeared on behalf of the Appellant

MR D C JESS (Instructed by Messrs B K J Lewis, Manchester M60 0AL) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court)

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©Crown Copyright

JUDGMENT

LORD JUSTICE MILLETT: Lord Justice Brooke will give the first judgment.

LORD JUSTICE BROOKE: This is an appeal by the plaintiff from an order of Judge Hordern, sitting as a High Court Judge on 24 November 1997, when he allowed an appeal by the defendant from a decision of Master Rose on 27 October 1997. He refused the plaintiff leave to amend his statement of claim in a personal injury action which relates to a serious accident which occurred more than ten years ago.

On 8 June 1987 the plaintiff, who was 27 years of age, was working on his father-in-law's farm near Trowbridge in Wiltshire. His father-in-law is the defendant. He was driving the defendant's tractor which was connected to a forage wagon by a power take off shaft. The forage wagon collects cut grass from the ground by means of rotating spikes. It then crops the grass into small pieces and stores it until it can be deposited into a silage pit. The forage wagon became blocked and the plaintiff attempted to unblock it. At some stage he left the tractor to go over to the forage wagon.

In circumstances which are in dispute in these proceedings, the appellant was drawn into the forage wagon and became impaled on in its pickup tines. He was trapped there until such time as his shouts drew attention to his plight. A mobile surgical team had to be brought to the farm and they amputated his right leg in the field. He was taken to hospital suffering severe pain. This is obviously a substantial claim if he can establish liability.

He started these proceedings on 24 February 1989. His case, as it was originally pleaded in paragraph 2 of the statement of claim, which was served less than a month later, was that he switched off the tractor before he went to the forage wagon. This was expanded on in further and better particulars. What was then being alleged on his behalf was that while the tractor was switched off the forage wagon operated under power in such a manner as to pull him into the machinery.

The defendant by his defence denied liability and alleged contributory negligence. In particular, it was said that he failed to turn the tractor off, or failed to disengage the power take off lever before going to the forage wagon. Unfortunately the action was not progressed...

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