Walker v Chruszcz [2006] EWHC 64 (QB)

[2006] EWHC 64 (QB)

Case No HQ04X01648

IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice Strand, London, WC2A 2LL

Date 30/01/2006

Before: MR JUSTICE DAVIS

Between

David Alan WalkerClaimant

Charles F Chruszcz QCDefendants

Miss Susan Rodway QC and Mr Paul Stewart (instructed by Bryan and Armstrong) for Claimant Mr Jeremy Stuart-Smith QC and Mr Spike Charlwood (instructed by Robin Simon LLP) for the First Defendant Mr Ben Elkington (instructed by Beachcroft Wansboroughs for the Second Defendant.

Hearing Hearing dates: 13 th to 16 th and 19 th December

Judgment

Mr Justice Davis J :

Introduction

[1]On the 12th December 1996 the Claimant in these proceedings, Mr David Walker, settled (on the morning of the day fixed for trial) a personal injury action which he had brought against his former employer, Gary Hather Plant Hire, by writ issued on 15th October 1990. The settlement, which was reflected in a consent order of that date, was in the sum of £95,000 together with the costs of the proceedings. By these present proceedings, started by Claim Form issued on 11th December 2002, the Claimant sues Mr Charles Chruszcz QC, leading counsel acting for him at the trial, and Irwin Mitchell, the solicitors acting for him at the trial. He alleges that Mr Chruszcz and Irwin Mitchell gave him negligent advice as to settlement, in consequence of which he settled when he should not have done; and has suffered loss and damage accordingly.

[2]The trial before me was of a preliminary issue directed to be determined by Order of Jack J dated 22nd November 2005, which clarified and supplemented a previous Order of Jack J dated 15th July 2005. The agreed basis for the trial of the preliminary issue was that it should be decisive as to the issue of breach of duty. Quantum, if it arose, was to be left to a subsequent hearing (if quantum could not be agreed).

[3]At the trial before me, which lasted over 5 days, Mr Walker was represented by Miss Susan Rodway QC and Mr Paul Stewart. The First Defendant, Mr Chruszcz, was represented by Mr Jeremy Stuart-Smith QC and Mr Spike Charlwood. The Second Defendant, Irwin Mitchell, was represented by Mr Ben Elkington.

Background Facts

[4]In order to explain the basis for the present claim it is necessary to set out the background facts in a little detail.

[5]Mr Walker was born on the 27th July 1959. After leaving school, he worked for a number of years as a plant or site operative. He became experienced in driving vehicles used for such purposes, including hydraulic excavators and JCB's. He was awarded a Skills Training Certificate for Safety during 1989.

[6]In around December 1989 he started work for Gary Hather Plant Hire, a firm based in Rotherham, as a plant operative. The firm ("Hathers") had a number of machines, which were contracted out (with drivers) for use on various construction sites.

[7]On the morning of 17th January 1990, Mr Walker attended Hathers' yard in Rotherham. It transpired that there was to be a dispute as to why he did so. Mr Walker's position was that he reported for work. It was, however, common ground that Mr Walker's car had previously broken down. (Mr Walker had chosen to continue driving notwithstanding that at the time – although not disclosed to Hathers – he was subject to a driving disqualification order.) It was the position of Mr Hather that, on the previous day, he had explained to Mr Walker that he could not arrange for someone to transport Mr Walker to and from his place of work and that, in effect, Mr Walker was laid off until his car was repaired. Mr Hather further was to say that Mr Walker was only at the yard on the 17th January because one of Mr Hather's fitters had (on Mr Walker's request) collected Mr Walker who had been trying unsuccessfully to bring his defective car back from where he had had to abandon it. The position of Mr Hather was that it was only for that reason that Mr Walker was at the yard that day; and he was not there reporting for work.

[8]At all events, after he had returned to the yard on the morning of 17th January 1990, Mr Walker then left in a vehicle with another employee of Hathers, Mr Derbyshire, and they travelled to a site at Carlisle Street, Sheffield, where a JCB belonging to Hathers (the relevant driver being Mr Haynes) required refuelling. There was also to be a dispute as to how this came about. Mr Hather's position was that he had no idea that Mr Walker had gone with Mr Derbyshire. Mr Derbyshire was to say in a later witness statement that Mr Walker had been hanging around the yard, looking for someone to help him with his car, and simply asked him (Mr Derbyshire) if he could come along for the ride. Mr Walker's position, on the other hand, was that Mr Derbyshire asked him to go to the site to help with the refuelling, which was customarily (according to Mr Walker) a two-man job.

[9]At all events, there was and is no dispute that Mr Walker did go to the site and there was and is no suggestion that he was on the site unlawfully.

[10]Mr Derbyshire had brought with him two five-gallon drums of hydraulic fluid and it seems that the hydraulic oil tank of the JCB was filled before the diesel refuelling was undertaken. Mr Walker was to say that he assisted in that hydraulic operation; Mr Derbyshire was to dispute it, saying he did it on his own. Mr Haynes, at all events, then manoeuvred the JCB alongside the pick-up truck which Mr Derbyshire had driven to the site, for the purpose of refuelling. On the back of the truck was a tank containing fuel, which required to be pumped through a hose into the filler pipe of the JCB.

[11]The position of Mr Derbyshire and Mr Haynes was to be that refuelling was usually a one-man job, and they neither required nor expected Mr Walker- who, they said, had been sitting in the passenger seat of the truck – to involve himself in the operation. The position of Mr Walker was that he was there to help with the diesel refuelling, which he said was usually a two-man job, and in fact, according to him, he took hold of the fuel hose while Mr Derbyshire stood on the back of the truck to pump the fuel.

[12]There was also to be a pronounced disagreement between Mr Walker on the one hand and Mr Derbyshire and Mr Haynes on the other hand as to what happened next.

[13]I was shown photographs of the type of JCB being used at the site on that date. The driver's cab is so designed as to provide excellent all round visibility. On the left side of the cab is a step, which the driver can use to get into the cab (an operation which, it was said in evidence, could take a fit and experienced operative 1-2 seconds to do). There is also a handle set into the left side of the cab to assist in climbing up. On each side of the bonnet is a hydraulic arm attached to the bucket which would be lowered as the bucket was lowered – the maximum drop length of the bucket being in the order of 8 feet 8 inches - and on the top of the arm was a feed pipe used for the passage of hydraulic fluid. There is a ledge below that arm, rather broader at the driver's end and narrowing somewhat as it proceeds down the chassis. The fuel filler cap is sited somewhat to the left side of the bonnet, about 5 feet 3 inches above the ground.

[14]Mr Walker is 5 feet 8 inches tall. At the time he was a fit and wiry man. It was not in dispute that at that stage he got onto the JCB, putting his right foot on the step and his left foot on the ledge, below the hydraulic arm. It was common ground that he did so while the engine was still running, with Mr Haynes in the cab. According to Mr Walker, he did this in order to assist with the refuelling, he carrying the hose in his left hand for that purpose, which (according to him) Mr Derbyshire had passed to him. It was also common ground that Mr Haynes had manoeuvred the JCB near the truck with its bucket raised, but not to its full extent – perhaps some 2 feet off the ground. There was potentially some dispute as to what direction (forward or reverse) the JCB had been moving.

[15]In a witness statement dated 28th June 1994, Mr Walker described what happened in these terms:

"19. It was necessary for me to climb onto the side of the JCB. There are two reasons for this. The first reason is that the hosepipe from the diesel tank on the pick-up was about 6 feet long. The fuel tank on the pick-up was about 5 feet from the JCB. Since the hosepipe was so short it was necessary for me to hold the end of the hose inside the neck of the fuel filler cap or else the hose would have simply flipped out as soon as the fuel was pumped through. The second reason is that the fuel filler cap is about 5 foot 3 inches about ground level and 15 inches in from the door frame. I am 5 feet 8 inches tall. It is necessary to be able to look into the neck of the fuel filler cap to check when enough fuel has been pumped in. If this is not done the fuel may overspill onto the hot engine. 20. The JCB was stationary. The front shovel was raised about 2 or 3 foot off the ground. I put my right foot on the step at the side of the driver's cab door and put my right hand on the hand rail on the cab. I was holding the fuel pipe in my left hand. I pulled myself up onto the machine. I put my left foot onto the chassis of the JCB in order to get a firm stance. Roy Haynes, the driver, was sat in his cab facing forwards. He would have clearly been able to see me. 21. I unscrewed the fuel filler cap. I inserted the hose in to the neck of the fuel filler cap. I shouted to Derbyshire to start pumping. He started to pump the fuel through and I could feel the diesel surge through the pipe. Whilst Derbyshire was operating the pump and as I was stood on the side of the JCB the driver lowered the front shovel on to the ground. As he did this the hydraulic ram crushed my left foot against the chassis. I estimate that at the moment Haynes lowered the front shovel I was on the side of the JCB for about 30 seconds. 22. I felt tremendous pain and screamed out to the driver to stop. I could feel my foot being crushed. I let go of the fuel pipe and continued to scream but the driver did not raise the front shovel straightaway and as I continued to scream my foot continued to be crushed and eventually he raised the front shovel. I then fell off the side of the JCB. Both Hayes and Derbyshire came across to me. I told Haynes that he had crushed my foot. Both he and Derbyshire said that they never heard or saw anything. I hopped to the pick-up and I took my left boot off. Derbyshire said that the injuries were not serious. I knew that they were because of the amount of pain and also the fact that there were 2 splits on the muscle pad on my left instep below the ball of my big toe and on the sole of my foot."

At paragraph 25 he said this 16. "I estimate that it took about 60 seconds between climbing onto the side of the JCB for the accident to occur and for my left foot to be finally released from being crushed as the driver lifted the front shovel off the ground." And at paragraphs 33 and 34 of the witness statement he said this:

"33. I note Steven Derbyshire in his statement refers to a standard procedure for refuelling. He says "

It is always my practice to wait on the back of the pick-up for the machine to come along side and I have to wait for the arms of the JCB to be fully down on the floor so that I can get to the JCB tank". However, at the Masborough Street yard it was impossible to refuel a JCB digger with the front shovel on the ground. This was because the diesel tank used to refuel were positioned in a narrow fenced off area. It was only possible to drive the digger into the fenced off area so that the diesel tanks were on your left had side and there is a fence immediately in front of you. In order to get alongside the tanks it was necessary to drive right up to the fence and the front shovel had to be lifted a good 6 feet of the ground so that the shovel was raised clear of the fence. This meant that when refuelling a JCB digger at the yard it would be necessary to stand on the chassis with your left foot underneath the hydraulic arm. I understand that the diesel tanks were repositioned after my accident. 34. At no time whilst I was working for Gary Hather did he warn me about how to refuel a JCB digger or warn me not to climb onto the side of a JCB digger whilst the front shovel was off the ground. I was not told about any safety procedures at all whilst at Gary Hathers."

At paragraph 25 he said this

[16]In a relatively short witness statement dated 22nd March 1991 Mr Haynes described the position in this way:

"Stephen Derbyshire then suggested that whilst he was there he would fill the JCB with diesel from a tank on the back of the pick-up. Dieseling is usually carried out by one person only and I expected Stephen Derbyshire to do this job. The pick-up was parked on sludgy ground and Stephen said he would move it to dryer ground and he asked me if I would move my machine to a position alongside the pick-up. The pick-up was parked and Stephen got onto the back of the vehicle whilst I manoeuvred the JCB alongside. I noticed that as I was manoeuvring, Mr Walker was still in the cab of the pick-up. I had to reverse first of all in order to get as close as I could to the pick-up. I then drew forward travelling slowly at no more than 5 mph to a position alongside the pick-up. At this point my bucket would be one or two feet off the ground. I then dropped my bucket and all of a sudden heard a shout. I looked towards where the sound was coming from and saw David Walker on the side of the machine and I immediately realised what had happened. I raised the bucket to free Mr Walker's foot. I have since learned that Mr Walker jumped onto the side of my machine whilst it was still moving but I did not see him get out of the pick-up or jump onto the machine since I was concerned with manoeuvring the JCB into the correct position. The bucket stops immediately the control lever is released. Having said that the bucket arm which trapped Mr Walker's foot would only have to move a very short distance and it is unlikely that I would have been able to prevent the injury even if I had seen Walker jump onto the machine. At the time of the accident I was more concerned with looking out for traffic although when I heard the shout, I was looking forwards and was not distracted by anything else. I certainly did not expect anybody to jump onto the machine and this is something which should never be done for safety reasons. It is certainly not usual practice for whoever is dieseling the machine to jump onto it whilst it is still moving. Whenever the refuelling exercise is undertaken, there is never any problem. There is never any strain on the hose as described by Mr Walker, and Mr Derbyshire always undertakes this task alone whilst I remain in my machine."

[17]Mr Derbyshire put in a witness statement dated 28th March 1991. He too said that the usual practice was for one person to do the refuelling; and that:

"It is always my practice to wait on the back of the pick-up for the machine to come alongside and I have to wait for the arms of the machine to be fully down on the floor so that I can get to the JCB's tank. The JCB driver can see me on the back of the pick-up, he will bring his machine slowly to a halt, he switches off the engine and waits for me to climb onto the JCB. To refuel his machine, he remains in the machine as it is a one-man job to refuel the JCB. The hose I use to refuel is of adequate length and is some 15 feet long." 21. "

On the day in question, I had no way of knowing what Mr Walker was intending to do, he certainly never told me Unknown to me and without my instructions it appears that he must have jumped onto the JCB, although I did not see him do this because I had my back to him. I heard a scream and turned round to find that Mr Walker's foot had become trapped as the arms of the JCB were lowered, I do not know why he did this, in my view, it is a matter of common sense not to jump onto moving machinery, I certainly did not ask him to do this and I did not expect him to."

[18]Mr Walker was taken to hospital. The consequences of the injury he suffered were to prove appalling. He endured a series of operations. First, his toes had to be amputated. Gangrene developed and in a further operation his left leg was amputated below the knee. Further complication arose (perhaps in part because of a pre-existing injury) and eventually in 1996 Mr Walker's leg had to be amputated above the knee. It is only too easy to imagine the pain and distress that will have been caused to Mr Walker, as well as the effects on him psychologically and personally.

[19]While he was on the ward in hospital in January 1990, Mr Walker was given the name of a firm of solicitors, Wilford Smith. A representative of the firm prepared an internal accident report on 28th January 1990, having interviewed Mr Walker. That in part read as follows "I stand at side of pick up to receive pipe from pick up from fitter who was already on back of pick up. Passed pipe to put into diesel tank on machine. I turned around when received it – JCB just coming to halt. Bucket raised approx 2-3' whilst reversing. Put right foot on step o/s drivers door & right hand on rail, pipe left, pull up foot onto chassis of JCB to stand firm. Unscrew cap from diesel tank on bonnet, opp end door hydr cap, (end bonnet), nearest to cab. Driver saw me when got up & balancing. Driver starts lowering bucket (arms moving↓) Foot still on chassis. Lifting ram hit foot wedged against chassis & ram. Screamed out. Did not hear me. Fitter still on pickup. "

[20]For its part, Hathers had contemporaneously recorded the accident in its accident book, describing it in the following way: "Man had jumped on JCB while driver lowering arms".

[21]On the 6th February 1990 Mr Walker signed a witness statement, which was disclosed to the Legal Aid Board and, in due course, to Hathers' solicitors. Amongst other things it said this:

"He came to a halt. I put my right foot on the step. I was holding the pipe in my left hand and I did this in order to pull myself up onto the machine. I was trying to gain access to the diesel tank cap…I put my left foot on the chassis of the JCB in order to get a firm stance. The driver was in the cab throughout this process. He saw me when I got up and also saw me when I was balancing on the step and chassis. Just as I had got myself into a steady position with my foot still on the chassis the driver started to operate the hydrolic (sic) rams to lower the bucket onto the ground…."

[22]On 28th February 1990 Mr Walker also signed a statement for Mr Allen (the Accident Investigation Officer). That, among other things, said this:

"The fitter passed the diesel filler pipe to me, as I turned round with the pipe in my left hand the JCB stopped alongside me, I put my right foot on to the step, got hold of the machine handrail to get up and in doing so put my left foot on to the chassis to get firmly balanced and began to undo the diesel filler cap. At this moment I felt the ram casing pressing on to my left foot and I screamed out – to no avail – as the pressure increased. I dropped the pipe and grabbed hold of the front bucket operating arm, still screaming in pain, then the pressure was released and I fell to the ground in excruciating pain…"

[23]Legal Aid (unconditional) was in due course granted to Mr Walker to pursue a claim against Hathers. A letter before action was sent. Liability was firmly denied by Norwich Union (Hathers' insurers) by letter of 3rd August 1990. The letter set out Hathers' version of events and stated that Mr Walker ought to have been aware of "the dangers of such foolhardy actions".

[24]Mr Walker had at this time also been seeing doctors with a view to a medical report being disclosed for the purposes of the litigation. The medical report of Mr Zaman (Consultant Orthopaedic Surgeon) dated 9th June 1990 included this statement:

"The circumstances of the accident as stated by the patient are that while he was climbing on the machine the hydraulic arms were coming down and his left foot was trapped…"

. On 18th June 1990 Mr Walker confirmed his agreement with that report. However, at a later stage Wilford Smith noted that this report of Mr Zaman (based on what Mr Zaman said Mr Walker had told him) was inconsistent with Mr Walker's witness statement (indeed would have been consistent with the Defence case). In due course, Mr Zaman acceded to a request to delete this passage from his report to be disclosed.

[25]The writ against Hathers was issued out of the Sheffield District Registry of the High Court on 15th October 1990. The Statement of Claim was settled by Mr Simon Gash of Counsel. Before proceedings were issued (and before the formal statements of Mr Hather, Mr Derbyshire and Mr Haynes were served) Mr Gash had advised that it was "almost certain" that Mr Walker would succeed in establishing primary liability, albeit cautioning that he may be held to have been guilty of a degree of contributory negligence. The description of the accident, as pleaded in the Statement of Claim, averred (in paragraph 5) that Mr Derbyshire gave the hose to Mr Walker, who then climbed on to the JCB: and "As the Plaintiff was attempting to place the hose in the filler pipe, the said Haynes suddenly operated the controls…" Negligence was alleged. Extensive particulars included, among other things, an allegation of failure to devise, provide and maintain a safe system of work; providing a hose which was too short; failure on the part of Haynes to keep a proper look-out; failure properly to instruct or train Haynes and Mr Walker; and other such particulars. By Further and Better Particulars served in December 1990, it was stated that the Plaintiff was positioned with one foot on the chassis and one on the step before he suffered the accident for "between 30 and 60 seconds".

[26]By its Defence dated 15th November 1990 Hathers denied liability. It denied that Mr Walker was acting in the course of his employment at the time of the accident. In paragraph 3 this was averred:

"It is averred that whilst at the said site the Plaintiff, without permission or authority, negligently jumped onto the JCB digger whilst the same was being manoeuvred by its driver and whilst the bucket thereof was being lowered and that in so doing the Plaintiff placed his foot between the bucket lowering mechanism and the chassis of the digger."

By paragraph 6 it was pleaded that:

"The accident was exclusively the fault of the Plaintiff but [if] not was materially contributed to by his own negligence."

Full particulars were given.

[27]At a later stage, both the Statement of Claim and the Defence were amended. The amendments to the Statement of Claim included reliance on the Construction (General Provisions) Regulations 1961 and the Construction (Working Places) Regulations 1966, as well as the Employers Liability (Defective Equipment) Act 1969. The main purpose of pleading reliance on the statutory Regulations seems to have been to add (in the alternative) further particulars of negligence.

[28]Mr Walker had been hoping that Mr Derbyshire, at least, would support his case. In that he was disappointed. Mr Derbyshire's stance from the outset was that Mr Walker was entirely to blame.

[29]When the witness statements of the Hather witnesses were served, and sent to Mr Walker, he reacted most strongly. He said, in his written comments on them provided to his solicitors, that Mr Hather was lying. Mr Haynes was described in a number of places as a "lying bastard" or "dozy bastard". Mr Derbyshire was accused of "covering his own back with lies". Mr Walker's perception clearly then was (and, as it seems to me, still is) that the Hather witnesses were deliberately lying in order to evade all liability.

[30]On the 29th November 1991, Elliot Mather Smith replaced Wilford Smith as Mr Walker's solicitors. Early in 1992, they instructed Mr Christopher Makey of counsel to advise on liability, enclosing all relevant papers (including the various witness statements). The instructions, among other things, mentioned that the solicitors had discussed the case with Mr Walker and "have cautioned him as to his prospects for success. Mr Walker seems to have some difficulty in accepting that his claim rests largely on whose account is accepted by the Court…your instructing solicitors are far from happy with the evidence, there being no corroboration of Mr Walker's version of events". Mr Makey provided a full Advice on 27th March 1992. Under the section of the Advice headed "Primary Liability", Mr Makey said this:

"I have read the Plaintiff's comments on the statements of Hather, Haynes and Derbyshire. He in no uncertain terms accuses them of lying and suggests that Haynes and Derbyshire have been influenced by Hather. This is clearly a difficult case that will in the end be decided on the basis of witness credibility." 35. "

I am of the opinion that there is a chance that the Defendant's case will not stand up under cross examination … this is very much a case of one person's word against two others. For this reason I would say that the Plaintiff's case is at best arguable and if it is found that he was on the JCB without the hose, the likelihood is that this claim would fail."

[31]Similar caution was expressed by Elliot Mather Smith in further instructions in April 1993; and by Mr Makey in two separate advices dated 5th May 1993 and 3rd June 1994. The view was expressed that the case would very largely turn on the view of the trial Judge of the evidence of the witnesses and that there was a complete conflict of fact.

[32]In the meantime, an expert engineer, Mr Barker, had been instructed on behalf of Mr Walker. In the course of his report dated 10th December 1993 (which was disclosed to the Defence solicitors) Mr Barker records that "He [Mr Walker] told us that he had been there [on the JCB] for some 4-5 seconds, and had in fact removed the screw cap from the diesel tank. He told us that he also had the diesel hose in his hand ready to insert into the tank opening." The last part of the sentence is not readily consistent with paragraph 21 of the exchanged witness statement of Mr Walker ("I could feel the diesel surge through the pipe") and the first part is flatly inconsistent with the timings given in his witness statement and the pleaded case. It was said – and there may have been some support for this – that Mr Barker in his notes miswrote "4-5" for "45" or wrongly transcribed his original manuscript notes: although Mr Barker, when the point was later discussed with him, does not seem - initially at least – to have accepted that.

Irwin Mitchell

[33]On the 31st August 1994 Irwin Mitchell took over the case from Elliot Mather Smith. (Mr Walker candidly told me in evidence that he did not like the way Wilford Smith and Elliot Mather Smith had progressed his case or the advice that they were giving him). Mr Thomson was the relevant solicitor. Irwin Mitchell, as is well known, has a particular expertise in, among other things, personal injury cases. That was Mr Thomson's own area of expertise.

[34]There is no doubt that Irwin Mitchell took on a most difficult client. I intend no disrespect to Mr Walker in saying that, and every allowance must be made for the grievous injury he had suffered, for the series of operations he endured, for the stress and anxiety he must have been feeling and for various personal problems he was experiencing at the time. But the file records a constant pattern of intemperate abuse of anyone who proffered a view Mr Walker did not like. At one stage, for example, he is recorded as saying that any Judge who found him to have been contributorily negligent would be a "fucking fool". At another stage he accused the various doctors who had seen him of conspiring against him. At another stage again he attacked Mr Barker as being in league with the defence. Mr Walker's mindset seems to have been that he was telling the truth, that Hather, Haynes and Derbyshire were telling lies and therefore he must succeed in establishing negligence. One can perhaps understand that mindset from a lay perspective. Much more difficult to understand is Mr Walker's persistent refusal to acknowledge even a prospect of a finding of contributory negligence. He was entitled to say at trial that he had had no instruction or training from Hathers. He was also entitled to say that what he did was in accordance with usual practice at Hathers: although there were clear difficulties in that. For example, that JCBs were refuelled with the bucket up at Hathers' yard (as opposed to the procedure adopted on the construction sites) can be explained by the fact that –as Mr Walker himself explained in evidence before me - the shape of the yard, and the positioning of a fence there, required that to be so; indeed Haynes' and Derbyshire's evidence that refuelling on site ordinarily occurred with the bucket lowered was consistent with the very fact that Mr Haynes did lower the bucket on this occasion: a procedure which also accorded with the - admittedly recent – recommendations in the JCB Safety Handbook. Moreover it is hard to conceive of any justification for getting onto a JCB for the purpose of refuelling when the engine was still running, let alone (as Mr Haynes perhaps seems to have been saying) when the JCB was still moving. My own view is that on any version of events a finding of contributory negligence was on the cards: and an estimate of up to 50%, depending on the circumstances, was not an unrealistic one. The only surprise would have been if Mr Walker had not been so advised by his lawyers, unwelcome though that advice may have been.

[35]Be that as it may, Mr Thomson applied himself conscientiously to the advancement of Mr Walker's case. Although, as he told me in evidence, he found Mr Walker to be among the most difficult clients he has ever experienced, Mr Thomson believed in his case and was sympathetic to Mr Walker's situation. The broad position of Mr Thomson was, as he told me and I accept, that he felt positive about the case (although he never thought that Mr Walker could win 100%) but there was a risk he could lose altogether.

[36]A further witness statement was made by Mr Walker on 9th November 1994 (which was disclosed to the Defence). This continued to say, among other things, that Mr Walker stood on the side of the JCB for "between 30 and 60 seconds before the accident occurred." It also expanded somewhat on the refuelling process Mr Walker said he was undertaking. He said also that the fact that the hose was too short meant that he had to remain on the JCB whilst the machine was being refuelled (viz. to stop it coming out of the filler pipe).

[37]In February 1995 Irwin Mitchell instructed Mr Henry Witcomb of counsel. The instructions were full and careful and addressed the relevant issues, drawing attention to the differing versions of events being put forward in the various witness statements. The view was expressed that the statement of Mr Haynes provided "strong evidence of negligence". It was suggested that the amount of time Mr Walker was standing on the JCB was "the crucial factor" in establishing negligence on the various differing versions (including those of Mr Walker himself). There was a long conference with counsel on 3rd March 1994 attended by Mr Walker, Mr Thomson, Mr Barker and a care consultant. As the attendance note shows, the issues were fully explored, although the note does not record any advice from Mr Witcomb as to the prospects of success in establishing negligence. An amount of further information was recommended to be collected. Mr Witcomb also advised that leading counsel be instructed. He confirmed this by a brief written Advice of 28th March 1995, saying:

"It is clear both liability and quantum will be live issues at trial. The former is not without complication …"

[38]The financial pressures on Mr Walker were becoming increasingly acute. He was also, naturally enough, very concerned at the delay in his case coming on to trial. At all events, an application for interim payment was issued on the 3rd February 1995. It was supported by a detailed affidavit of Mr Thomson. This exhibited, among other things, the statements of Mr Walker, Mr Hather, Mr Derbyshire and Mr Haynes. Mr Thomson deposed to a belief that Mr Walker would, if the action proceeded to trial, obtain judgment for substantial damages. In the event, after a contested hearing, the application was dismissed by District Judge Bellamy on 22nd March 1995. The note of hearing records that District Judge Bellamy's reason for refusing the application was his view was that there was "serious doubt as to whether the Plaintiff would succeed at trial". Mr Walker was informed accordingly. There was no appeal.

[39]During 1995 the pleadings were amended. In addition, a further expert's report was obtained, from a Mr Freytag, on 18th July. That included the comment "much, in this case, it seems to me will depend on [the] evidence". It seems that at one stage it was contemplated that Mr Freytag might give evidence as expert in place of Mr Barker (in part because of Mr Barker's original report referring to the "4-5 seconds"): but eventually that proposal was not pursued. The position was, for example, discussed in an internal Irwin Mitchell note of 9th November 1995.

[40]Although the papers before me were incomplete on this, it seems that Hathers' solicitors had made a payment into court. In September 1995 this sum had been increased to £40,000 (although as the Defendant had also paid the social security benefits, liable to CRU recovery, of £40,288.09 in effect the payment in was taken to equate to £80,288.09). This was discussed between Mr Thomson and Mr Walker on 2nd October 1995. It was noted that the issue of quantum was still uncertain, in particular because Mr Walker was facing a further operation involving amputation above the knee. It was decided not to accept the payment in and to proceed to trial. It was also confirmed that leading counsel would be retained (as Mr Witcomb had previously recommended). In due course, on Irwin Mitchell's application, an order for a split trial was made on 21st December 1995, the initial trial being on liability.

[41]In March 1996 the conduct of the file was transferred by Mr Thomson (who was moving to another office of Irwin Mitchell) to Mr Ireland, also experienced in personal injury claims. Mr Ireland familiarised himself with the papers. The evidence of Mr Ireland, which is consistent with the attendance notes and which I accept, was to the effect that he too was sympathetic to Mr Walker's case and was positive about it, although thinking that there were risks in establishing liability, as well, of course, as there being the issue of contributory negligence to be confronted. Mr Ireland in fact told me, and I accept, that difficult though Mr Walker was – a point illustrated by the contents of his attendance note dated 25th March 1996, recording his first meeting with Mr Walker - he felt that generally he got on well with him and had something of a rapport with him.

The involvement of Mr Chruszcz QC

[42]On 25th March 1996 Instructions were sent to Mr Chruszcz. This was his first involvement in the case. The instructions were detailed and included all relevant materials. They included an appraisal of the various witness statements. It was suggested that elements of Derbyshire's and Haynes' statements "don't ring true". The inconsistencies in Mr Walker's case as to the time he stood on the side of the JCB were also noted. Leading counsel was requested to advise on liability, quantum and evidence. The consultation was to be attended by Mr Walker, Mr Ireland, Ms Evison (assisting Mr Ireland), Mr Barker and Mr Freytag.

[43]Mr Chruszcz was called to the Bar in 1973. He was appointed an Assistant Recorder in 1986, a Recorder in 1991 and Queen's Counsel in 1992. Currently his practice is almost entirely devoted to criminal work; but by the mid 1980's his practice was almost entirely personal injury litigation (more often than not acting for claimants). By 1996 his practice had become about half crime and half personal injury. Mr Chruszcz told me, and I accept, that he neither regarded himself as, nor had the reputation of being, a "settler". It is, I think, a reasonable assumption that Irwin Mitchell (who instructed Mr Chruszcz regularly at this time) would to some extent have selected him as leading counsel in this case not only for his expertise in cases of this kind but also – given the nature of the case and of the client – for what would be perceived as a robust and firm approach to the litigation.

[44]There is a very detailed attendance note of this consultation. Although Mr Walker was minded, in his evidence, not to accept parts of it as accurate, I have no reason to think that it is anything other than accurate – accepting always that the note is a summary and not a full record of every interchange or point of discussion.

[45]The note of consultation records Mr Chruszcz – who, as it happens, had quite extensive personal experience of driving JCBs - addressing the issues of Breach of Statutory Duty, "Misfeasance" by the JCB driver (as the note records it) and Omission – driver and fitter failing to check before proceeding. The note records Mr Chruszcz saying (although the words actually used may have been different):

"The chances of establishing any of these rest solely on DW's account"

. There was recorded a discussion with Mr Barker about how it was that "4-5 seconds" had been included in Mr Barker's report as disclosed. There was detailed discussion with Mr Walker about the circumstances of the accident, including a passage when Mr Chruszcz concentrated on the time period involved. He is recorded as saying, in the light of what Mr Walker was telling him as to refuelling, that he believed, given that sequence of events, 20 seconds was the absolute maximum needed; Mr Barker and Mr Freytag feeling that was probably a lot less. It is noted that Mr Chruszcz "established" that it would take "2-3 seconds maximum" for the bucket to lower. Mr Chruszcz is also recorded as expressing the view that people would not ordinarily stand on the chassis but on the step. There is a sentence to this effect:

"CC put it to DW that 4-5 seconds on the JCB would have been about right. The period of 45 seconds concerned him, it seemed a long time. What was he doing all this time?"

Mr Walker gave his explanation; Mr Chruszcz commented that Hathers (by Mr Derbyshire and Mr Haynes) were saying he was "lying". There was a discussion about training, and a lengthy discussion of the circumstances in which, according to Mr Walker, he came to be at that particular site that day. The note records that Mr Chruszcz advised that it was "almost certain" that the court would attach some measure of blame to Mr Walker (at which, so the note records, Mr Walker became angry and upset). Other points were debated. It was also decided only to call Mr Barker as expert. There was discussion about quantum – although it was known that Mr Walker was facing a further amputation operation, which would affect the situation. Reverting to contributory negligence, Mr Chruszcz is recorded as stating a view that there would be up to 50% allowed for this; he is also recorded as advising "There was also a small risk that liability would not be established. The advantage of settling would be that these risks would be avoided". Mr Walker was recorded as being "most unhappy about all this advice".

[46]On quantum, Mr Chruszcz advised that it was impossible to say what the final level of damages would be, not least because of the forthcoming operation. He is recorded as advising that the case had a conservative total value of £300,000. (I add that, especially in the light of the subsequent amputation operation, all counsel before me – as, indeed, did Mr Chruszcz in his evidence to me – agreed that that was indeed a very conservative valuation and that the claim could realistically be put at significantly more than that). The £82,000 odd on the table was advised to be rejected. It was also agreed that the trial should not take place until Mr Walker was fit to appear after his forthcoming operation.

[47]There is no doubt that (as had happened before) Mr Walker behaved most intemperately at this consultation. He clearly was very angry at what he was hearing and was aggressive and truculent. The attendance note records Mr Chruszcz – who, I am sure, was trying to deal courteously but firmly with Mr Walker – on a number of occasions warning Mr Walker as to his behaviour and that if such behaviour were repeated at trial it would have an adverse effect on his case – at one stage, he is recorded as advising that it would "ruin" his case before the Judge. The attendance note concludes with it being recorded that Mr Chruszcz "stressed again that there were problems with liability in the case and a lot would depend on the Judge perceiving DW as an honest, reliable witness. His present attitude would not endear him to the Judge …" The closing passage in the Note records Mr Walker saying that he wasn't normally this bad, it was the waiting for his operation which made him aggressive. Mr Chruszcz is recorded as responding that in his present frame of mind Mr Walker was his own worst enemy.

[48]Mr Walker remained very unhappy with the advice he had been given by Leading Counsel. He said so to Mr Ireland at a meeting on the 3rd April 1996: the attendance note recording Mr Walker as being "adamant that he should succeed in full with the claim". There was a discussion about contributory negligence; Mr Walker made clear that he would never accept a finding of contributory negligence. The attendance note then records this:

"I said to David that it is my opinion and that of Charles Chruszcz and also that of Mark Thomson who had the case before me that on paper we would be able to establish primary liability but I told David that he was his own worst enemy and I said to David that if he adopts the same attitude in court as he adopted in previous meetings with me and during the recent conference then I said he will fail to establish liability and will therefore receive no damages"

. I think that that accurately reflected Mr Ireland's perception of the matter.

[49]That view was repeated by Mr Ireland, when he wrote a detailed letter to Mr Walker on 12 April 1996, enclosing the note of the consultation. The letter, among other things, said:

"To summarise , I and Charles Chruszcz consider that on paper you have a good chance of establishing primary liability … but we think a deduction from the award made on the basis of your contributory negligence is inevitable. A little later on in the letter he said this: 55. "

Of course there is a very real risk that you claim will fail if the trial Judge is unimpressed by your evidence and/or the manner in which you give your evidence … there is the chance that the defendant's case will not stand up under cross-examination. But as this case will turn on the view taken by the trial judge of all the evidence it is absolutely vital that you get the Judge on your side and I am sorry to have to say this but if you adopt the same attitude in court as you have adopted during our previous meetings then it is likely that the trial Judge will find against you especially as the defendant's barrister will then go all out to attack your credibility. If this were to happen, it would be a tragedy because I think that you are entitled to a payment of compensation on your version of events. I expect you to take careful note of the above …" A similar view was adopted by Mr Ireland at a meeting with Mr Walker on 25th July 1996. Mr Walker's attitude then was still to refuse to acknowledge anything less than total success.

[50]In April 1996 Mr Walker underwent the further operation, when his left leg was amputated above the knee. He resumed contact with Irwin Mitchell quite shortly thereafter. Attendance notes record him as being bellicose and critical of the doctors, the lawyers and the system.

[51]In July 1996 the Defendant put in the report of their expert, Mr Tomasin dated May 1996. That addressed the issues by reference to the competing factual hypotheses. It also addressed contributory negligence. On Mr Walker's account of events, the view was stated that Mr Haynes may be considered partially responsible for the accident but Mr Walker's actions were "the primary factors affecting causation". The conclusion was that, among other things, the Court would need to decide "whether Mr Walker's account of events was correct or whether Messrs Hather, Derbyshire and Haynes' accounts were correct. In any case, it is my view that Mr Walker was primarily responsible for his own accident and that the actions of Mr Haynes may have had a contributory effect but to a much lesser degree". It is plain from that report that liability was not being conceded: that it was dependent on whose version of events was accepted. Contributory negligence was in any event being asserted in an amount, by implication, greater than 50%.

[52]In July 1996 Mr Ireland tested the water for a possible settlement with Hathers' solicitors, without success.

[53]In August 1996 Mr Walker raised with Mr Ireland the prospect of the JCB filler pipe having an "L" shape, or 90 degrees bend, just below the filler cap – this evidence being designed to help show that a person was needed to keep holding the hose in the filler pipe to enable refuelling to go ahead. On 1st August 1996 Mr Ireland had himself written to JCB, asking among other things how long it would take the bucket to be lowered to the ground, if fully raised and if half raised, and also asking about a "U" bend in the filler-pipe. JCB responded on 26th August 1996. Loader end drop time from full length was put at approximately two seconds and from the half-way position approximately one second. It was also said that the filler pipe had no "U" bend but simply fuelled the tank through a "90 degree unrestricted flow elbow". Mr Ireland raised further queries on this last point by letter to JCB dated 20th September 1996. A reply to this (after chasing) was received by letter from JCB dated 9th December 1996 enclosing a memorandum and plan (received by Irwin Mitchell on 10th December 1996). That drawing did not, or at least not obviously, indicate any restrictive "L" shape. Whether fuel filling was a one or two man operation was said to depend on several factors, some of which were then set out. The memorandum concluded:

"The comment however was that in 90% of cases the operative stood on the main frame and steps in order to fill the tank. The main reason was to avoid spillage."

Irwin Mitchell immediately sent a copy of the reply from JCB to Mr Chruszcz.

[54]Mr Walker was taking a keen interest in the progress of the case towards trial, now fixed for 12th December 1996. He contacted Mr Ireland regularly. On 27th November 1996 Mr Ireland had sent a brief to Mr Chruszcz. It was a comprehensive document. It enclosed, among other things, a provisional trial bundle, previous Advices of counsel, the note of consultation of 29th March 1996 and the JCB letter of 26th August 1996 (as to which counsel was asked to advise whether it should be included in the Bundle). It analysed the evidence and issues. Having done that, the Brief said:

"Given the above mentioned circumstances, it is possible but we feel unlikely that the Plaintiff's claim will fail in its entirely unless the Plaintiff contributes to his own downfall by his demeanour and behaviour in court"

. A deduction of 50% for contributory negligence, however, was said to be "likely" (although it was said that Mr Walker "vehemently disputes" that.) On the experts' reports it was said "As success or failure will largely come down to the factual evidence, there is not a great deal we can say about the experts reports". The concluding summary offered the view:

"We feel that if the Plaintiff is able to control his temperament (sic) then he ought to succeed in establishing primary liability against the Defendant …"

A little later on in the letter he said this:

[55]On 4th December 1996 Mr Chruszcz gave advice over the telephone that the Bundle was "fine". The attendance note also records (I have no doubt accurately) Mr Chruszcz saying words to the effect that if Mr Walker acted at trial like he acted in conference then this was a "nothing" case.

[56]On the 9th December 1996 Mr Ireland spoke to Mr Walker on the telephone. The discussion was in by now familiar vein. Mr Walker was aggressive and critical. Mr Ireland, for his part, reiterated, as the attendance note records, that "If we are to have any chance of success at the end of the week then he will have to behave himself in court …"

[57]Brief skeleton arguments were lodged by Mr Chruszcz and his opposite number in the early part of December. Mr Chruszcz identified one issue as to how Mr Walker came to sustain injury and another as to whether he was the author of his own misfortune. The Defendant's skeleton argument identified one issue as being "At what stage did the Plaintiff place his left foot on the chassis member? Defendant says as loading ram was being lowered". It was made clear that primary liability, as well as contributory negligence, was in issue.

The trial date

[58]The venue of the trial was Leeds County Court: the action itself, of course, was a High Court action (Sheffield District Registry) and the trial Judge was HH Judge Coles QC, sitting as a Judge of the High Court.

[59]Mr Ireland and Ms Evison collected Mr Walker by car early that morning and drove him to the court - a journey of considerable distance. Naturally they discussed the case on the way. The importance of remaining calm in the witness box was explained to Mr Walker. Mr Walker's work boots (which he had worn on the date of the accident) were brought with him.

[60]What then happened is recorded in two attendance notes made by Ms Evison and Mr Ireland, one relatively short, one relatively detailed. Although Mr Walker challenged the accuracy of these notes in some respects, I have no reason to think they are not an accurate summary of events – albeit of course not a precise record of everything that was said. I have taken the full contents of those notes carefully into account.

[61]Mr Walker arrived at around 9.15- 9.30am and Mr Chruszcz very shortly thereafter. Mr Barker also attended. The Defence also attended: all their witnesses were present. Mr Chruszcz's opponent was Mr Richard Swain of counsel, who had settled the original Defence. Mr Chruszcz knew him to be a thoroughly competent, sensible and business-like opponent. At no stage did Mr Swain approach Mr Chruszcz suggesting any settlement. Mr Chruszcz's recollection is that Mr Swain was "bullish" about the prospects for the Defence.

[62]Although the timings are not altogether clear, the evidence suggests that pre-trial discussions occurred which lasted between 1 ¼ and 1 ½ hours.

[63]The shorter attendance note records the position in this way:

"Lengthy conference with Counsel and the engineering expert, Mr Barker, prior to the trial itself. Certain details were checked over with David, and it became clear that he would not be a good witness, his recall of events was patchy, and he was prone to making errors over even simple facts in the statements. It was put to David very clearly both by Counsel and by TSI [Mr Ireland] that the evidence in this case is extremely difficult, and there are several large scale issues to be addressed, and it is by no means certain that we could satisfy the Court on some of the salient points. In view of his likely inadequacy as a witness, Counsel felt that it was worth thinking very seriously about accepting the Plaintiff's offer, which at that stage stood at £80,000. David was not happy with that advice. However, after lengthy discussions with Counsel and Steve, in which they expressed their view that it would be much safer to take the money on the table rather than take this case which is after all doubtful into the Court room, David instructed Charles that he could approach the other side to see whether any more money would be available. The other side indicated that they are prepared to raise their offer to £90,300 in an attempt to settle the case. Charles said that he would try and get this higher but David accepted in principle that we would settle the case rather than running it through trial. In negotiations Charles was able to raise the offer further to £95,000 and we accordingly went before the Judge and Judgment was entered for the Plaintiff."

The note also records at the end that, on the return journey, Mr Walker was in a "much more positive frame of mind about the settlement".

[64]The longer attendance note summarises the matter in more detail. It was recorded in the note that Mr Chruszcz took the opportunity of going through his statement with Mr Walker in the presence of Mr Ireland and Ms Evison and, at times, Mr Barker, and to "gently cross-examine him on it". It was suggested at the trial before me that Mr Walker was, in effect, subjected immediately to a fierce and unsympathetic grilling by Mr Chruszcz. But that is not the tenor of this note and I accept the evidence of Mr Chruszcz and Mr Ireland which was to the effect that a few questions, moderately put, showed Mr Walker to be (even by reference to his prospective evidence in chief by way of witness statement) vague and inconsistent as well as very aggressive. As the Note records, "it was clear that David would not make a good witness". Mr Chruszcz said in his Witness Statement in this action and in his oral evidence that Mr Walker so far from not having improved in his manner and performance since the March consultation (which he described as "awful") had got much worse: and the impression was one of aggression, rudeness and evasion. I accept that evidence.

[65]Miss Rodway made the point that one has to distinguish the position relating to Mr Walker's behaviour before he was given the unwelcome advice to settle and after. That is to some extent so; but the evidence shows that Mr Walker's behaviour, and likely impact as a witness, was assessed to be lamentable before the advice to settle was given.

[66]The attendance note records Mr Chruszcz giving Mr Walker his opinion at this stage that he would not be a good witness (stressing his intention not to be hurtful). It was recorded, on the employment issue, that there was "every chance" that Hathers might establish that he was not employed, in which case all of the arguments about statutory duty "would go out of the window". On the accident itself there were "serious issues"; and the Judge might "find the evidence of Haynes and Derbyshire more convincing, particularly as there were two of them, in which case David would receive nothing". The note records at this stage:

"CC said that in his view this was not a case which he would wish to see in court, he thought there were serious risks that David would go home without a penny, whereas if he accepted the money on the table he would at least have something"

. The note records Mr Walker resisting this suggestion: but the risks were repeated to him. At one stage, as the Note records it, it was said that "even if David was a star witness in the box, there was a very real danger that the Judge would prefer the evidence of Haynes and Derbyshire."

[67]Having given that advice, Mr Chruszcz went away. He did so being aware of Mr Walker's unhappiness and so that Mr Walker could talk to Mr Ireland, with whom Mr Walker had had much contact over the preceding months. Both Mr Ireland and Ms Evison then expressed the view to Mr Walker that to take the money was the right decision but the final decision was Mr Walker's. Mr Chruszcz then discussed matters with Mr Swain and returned, indicating that the other side would raise their offer to settle to £90,300 (with costs) which, after CRU payments, would leave Mr Walker with £50,000. (Mr Chruszcz thought that he may briefly have proposed a percentage basis of settlement to Mr Swain; but if so it was speedily rejected and at all events was not of sufficient significance in the discussions to find mention in the attendance notes.) An extra 15 minutes was obtained from the Judge for further consideration time. Mr Walker then was given some time to compose himself, and he went to the washroom for that purpose. On the way there, he said to Ms Evison that he felt he was running away and querying the fairness of the position. Ms Evison is recorded as associating herself with the advice given but repeated that the decision was his.

[68]In the event, on his return Mr Walker, after a brief discussion with Mr Ireland, said that he would accept the money on offer. Mr Chruszcz then managed to negotiate the sum up to £95,000 (plus costs). The matter was then mentioned to the Judge in court: and the consent order was then made.

[69]The attendance notes show that after that all involved (including Mr Barker) were concerned to reassure Mr Walker that he had made a sensible decision. Mr Walker nevertheless clearly was aggrieved and felt in part that it was due to Haynes and Derbyshire being prepared to tell lies. Mr Walker continued to express unhappiness, particularly to Ms Evison (as the note records). On the journey home, however, Mr Walker's attitude seemed to become more positive and he thanked Mr Ireland, in complimentary terms, for all he had done for him.

The present proceedings

[70]Mr Walker's attitude soon changed. The day after, he rang Mr Ireland making strong complaints about what had happened and also complaining that the evidence from JCB had not been properly prepared or deployed. He said that he felt he had been pressured into settling and that it was against his better judgment. Mr Ireland rebutted those assertions by letter dated 17th December 1996. Mr Walker said that he wished to make a formal complaint. His dissatisfaction was discussed by him with Mr Pickering (a partner of Irwin Mitchell) on the 3rd February 1997. Mr Pickering dealt with the points being made by Mr Walker. There then seems to have been no further communication.

[71]On the 11th December 2002 (one day before the expiry of the relevant limitation period) these proceedings were commenced. The Claim Form and Particulars of Claim were served on 26th January 2003, without any pre-action protocol letter first being sent.

[72]The Particulars of Claim recited the sequence of events relating to the original accident (as Mr Walker perceived them to be). They recited the course of the proceedings against Hathers. They made allegations based both on what was said and on what was not said in the statements of Mr Hather, Mr Derbyshire and Mr Haynes. It was averred (in paragraph 14) that, "notwithstanding whatever a judge might make of the Claimant as a witness, there was no realistic prospect of the Claimant failing to establish primary liability on the part of Hathers through the negligence of Haynes…" After setting out various matters, this is then pleaded at paragraph 28 of the Particulars of Claim. "28 The advice of the first and the second Defendants was negligent. PARTICULARS OF NEGLIGENCE28.1 Advising the Claimant that there was a serious risk that he might fail to establish primary liability on Hather when there was no such risk;

28.2 In the alternative, if there was a risk that the Claimant might fail to establish primary liability on Hather, failing to advise the Claimant that such risk was so slight as not to warrant a discount on value of the claim of more than about 5% and to calculate an appropriate figure for settlement from that basis;

28.3 Advising the Claimant that he should accept the money already in court since September 1995 (£40,000 plus benefits repaid to the CRU – a total of some £80,288) rather than run the risk of failing to establish liability;

28.4 Advising the Claimant to accept in settlement of a sum of money (£95,000) representing a discount of approximately 68% of the claim as conservatively valued by the first Defendant in March 1996." Damages are then claimed.

[73]Pausing there, there seems to be an ambiguity in paragraph 28.1. The phrase "no such risk" would seem to refer back to the words "serious risk" – that is, it was being pleaded that there was no serious risk of failure to establish primary liability. But paragraph 28.2 (in postulating an alternative risk of 5%) would seem to connote that paragraph 28.1 is meant to plead that there was no risk at all. Speaking for myself, I would think that a risk factor of 5% is, in lawyer's terms, little different from advising there was no risk: it simply factors in what may be called bare litigation risk (e.g. judicial capriciousness, unforeseeable absence of a crucial witness on the day and so on). In the event Miss Rodway in effect, in her arguments, conflated the two paragraphs, asserting that the Defendants were negligent in advising settlement on the footing that there was a serious, or real, risk that he might fail to establish primary liability.

[74]In response the Defendants each plead that the advice given was correct; that there was a serious risk of failure on primary liability; and at all events that the advice was not negligent. Before me, Irwin Mitchell disclaimed any independent defence of reasonable reliance on counsel.

[75]This claim proceeded rather slowly. At one stage the Defendants entered judgment in default. This was set aside, on the Claimant's application, by Jack J on 15 July 2005. After hearing counsel, he directed a trial of a preliminary issue in this form: "Whether the Defendants or either of them were in breach of duty as alleged in paragraph 28 of the Particulars of Claim (including as to what advice they gave) and whether £95,000 was a sum which could have been recommended for settlement consistent with their duties".

[76]Miss Rodway had not been involved at that stage. When she saw the terms of this issue, she was concerned – and in my view understandably so – at its possible lack of clarity and as to the potentiality for it to bring in evidence of quantum which the trial of a preliminary issue was meant to avoid. In consequence, the matter was referred back to Jack J and, after a hearing, a supplemental order was made on the 22nd November 2005. The issue to be determined was now put in this way:

"The issue to be determined upon the trial of a preliminary issue on 12 December 2005 to be as follows: Whether the Defendants or either of them was in breach of duty as alleged in paragraphs 28.1 and 28.2 of the Particulars of Claim (including as to what advice they gave). If the Claimant establishes that the Defendants or either of them was in breach of duty as alleged, the Court shall assess the percentage prospects of the Claimant succeeding in establishing primary liability in the original action, to include the assessment of the deduction (if any) for contributory negligence)."

It is also important to note that the Order recites that the parties were agreed that the trial of the preliminary issue should be decisive as to the issue of breach of duty; and that the Defendants agreed that if they or either of them were found to be in breach of duty then damages would fall to be assessed in the way specified in the recital to the Order.

[77]It was that preliminary issue that came for trial before me.

[78]In addition to receiving a substantial quantity of documentary evidence, I also received the evidence (in witness statements and orally) from Mr Walker; Mr Chruszcz; Mr Ireland; and Mr Thomson.

[79]I would record my impression of the witnesses as follows. 79.1. If the Defendants were expecting (or hoping) that Mr Walker would give evidence in the way exemplified by their perception of him in 1996, they were disappointed. Mr Walker, although plainly retaining a strong sense of grievance at what he considers to have been a great injustice, gave evidence for the most part in a courteous and forthright way. All the same, I did not find his evidence altogether reliable. On occasion, he simply failed to give any, or any direct, answer to awkward questions. On other occasions he not infrequently sought to explain away inconsistencies in his various statements in the original action by reference to the effect of opiate analgesics, to his psychological state and to personal difficulties in his life. Even making all due allowance for that, given that he was taking a keen and informed interest in the case from the outset I found such an explanation implausible. Yet further, he was prone to dismiss entries in the attendance notes which were inconvenient to his present case as being simply inaccurate or (for example, in the reference to "60 seconds" in paragraph 25 of his witness statement of June 1994, each page of which he signed) as "clerical errors". I find these assertions also implausible. I therefore treat his evidence, to the extent that it is not independently supported, with reserve. 79.2. Mr Chruszcz struck me as being an honest and fair-minded witness. He was very properly at pains to stress that he had little direct recall and that he frequently was having to reconstruct from the attendance notes or from what his likely practice would have been. At times, he was prone to give rather lengthy set speech answers to direct questions: but I suspect that in part was due to his trade as a barrister and, even more so, reflected his genuine indignation at some of the points that were being put to him in cross-examination. 79.3. Each of Mr Ireland's and Mr Thomson's evidence was consistent with the detailed attendance notes and letters. Each struck me as a thoroughly reliable and careful witness: reflecting, I would think, their ordinary attributes as solicitors.

[80]In assessing the evidence, I add, I bear in mind the lapse of time that has occurred.

The legal approach

[81]It was common ground before me that the standard to be expected of Mr Chruszcz was that of a reasonably competent Queen's Counsel specialising in personal injury matters. The standard to be expected of Irwin Mitchell was that of a reasonably competent firm of solicitors specialising in personal injury matters. There is no doubt that, in the context of giving advice as to compromise, questions of judgment can arise. But even where that is so that does not displace the need for reasonable skill and care to be applied. Moreover, it is to be borne in mind in the present case that although the settlement was at the door of the court (with the usual attendant pressures) this was scarcely a "heat of the moment" decision on the part of leading counsel or solicitors concerned.

[82]An illustration of a case where solicitors and counsel were found to be negligent in advising as to a settlement of litigation can be found in Griffin v Kingsmill

[2001] EWCA Civ 934

. In that case, the solicitors and counsel concerned genuinely believed that the settlement was in the best interests of the client. But that did not suffice: and breach of duty was proved on the basis of a wrongful assessment that the action had negligible prospects of success: when in fact (as it was found) the case was far from negligible. That case also shows that if such advice is founded on a belief that the evidence of a particular witness will be rejected, then reasons for such a belief must exist and be given. It may also, however, be noted that Kay LJ (who concurred in the result) said this at paragraph 108:

"Litigants do require clear advice. There is little point in obtaining the opinion of counsel if counsel is not prepared to give the client the benefit of his experience and expertise. Nothing in the conclusions I have reached in this cases would discourage the giving of such robust advice provided it was given with proper care. Indeed an indecisive opinion in circumstances which would lead a reasonably competent practitioner to give clear and positive advice might in itself be viewed as negligent."

[83]The issue of advice on settlement has recently been considered by the House of Lords in Moy v Pettman Smith & Co

[2005] 1WLR 583

;

[2005] UKHL 7

, in which the decision of the Court of Appeal that counsel had been negligent in advising as to settlement was reversed. In the course of giving his opinion, Lord Hope of Craighead remarked (paragraph 21):

"It is difficult to see the advice can be said to have been negligently wrong if the assessment on which it was based was not negligent. Moreover it is the substance of the advice, not the precise wording used to convey it, that needs to be examined in order to judge whether it was negligent."

In the course of giving his opinion, Lord Carswell quoted with approval a passage from the Canadian case of Karpenko v Paroian, Courey, Cohen and Houston (1981) 117 DLR (3d) 383 at p397-398:

"What is relevant and material to the public interest is that an industrious and competent practitioner should not be unduly inhibited in making a decision to settle a case by the apprehension that some Judge, viewing the matter subsequently, with all the acuity of vision given by hindsight, and from the calm security of the Bench, may tell him that he should have done otherwise. To the decision to settle a lawyer brings all his talents and experience both recollected and existing somewhere below the level of the conscious mind, all his knowledge of the law and its processes. Not least he brings to it his hard-earned knowledge that the trial of a lawsuit is costly, time-consuming and taxing for everyone involved and attended by a host of contingencies, foreseen and unforeseen. Upon all of this he must decide whether he should take what is available by way of settlement, or press on. I can think of few areas where the difficult question of what constitutes negligence, which gives rise to liability, and what constitutes at worst an error in judgment, which does not, is harder to answer. In my view it would be only in the case of some egregious error … that negligence would be found"

In my view, these remarks (albeit the actual decision in Moy was on its own facts) are directly in point in the present case. I add, however, that the comments in the last sentence cannot be taken to connote that some different or higher standard is applicable in such a context: in my view, they are simply to be taken as an acknowledgment of the need to make appropriate allowance for the position as it may present itself in advising on settlement and the range of responses that may reasonably be adopted. Disposition

[84]Before recording my findings, I would draw attention to two initial points. 84.1. First, it is at the heart of Miss Rodway's case that reasonably competent specialist leading counsel and specialist firm of solicitors should have advised that there was no, or no serious, risk of Mr Walker losing on primary liability: and that was so even if the assessment was that Mr Walker would make a very bad witness. That submission would thus connote that not only were Mr Chruszcz and Irwin Mitchell negligent; but also that Mr Makey, Mr Witcomb and previous solicitors acting (and, for that matter, Mr Barker) had themselves also completely misassessed the position: as indeed, by implication, had District Judge Bellamy also. 84.2. Second, it is a corollary of Miss Rodway's submissions that correct advice to Mr Walker would have been to the effect that he was in effect bound, or virtually bound, to succeed on primary liability. That gives cause to reflect, as Mr Stuart-Smith and Mr Elkington suggested, on what Mr Walker's reaction and complaints would have been had the case been fought (and I can and do take it that his case would have been properly conducted at trial if it had been fought) and lost before Judge Coles. Of course, Miss Rodway asserts that simply would not have happened. But her stance causes one to bear in mind the words of Judge LJ in Kelley v Corston

[1998] QB 686

at p 700 C-F:

"Settlements of litigation are to be encouraged, and as early as possible. Many settlements are advised before litigation is started, and many more cases are settled long before the date of the substantive hearing. Some cases settle a day or two before the hearing, some at the door of the court, and some indeed after the substantive hearing has begun. Yet others settle on appeal. The advice on which settlements are based will reflect many different considerations. For example in one case the advice to settle may arise from the non-availability of a witness in circumstances where the costs of an adjournment would be disproportionate to the value of a claim. In another the settlement of a claim for personal injuries may be woefully inadequate simply because inexperienced counsel has grossly underestimated the value of the claim. In another case, for reasons of his own the client may insist that the case should be settled on the best available terms because there are no circumstances in which he wishes the case to be heard in court. The circumstances are infinite. One specific feature relating to all settlements needs attention. Every lawyer in practice and every judge knows that there is no such thing as the case which is bound to succeed. Experience shows that cases with the brightest prospects of success somehow fail and it is difficult to underestimate the value of the certainty provided by a settlement as opposed to the continuing risks of litigation through to judgment. This factor alone should militate against successful proceedings based on criticism of advice leading to a settlement."

[85]These considerations do not of course dispose of this case. But I think they justify an initial wariness: and at the least they certainly serve as a useful reminder as to where the burden of proof lies.

[86]Certain other points can also, I think, be disposed of at the outset of my conclusions.

[87]First, Mr Walker asserts that he was pressurised or bullied into settling; and Miss Rodway maintained, both in cross-examination and in her closing submissions, that Mr Walker had "no real choice" but to settle. That accords neither with the attendance notes nor with the evidence of Mr Chruszcz and Mr Ireland; and I reject it. Mr Walker did have a choice. He debated the position with Mr Chruszcz in the presence of the others. He then debated it with Mr Ireland and Ms Evison. He had time to reflect. True it was that all were firmly advising him to settle. But the decision was left to him. Further, as Mr Ireland said in cross-examination and as I accept, there was no question of Irwin Mitchell ceasing to act had Mr Walker declined to settle. Had he so declined, the case would have been fought on that day: and, I have no doubt, competently and thoroughly fought. Of course one does not underestimate the pressures on a litigant – particularly one in Mr Walker's position - on the morning of trial. But even so, and in a very real sense, the choice was his. Given the vigour with which this point was pursued I think it only right to record my findings on it: but, as I see it, it is not a central issue, if only because Mr Stuart-Smith and Mr Elkington accepted throughout that Mr Walker acted in reliance on the advice he was being given in deciding to settle.

[88]The second point is that at one stage in her cross-examination of Mr Chruszcz Miss Rodway seemed to be exploring the possibility that he was not properly prepared for the trial (the innuendo being that that in part at least prompted the advice to settle). I wholly reject that. The evidence showed plainly that Mr Chruszcz had been briefed amply in time before trial, had considered the papers and was fully prepared for a contested hearing.

[89]The third point is that in opening her case Miss Rodway complained that the advice that there was a serious risk of failure was only given at the "twelfth hour", as she put it. That does not properly reflect the position. Mr Walker had been advised over many months that there was a serious risk of failure if he did not come across as a reliable witness: both by Mr Ireland (on a number of occasions) and also by Mr Chruszcz (in the consultation in March 1996). Indeed he had previously been so warned by Mr Makey, if not Mr Witcomb also. What, however, can be said is that it was only on the morning of the trial that he was first advised to accept the money on offer (in the context of being very firmly advised that he would not impress as a witness and that his evidence may be rejected). It is true that, at the consultation in March, Mr Chruszcz is recorded in the attendance note as having advised that there was a "small risk" that liability would not be established: whereas on the day of trial the advice was to the effect that there was at the least a serious risk that liability would not be established. But I accept Mr Chruszcz's evidence that there was no inconsistency here. That particular advice at the consultation was predicated on the basis that Mr Walker behaved himself (as it were) in the witness box and came across as an essentially reliable witness: as, indeed, is borne out by other passages in the attendance note of the consultation. But Mr Walker's behaviour outside court was such as to remove that as a prospect, in his (and Mr Ireland's) view. Indeed, Mr Chruszcz's evidence that Mr Walker's behaviour that day was even worse than it had been in March was unchallenged.

[90]Much also was sought on behalf of Mr Walker to be made before me about the evidence that could be gathered from JCB about the speed at which the bucket might drop; about the fuel pipe and whether there was a bend or filter which might restrict the flow (thereby, so it was said, requiring someone to hold the hose); and whether it was the practice for persons refuelling a JCB to stand on the chassis (as well as on the step): see the comments in the letters from JCB dated 26th August 1996 and 9th December 1996. But these matters had not been reduced to a formal evidential basis from JCB; and there is no allegation of negligence against the Defendants in respect of their preparation of these issues for trial. Moreover, the speed at which the bucket dropped could readily be adduced from the witnesses (Mr Walker himself, Mr Haynes and Mr Derbyshire – the more so given Haynes' acceptance that the bucket was only some 2 feet off the ground). As to the fuel filter, the JCB material (including plan) was on its face inconclusive – it referred at all events to "unrestricted" flow. As to the statement from JCB that "the comment however was that in 90% of cases the operative stood on the mainframe and steps in order to fill the tank", that – even assuming that the Judge allowed that letter to be adduced as evidence at trial – is by no means clear, and certainly does not say in terms that it was usual to place a foot under the hydraulic ram for the purpose of refuelling when the bucket was still raised or the engine running. In my view, these points are a reflection of Mr Walker's hopes at the time that such material would help his case: and the emphasis on them at this trial before me is a criticism born of hindsight and is a reflection of his brooding over events. Moreover, I am satisfied on the evidence (accepting what Mr Chruszcz and Mr Ireland told me) that they did consider the latest material from JCB and they were entitled not to attach the importance to this material that Miss Rodway would now seek to do. It might assist; but it had its ambiguities; and also, for example, there was, as Mr Ireland observed, the prospect that a drop time of approximately one second would potentially be two edged for Mr Walker's case: given that his case was that he had been on the JCB for more than 30 seconds whereas the defence were saying that he got on the machine just as the arm was being lowered.

[91]Miss Rodway's central submissions were, in essentials, based on the following propositions: 91.1. A clear distinction had to be drawn between primary liability and contributory negligence. 91.2. While a dispute could be anticipated on contributory negligence, nevertheless on an analysis of the evidence (and in particular Mr Derbyshire's and Mr Haynes' witness statements and including also the objective evidence) there was no, or no real, prospect of Mr Walker failing on the issue of primary liability. 91.3. The advice to settle was based on a view (by reason of the assessment of Mr Walker's likely performance as a witness) that there was a real risk of failure on primary liability, which was flawed and unreasonable.

[90]In my judgment, this argument breaks down at a number of stages, having regard to the evidence.

[91]The words "analysis" and "logical" made their entrances and their exits at frequent stages in Miss Rodway's addresses to me. I make no quarrel with that (although I rather got the impression that the style of approach put by Miss Rodway in cross-examination was quite a long way away from Mr Chruszcz's own personal style). But, skilfully though the points were made, it seems to me that – standing back from the position – they operate to create an air of unreality about the actual position as it could properly be assessed to be at the morning of the trial.

[92]Miss Rodway thus latched on to the averment in paragraph 3 of Hathers' Defence. The burden of proof for that rested on the defence, she observed: and where, she asked rhetorically, was the evidence from either Mr Derbyshire or Mr Haynes that they saw Mr Walker jump on to the JCB whilst it was being manoeuvred and whilst the bucket was being lowered? Mr Derbyshire's witness statement was to the effect that he did not see Mr Walker jump – rather his back was turned, and the first he knew of things was when he heard Mr Walker screaming. Mr Haynes in his statement said that he had "since learned" that Mr Walker jumped on to the side of the JCB while it was moving: but he did not explain how he had "learned" that, and he also said that at the time of the accident he was looking forwards. Thus, said Miss Rodway, the question of Mr Walker's credibility was not of importance on this.

[93]I regard this approach, with all respect, as quite unreal. Mr Haynes' (and Mr Derbyshire's) evidence was that they were not expecting Mr Walker to get onto the machine, let alone while it was being driven with the bucket up and/or when the engine was running. The clear inference from their evidence was that Mr Walker unexpectedly and without warning, and contrary (as they would say) to usual practice, jumped onto the machine whilst Mr Haynes was about to lower the bucket. One can readily see just how the Defence would be likely to rely on Mr Derbyshire's and Mr Haynes' prospective evidence - that they did not know Mr Walker was about to get onto the JCB and did not see him getting onto the JCB - as positively supporting the pleaded Defence case. That was the way Mr Chruszcz and Mr Ireland – indeed Mr Walker himself- understood their evidence (as had Mr Thomson and Mr Makey, among others, before them). In my judgment, they were plainly justified in doing so. On that basis, the reliability of Mr Walker's evidence was of prime importance. Indeed, Mr Chruszcz had a further concern, as he told me and I accept, that Mr Walker would present at trial as the kind of hot-headed and arrogant man who might indeed jump onto a JCB with its engine running without warning – a tenable and relevant view.

[94]Miss Rodway did not contend that Mr Chruszcz and Irwin Mitchell were not entitled to form the view at the day of trial that Mr Walker would present as a very bad and unreliable witness to the trial Judge. Miss Rodway, however, placed reliance on what she called the objective evidence. In particular, Mr Walker's left foot, she said, was sufficiently firmly planted on the chassis to be crushed at a place below the level of the toe-caps of his feet. Further, the descending time of the bucket from a height of no more than around 2 feet would have taken, she reiterated, no more than around 1 second (although that would, I add, depend to some extent on the lowering speed adopted by Mr Haynes). It would not have been possible, she submitted, for Mr Walker to do all that – especially if he also was, as he said, starting to put fuel into the pipe - "whilst the bucket was being lowered" (as paragraph 3 of the Defence pleaded). This supported Mr Walker's evidence, she said, and showed that the defence on primary liability was not maintainable.

[95]I regard this as unreal, too. This was not a res ipsa loquitur case. The precise sequence and timing was critical here. Mr Haynes not only had to lower the bucket, he also had to prepare himself to lower the bucket which, as Mr Walker agreed in cross-examination, would have involved him looking down at the levers set at floor level of the cab (on the right side) with a view to operating the bucket lever. That would be relevant to and within the ambit of the pleading in paragraph 3 of the Defence (which, I add, is in any event not to be construed as though it were a statute). Again, it must not be forgotten that Mr Walker's own pleaded case and witness statements were to the effect that he had been on the JCB for over 30 seconds. That is completely inconsistent with Mr Derbyshire's and Mr Haynes' statements. Of course, if the trial judge accepted that evidence of Mr Walker then Mr Walker was virtually bound to win on liability. But the Defence would say that that evidence must be false, if only because Mr Haynes would have been bound to see Mr Walker if he really had been on the JCB so long and would never then have lowered the bucket. Once it is accepted – as in my view it must be – that the Judge realistically might reject Mr Walker's evidence that it was 30 seconds or more, then the question the Judge would still have to decide would be for how long was Mr Walker on the JCB, before his foot was crushed. Miss Rodway coolly asserted that a finding by the trial Judge that Mr Walker's own estimate of 30 seconds was too long was "of no importance in relation to primary liability". This is unacceptable. That was the pleaded case; that was what was said in Mr Walker's witness statement. If that timing advanced by Mr Walker was rejected (and it might be rejected in circumstances where the Judge thought Mr Walker not just mistaken but lying) the claim was potentially in some trouble. Of course, the judge might still find that Mr Walker nevertheless was on the JCB sufficiently long for Mr Haynes, had he been paying proper attention, to see him: but that was still a live issue for the judge, depending on whose version of events he accepted. A study of Miss Rodway's closing written submissions (to the effect that on any view Mr Walker must have been on the JCB long enough for Mr Haynes – had he only been paying due care and attention – to see him before lowering the bucket) shows that what is being put forward by her as incontrovertible fact is in truth assertion. It might be so – but it would depend on the trial Judge's findings as to the primary facts on the conflicting evidence.

[96]Of course, Mr Walker's legal team would themselves have had an amount of material on which to cross-examine the Defence witnesses. They were, for example, in a position to put to Mr Haynes extracts from the JCB manual warning as to the danger of lowering attachments without making sure the machine and area were clear of other people. They could have questioned Mr Hather about training (or lack of training). They could have explored the practice of refuelling at the yard – if not at other sites – with the bucket raised and the convenience, if not need, of two operatives being involved. They could have explored in detail the time needed to place a left foot firmly on the ledge. They also had a number of other points, including those raised in the JCB documentation, which might have resulted in fruitful cross-examination. They may well have succeeded at trial. But to describe Hathers' case on primary liability as "indefensible" (as Miss Rodway did) is not, in my view, a tenable proposition.

[97]Nor is it tenable, in my view (reflecting what I have already said), to maintain, as Miss Rodway did, that on primary liability "this was not a claim that was going to turn on a conflict of evidence". (Indeed, it can perhaps be commented that Miss Rodway's simultaneous insistence on the prospective importance of the JCB material as evidence corroborative of Mr Walker's case – if and to the extent such material could be gainfully deployed at trial – does not seem to fit very well with this position). In this regard, it is worth noting that in cross-examination before me Mr Walker himself frankly said that no experienced operative would place his foot under a hydraulic ram for the hell of it, as he put it, and that that would be obviously dangerous; and that if (although, of course, he denied that he himself did it) an experienced operative stepped without warning onto a JCB with its engine running and the JCB moving and put his foot under the hydraulic ram while it was about to be lowered that would be extremely foolish and "he would only have himself to blame". Miss Rodway's repeated assertion was that there would still have been long enough – if only as evidenced by the firm positioning of Mr Walker's foot – for Mr Haynes, had he been paying due attention, to avoid lowering the bucket. But that, as it seems to me, was a matter of fact to be decided by the trial Judge in the light of all the evidence. How long, for example, it would take Mr Walker to place his foot firmly on the chassis would inevitably involve oral examination of him: as would the issues concerning whether or not he had inserted the fuel pipe and so on.

[98]Miss Rodway's arguments came close to saying that, on the question of primary liability (as opposed to contributory negligence), Mr Walker must have won even had Mr Haynes and Mr Derbyshire not been cross-examined. That would be demonstrably wrong. It clearly was going to be necessary for counsel to cross-examine Mr Haynes and Mr Derbyshire hard on all these points (as no doubt Mr Walker himself would have been) to establish the case on primary liability: indeed Mr Walker's own instructions were that those two had put their heads together to lie. Cross-examination could never sensibly have been limited to the issue of contributory negligence only.

[99]In my view, there clearly was an issue as to whether or not Mr Walker, who was - and in the eyes of Mr Haynes and Mr Derbyshire was - an experienced plant operative, without any prior indication chose to jump onto the JCB, with its engine still running, when Mr Haynes was manoeuvering the JCB and was lowering or preparing to lower the bucket to enable refuelling to start. That was a matter of fact, sufficiently raised on the pleadings and on the competing witness statements, and which required resolution by the trial judge in the light of the starkly competing evidence as to events and as to timings. Moreover, quite apart from the differing versions of events and timings propounded by Mr Walker on the one hand and Mr Derbyshire and Mr Haynes on the other hand, counsel for Hathers himself had a good deal of material on which to cross-examine by way of inconsistencies in Mr Walker's own evidence; for example, the initial statement including a claim that Mr Haynes "saw" him changing, in the later witness statement, to a case that Mr Haynes "would have been able to see him"; the change in evidence about the fuel pipe, which eventually matured in the statements of Mr Walker from "just as I had got myself into a steady position" to "began to undo the filler cap" to (eventually) feeling the fuel "surge through the pipe"; the discrepancy in the times recorded in Mr Barker's first report as given to Mr Barker by Mr Walker; and so on. In addition, Mr Chruszcz and Irwin Mitchell would have been entitled to bear in mind, in assessing whether Mr Walker would come across as a reliable, credible and consistent witness, other changes in the version being given by Mr Walker, albeit unknown to the Defence (for example, the initial statement recorded in Mr Zaman's first report).

[100]In the course of his oral evidence before me, Mr Walker – in part, I think, fortifying himself by what he considered the JCB materials to show - identified what he considered to have been three crucial points for his claim against Hathers. First, that there was nowhere else for him to stand save to put his foot on the chassis (under the arm); second, that the filler hose was too short; third, the existence of the U bend in the filler pipe. But on each of those points – which went not only to contributory negligence but also to primary liability – he was open to cross-examination. On the first, it could be asked, for example, why he chose to get onto the JCB while the engine was running and the bucket raised when he could and should (it would have been said) have done it when the engine was off, the bucket was on the ground and/or when he could have stood on the ground - which points also would go to Mr Derbyshire's and Mr Haynes' own expectations. On the second point, Mr Walker's evidence was wholly inconsistent with that of Mr Derbyshire (who seemingly had been engaged in many refuelling operations for Hathers). On the third point, this too was prospectively inconsistent with Mr Derbyshire's evidence and had only opaque support from the JCB material. In addition, as Mr Elkington pointed out, Mr Walker would potentially have faced searching cross examination as to how he could have used his left hand (his right hand holding on to the rail) to hold a hose which was allegedly too short while also – allegedly – unscrewing the fuel cap and inserting the hose with the same hand. This was potentially important: for if Mr Walker had (as he was saying) not only got onto the JCB but also unscrewed the filler cap, inserted the hose and felt the fuel surging through that would have lent very strong support indeed to his overall case that he had been on the JCB sufficiently long to be seen by Mr Haynes. But it was in issue whether he indeed had the hose in his hand while on the JCB. Further, even if he did, it was in issue as to whether he had got so far as unscrewing the fuel cap and inserting the hose – and aspects of his own initial witness statements might suggest he had not. Adverse findings on these points would make his case significantly less strong. This was precisely the kind of point Mr Makey, for example, had noted in 1992. It cannot realistically be said that an adverse decision on these points would have had no material bearing on the prospects of success (on primary liability) for Mr Walker.

[101]It seems to me therefore, looking at matters in the round, that the view taken by Mr Chruszcz and Irwin Mitchell (as, indeed, others before them) that the reliability of Mr Walkers' evidence and his performance in the witness box were central to success on primary liability was a justified and reasonable one. I also reject the submission that in some way they wrongly conflated the issues of primary liability and contributory negligence: it is clear, on the evidence, that they did no such thing.

[102]I accept that the advice to settle was given firmly. I can see no ground for criticism in that. I also consider that the basis for the advice – viz that Mr Walker's evidence may well be rejected and thus there was a serious risk that he would lose the case – was sufficiently identified. I can agree that aspects of the attendance note – for example, that even if Mr Walker were a "star witness" still he might fail altogether - are, if taken on their own, rather more difficult to understand. But that particular piece of advice was, as Mr Chruszcz explained, "underpinning" advice, to cover the possibility that Mr Walker might come across well but still Mr Haynes and Mr Derbyshire might be preferred. It was not the core reason for advising Mr Walker to settle. Taken overall, the thrust of the advice, and the reasoning behind it, was in my judgment sufficiently put forward at the time. Mr Walker, at one stage in his evidence, in fact maintained that he was being advised that his case was "hopeless". That accords neither with the attendance notes nor with the evidence of Mr Chruszcz or Mr Ireland; and I reject it. I think that Mr Chruszcz's perception – as reflected in passages in his witness statement – was that, given Mr Walker's conduct at the day of trial and Mr Chruszcz's own estimation of him as a witness at trial, Mr Walker probably would lose at trial on primary liability. In paragraph 16 of his witness statement, Mr Chruszcz said "I believed that there was a serious risk that he would go home without a penny … I told him in those circumstances he would not succeed in the claim"; and a little later on (in paragraph 22):

"I believe that if he had gone into the witness box all would have been lost. I never made any attempt to quantify the settlement in terms of it being appropriate damages in the case. I advised acceptance to ensure that Mr Walker obtained some compensation for his injuries …"

In my judgment, given the circumstances, that was an assessment of the prospects within the range properly open to Mr Chruszcz to hold: his (relative) pessimism and caution was not unjustified. As for Mr Ireland, his perception was more to the effect that, given Mr Walker's likely performance as a witness, there was a serious risk that Mr Walker might lose on primary liability. Overall, I find that each of them advised Mr Walker to settle not on the basis that his case was hopeless but on the basis that there was a serious risk that he would lose on liability.

[103]Given the case pleaded in paragraphs28.1 and

28.2 of the Particulars of Claim (by reference to which the preliminary issue is formulated), it is neither necessary nor appropriate for me to engage for myself in a percentage estimation of the prospects of losing on primary liability as they could reasonably be assessed to be at the date of trial; save to record my finding that it would be (and a fortiori could properly be assessed as being) a risk significantly exceeding the 5% referred to in paragraph 28.2 of the Particulars of Claim. The Defendants were in my view fully entitled in the circumstances to come to the view that the risk of failure on primary liability was not one which could be assessed as nil or negligible. In my judgment, there was indeed a risk of failure on primary liability; and the Defendants were entitled, in the circumstances, to assess it as a serious risk and to advise as to settlement accordingly.

[104]That being so, my decision is that the question raised in the first part of the preliminary issue is to be answered in the negative; and the second part thus does not fall for decision.

Conclusion

[105]I suspect that in many, if not most, cases where litigants settle proceedings they entertain, after the event, the thought "If only I had fought, I might have won". That is understandable. But such persons might also usefully bear in mind this thought (in practice, perhaps less frequently entertained by them): "If I had fought, I might have lost".

[106]In the present case, I consider, having regard to all the evidence, that the Claimant has failed to show – and, I am bound to say, has fallen quite a long way short of showing – that either of the Defendants was negligent and in breach of duty as alleged. I would pay tribute to the evident care that the legal team for the Claimant has accorded this claim and in particular to Miss Rodway's skilful and tenacious presentation of the case at trial. But fail this claim does; and there therefore will be judgment for each of the Defendants on the preliminary issue.