Joyce v Bradbury & Ors

Factual and Procedural Background

The Plaintiff was seriously injured on 29 September 2010 when knocked down crossing a road by a car driven by the first Defendant. Damages were agreed at £1,000,000, reduced by 15% for contributory negligence, resulting in an award of £850,000. The first Defendant was assigned 55% responsibility, with two other Defendants sharing the remaining 30%. The Third Defendant, Company A, was found liable for 20%, and the Sixth Defendant, Company B, for 10%. No appeal was made against these apportionments.

The sole issue before the Court of Appeal was Company A's appeal against the dismissal of its third party proceedings against Company B, which it sought to hold liable by way of indemnity or contribution for its share of liability.

The relevant facts concern demolition works at a site owned by a public housing authority, where hoarding 2.4 metres high was erected, blocking the pavement and forcing pedestrians to cross an uncontrolled crossing with reduced sightlines. Company B was engaged by Company A to produce a traffic management plan (TMP) including signage for pedestrian diversion. The TMP did not reference the hoarding, as Company A did not inform Company B about it. The signs were placed in a location different from that on the TMP drawing and closer to the accident site, creating a hazardous situation.

The trial judge found Company A responsible for the hoarding and traffic management shortcomings, and Company B’s role limited due to lack of information provided by Company A. Company A appealed the dismissal of its claim against Company B.

Legal Issues Presented

1. Whether Company A was entitled to indemnity or contribution from Company B for Company A’s share of liability arising from the accident.
2. Whether Company B breached its contractual and statutory duties by failing to properly design and implement the traffic management plan and signage.
3. Whether the trial judge erred in law and fact in dismissing Company A’s third party claim against Company B.

Arguments of the Parties

Appellant's Arguments

• Company B should have known or made inquiries about the type of fencing/hoarding to be used on site.
• As an expert in traffic management, Company B could not have properly performed its role without knowledge of the hoarding.
• The trial judge erred in discounting the significance of the third party defence and its limited admission.
• An adverse inference should have been drawn against Company B for failing to call the key witness directly involved in preparing the TMP.
• Company B was negligent and breached its contractual and statutory duties by placing signs at a dangerous location.

Appellee's Arguments

• The trial judge's findings were well-founded and carefully reasoned.
• The TMP was limited in scope, prepared quickly, and Company B’s role was confined to producing a non-scale drawing and erecting signage.
• The trial judge correctly found that Company A failed to provide Company B with crucial information about the hoarding.
• The absence of the key witness was not sufficient to draw an adverse inference against Company B.
• The judgment should not be disturbed as it was based on hearing witnesses and weighing evidence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Wisniewski v Central Manchester Health Authority [1998] PIQR 324	Principles governing drawing of adverse inferences from failure to call witnesses.	The trial judge considered this authority when deciding not to draw an adverse inference against Company B for not calling the key witness; the Court of Appeal disagreed with that decision on the facts.

Court's Reasoning and Analysis

The Court of Appeal acknowledged the trial judge’s advantage in hearing witnesses and the detailed reasoning supporting the overall liability findings. However, the court disagreed with the trial judge’s conclusion that Company B could be excused for not making inquiries about the hoarding. Given the demolition context, Company B, or its representative Mr Brennan, should have asked Company A for details regarding the fencing, as solid hoarding was the likely form of fencing and would affect pedestrian safety and sightlines.

The Court found that Company B’s failure to call the key witness who prepared the TMP and quotation (Mr Brennan) was significant, and an adverse inference should be drawn against Company B. This witness’s evidence was crucial to explain the TMP’s preparation, the placement of signs, and whether inquiries were made about the fencing.

The Court also found that Company B’s defence had shifted during proceedings, initially admitting to a broader traffic management role but later limiting itself to signage placement, surprising even its own expert witness. This inconsistency undermined Company B’s position.

Considering these factors, the Court concluded that Company B failed in its duty to ensure pedestrian safety by allowing signs to be placed at a dangerous location, and therefore must bear liability for that failure.

Regarding the extent of liability, the Court held that Company B was not liable for full indemnity because there was a period between the hoarding’s erection and the accident during which Company A could have mitigated the danger but did not. The Court assessed that a fair outcome was a 50% contribution by Company B towards Company A’s liability.

Holding and Implications

The Court of Appeal allowed the appeal in part, overturning the dismissal of Company A’s third party claim against Company B.

Company B was held liable to contribute 50% of Company A’s share of the liability for the accident. This decision imposes a contributory obligation on subcontractors engaged in traffic management to make reasonable inquiries about site conditions that affect safety, and to ensure signage and management plans are appropriately designed and implemented.

No new precedent was established beyond the application of existing principles regarding duty of care, contractual obligations, and procedural fairness in witness evidence. The decision directly affects the parties by adjusting the allocation of financial responsibility for the accident.