Bertolli et al v. Toronto (City) et al, 2017 ONSC 7534
CITATION: Bertolli et al v. Toronto (City) et al, 2017 ONSC 7534
COURT FILE NO.: CV-15-535229
DATE: 20171215
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOHN P. BERTOLLI, NORMA K. BERTOLLI and KATHLEEN R. TOMLINSON
Plaintiffs
– and –
CITY OF TORONTO and JOHN DOE MAINTENANCE COMPANY
Defendants
Michael Kealy, for the Plaintiff
Miranda Serravalle, for the Defendant, Brennan Paving and Construction Ltd.
HEARD: October 26, 2017
LEDERER J.
Introduction
[1] This is an appeal of an order of the Master.
[2] He allowed that the defendant named in the Statement of Claim as the City of Toronto be amended to be identified as the Region of York and that the defendant named as John Doe Maintenance Company be identified as Brennan Paving and Construction Ltd. The order was made after the expiry of the applicable limitation period. The issues are the determination of the applicable standard of review and whether, that standard being applied, results in the order of the Master being confirmed or set aside.
Background
[3] The action is founded in an incident which took place on September 8, 2013. On that day a car being driven by plaintiff, John P. Bertolli, drove through a pothole located on McCowan Road, in the City of Markham and the Region of York. Consistent with the requirements of the Municipal Act a Notice was delivered to the City of Markham advising it of the accident, asserting it had been negligent in the upkeep of the road, was responsible for any damage suffered by the plaintiffs, asking that its property liability insurers be notified and raising the prospect that an action would be commence against it.[^1] The letter begins as follows:
Please be advised that I have been retained by the above noted individuals in connection with personal injuries sustained while driving on McCowan Road, North of Dennison Street, Markham, on September 8, 2013.
[4] The City of Markham immediately wrote to counsel for the plaintiffs advising that the location of the accident fell under the jurisdiction of the Region of York, within which the City of Markham is located. The City passed the letter it had received on to the Region. Counsel for the plaintiffs followed up and sent a letter to the Region containing the same advice as the letter it had sent to the City. In particular, it included the same introductory words as quoted above.
[5] There can be little doubt that the plaintiffs knew exactly where the accident had taken place, that is to say where the pothole was located.
[6] Brennan Paving and Construction Ltd. was the road maintenance contractor identified as being responsible for the upkeep of the road at the location of the accident. The Region of York passed on the letter it had received to Brennan Paving. At the time of the accident and for the 5 years prior, Brennan Paving was not and had not been responsible for the maintenance of the part of McCowan Road that is located in the City of Toronto.
[7] The Statement of Claim was issued on August 27, 2015. The Statement of Claim notes the location of the accident as “northbound on McCowan Road, in the City of Toronto” and nothing more. The greater precision in the letters written in the days following the accident is missing. Parts of McCowan Road are located in the Region of York (which includes the City of Markham) and other parts in the City of Toronto.
[8] The Statement of claim was served on the City of Toronto on or about September 1, 2105. It requested particulars “of the exact location of the alleged accident”. In response counsel for the plaintiffs advised that the “pothole was located in the northbound curb lane of McCowan Road, approximately 49 feet north of the white line/traffic lights at the intersection of McCowan Road and Dennison Street.”
[9] Thereafter counsel for the plaintiffs began the process of bringing a motion to substitute the Regional Municipality of York for the City of Toronto as a defendant in the action. A letter was written by counsel for the plaintiffs to counsel for the Region of York asking for “…the legal name of the maintenance company”. There is no evidence that such a letter was written to the City of Toronto at any time prior to the issuance of the Statement of Claim. One can only suppose that if such a letter had been written the problem that confronted the plaintiffs, and required the motion to the Master, would have been avoided. Brennan Paving having been identified, a Fresh as Amended Notice of Motion to amend the Statement of Claim to substitute the defendant the City of Toronto with the Regional Municipality of York and to substitute or add Brennan Paving was served. This is the motion that was heard by the Master on October 5, 2016.
[10] The Master granted the motion allowing both the Regional Municipality of York and Brennan Paving to be the defendants named in the action as it continued. The legal premise on which this determination was based is the principle of misnomer. Each of them was recognized by the Master as an intended and proper defendant.
Standard of Review
[11] The plaintiffs (the moving party) submitted that the Master incorrectly characterized the test for misnomer, that this was a pure legal error and, thus, the correct standard of review is “correctness.” The defendants say that the plaintiffs accepted the test for misnomer as the defendants had characterized it and the Master had applied it (which the plaintiffs specifically did not do[^2]) and on this basis submit that the issue is “primarily a finding of fact” demonstrating that standard of review is “palpable and overriding error”. I do not agree with either of the parties at least as to the basis on which to come to an understanding of the standard of review engaged by this case.
[12] The issue involves the application of a legal standard to a set of facts. It is a question of mixed fact and law.[^3] The standard of review falls on a spectrum. Where the facts are particular and the resolution of the case founded on the findings of facts, it is unlikely the decision will be relied on in any subsequent case. In such circumstances the standard of review tends to fall towards the end represented by “palpable and overriding error”. Where the decision may have general application the resolution it is more likely to be based in the law. In that situation it is probable that the case will have precedential value. The standard of review tends to other end of the spectrum: “correctness”.[^4]
[13] The standard of review in this case is different from that applied in Essar Algoma Steel Inc. v. Liebherr (Canada) Co. That case was also an appeal from a Master who had allowed for the replacement of one defendant with another as a result of misnomer. The difference is in the nature of what the Master did. In that case, certain findings of fact were made and the law applied as it stood. There was no broadening of the principle. In that case the standard of review was toward the palpable and overriding error end of the spectrum. That was the standard that applied.[^5]
[14] In this case, the decision of the Master, if it is left to stand, will broaden the application of misnomer beyond what has heretofore been its limits. To my mind this case has precedential value. It represents a change in the law, perhaps a significant change. Accordingly, the standard of review leans to the correctness end of the spectrum.
Misnomer
[15] Rule 5.04(2) of the Rules of Civil Procedure allows for changes as supported by the doctrine of misnomer. It states:
At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment
[16] The words “add” “delete” and “substitute” as found in the rule should be read each as modifying the authorization to “correct the name of a party incorrectly named” which is the codification of the right of the court to deal with a misnamed party. The ability to make such a change after the expiry of an applicable limitation period is confirmed by the Limitations Act, 2002, s. 21:
(1) If a limitation period in respect of a claim against a person has expired, the claim shall not be pursued by adding the person as a party to any existing proceeding.
(2) Subsection (1) does not prevent the correction of a misnaming or misdescription of a party.[^6]
[17] Once any applicable limitation period has expired the court is not free to substitute one party for another without reference to the doctrine of misnomer.
[18] An understanding of the doctrine of misnomer begins with Davies v. Elsby Brothers Ltd.[^7] In that case, the court refused to allow the replacement of a business, “Elsby Brothers” as a defendant with “Elsby Brothers Ltd.”, a corporation that had taken over the business. This was found to be the substitution of one party for the other and not misnomer.
[19] In that case the understanding of misnomer was described as follows:
The test must be: How would a reasonable person receiving the document take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself: "Of course it must mean me, but they have got my name wrong", then there is a case of mere misnomer. If, on the other hand, he would say: "I cannot tell from the document itself whether they mean me or not and I shall have to make inquiries". Then it seems to me that one is getting beyond the realm of misnomer. One of the factors which must operate on the mind of the recipient of a document, and which operates in this case, is whether there is or is not another entity to whom the description on the writ might refer.[^8]
[Emphasis added]
[20] In the time since, the application of the doctrine has broadened and been relaxed. This evolution is apparent in Ormerod v. Strathroy Middlesex General Hospital.[^9] A man died. His family sued an emergency room physician. He had never treated the deceased. The court allowed the claim to be amended to name the doctor who had. The court broadened the test. The judge observed that the “reasonable person receiving the document” is not restricted to the person to be named as a defendant: “Rather the cases have been expanded to include the ‘relevant person’ who reviews the document.”[^10]
[21] In Ormerod the court adopted the following quotation:
The case law amply supports the proposition that where there is a coincidence between the plaintiff’s intention to name a party and the intended party’s knowledge that it was the intended defendant, an amendment may be made despite the passage of the limitation period to correct the misdescription or misnomer. See Ladouceur v. Howarth, 1973 30 (SCC), [1973]S.C.J. 120 (S.C.C.); Kitcher v. Queensway General Hospital, 1997 1931 (ON CA), [1997] O.J. No. 3305 (C.A.) and J.R. Sheet Metal & Manufacturing Ltd. V. Prairie Rose Wood Products, 1986 ABCA 4, [1986] A.J. No. 7 (C.A.).[^11]
[22] This broadening of the understanding of what is required to demonstrate misnomer has been accompanied by the recognition of a residual discretion, in the court, to refuse an amendment that may otherwise qualify as a misnomer:
As I see it, as the scope of what the courts treat as a misnomer broadens, it is appropriate to take a wider view of the court's discretion to refuse the correction of a misnomer. A "classic" misnomer, one in which the claim contains a minor spelling error of the defendant's name and is personally served upon the intended but misnamed defendant, prompts the application of a standard historically developed to remedy mere irregularities. Now that the concept of "misnomer" has been broadened to apply to a wider range of situations, the standard used to permit its correction should take into account the extent of its departure from mere irregularity in all the circumstances of the case.[^12]
[23] This being so, as pointed out in Essar Algoma Steel Inc. v. Liebherr (Canada) Co. there are two questions to be answered:
(1) Whether the failure of the plaintiffs to correctly name the Region of York as a defendant is a misnomer, and
(2) Even if a misnomer occurred, should the Court exercise its discretion to refuse to permit the requested correction?
Analysis
[24] There is little doubt that the plaintiff intended to sue the municipality that was responsible for the upkeep of the roadway at the location where the accident occurred. That is where the pothole was located. Why this did not happen was not explained. Certainly the plaintiffs, through the response to the notice they had delivered to the City of Markham, had been told that this was the Region of York. They had notified the Region. The question that remains is whether the Region of York, acting reasonably, upon reading the Statement of Claim would have recognized that it was the intended defendant. This is referred to as the “litigating finger test:”
The test for determining whether an amendment is for misnomer or for the addition of a new defendant is whether the “litigating finger” is pointed at the proposed defendant in the Statement of Claim; that is, would a person having knowledge of the facts be aware of the true identity of a misnamed party by reading the Statement of Claim?[^13]
[25] The Master referred to and relied on Lloyd v. Clark. In that case following a motor vehicle accident the plaintiff sued both the Town of Whitby and the Town of Ajax. After service of the Statement of Claim “…the adjuster retained by the Durham Municipal Insurance pool to investigate the claim on behalf of both Ajax and Whitby, advised counsel for the plaintiffs that Lake Ridge Road was under the jurisdiction of Durham, not Whitby or Ajax”. A motion was brought to add the Region of Durham as a defendant. It was refused. The appeal was granted and the change made. The Court of Appeal found:
We agree with the submission that on a fair reading of the statement of claim, it was clear that the plaintiff intended to name the Municipality having jurisdiction over and responsibility for the maintenance of the road on which the accident occurred. Moreover, there was clear evidence that Durham immediately knew that it was the intended defendant given the letter sent by Durham’s insurance adjustor to the plaintiff’s solicitor upon receipt of the statement of claim.
[26] On its face this would seem to mirror the situation in the case I am asked to decide. It does not. There is a fundamental difference. There the Towns of Ajax and Whitby are both part of the Region of Durham. There was never any uncertainty about where the accident occurred. While the decision in Lloyd v. Clark does not describe what the Durham Insurance Pool is, it is telling that the adjuster is referred to as “Durham’s Adjuster.” He advised that Durham, not Ajax or Whitby had jurisdiction over the road in question. In the context he was a “relevant person” as referred to in Ormerod v. Strathroy Middlesex General Hospital (see: para [20] above). In this case the City of Toronto is geographically separate and distinct from the Region of York. From the documents, there was a very real question as to where this accident happened. The letter giving notice is precise. The Statement of Claim is clear only to the extent that it occurred on McCowan Road, in the City of Toronto. The presumption in the Master’s finding is that whoever, at the Region of York, received and read the Statement of Claim would have known about the letter giving notice and should have recognized from the reference to McCowan Road that this was the same incident it referred to. In this there is an assumption that the reasonable reader would have recognized that the error was in the Statement of Claim. It would be equally reasonable for the reader at the Region, having made the connection to the letter, to conclude that subsequent to the notice being provided it must have been learned that, in fact, the accident occurred in Toronto. To return again to Ormerod v. Strathroy Middlesex General Hospital the Master was prepared to assume whoever read the Statement of Claim at the Region was a “relevant person”.
[27] Unlike Lloyd v. Clark this case does not deal with a correction in the understanding of jurisdiction over a particular piece of road. Rather it is the substitution of one party unrelated to the specific location for the one where the accident took place. The significance of this difference can be seen as confirmed by the situation in Ormerod v. Strathroy Middlesex General Hospital. The two doctors worked in the same hospital, in the same emergency room. The plaintiff named the wrong one. The other, upon reading the Statement of Claim would have known that he was the treating physician. The situation (the reasonable expectation of the reader) would be different if the two doctors worked in different hospitals and the doctor reading the Statement of Claim worked in the one that was not referred to. The added difference creates uncertainty as to the intention of the plaintiff and whether the reader could reasonably be expected to understand that the litigating finger was pointing in his, her or (as in this case) its direction.
[28] It is this that demonstrates the widening on the doctrine present in the decision of the Master.
[29] I turn now to the application of misnomer to Brennan Paving. I repeat that the Region of York, upon its receipt, did send the notice letter on to Brennan Paving. For whatever reason the Region did not provide counsel for the plaintiffs with confirmation that this had happened. The plaintiffs remained uninformed as to the identity of the applicable contractor:
There is no credible evidence that the plaintiffs or their lawyers knew the true identity of John Doe Maintenance Company more than two years before the motion was brought.[^14]
[30] The Master continues on, in the same paragraph:
There is no evidence that there is some public record which the plaintiffs or their lawyers could have searched to learn the true identity of John Doe Maintenance Company.[^15]
[31] The Master goes on to review some evidence that suggested a telephone call to the counsel for the plaintiffs had been made and a message left identifying the contractor. From there he came to the following conclusion:
In my view this conflicting evidence is too vague for me to make a finding that the plaintiff’s law firm was made aware of the identity of Brennan Paving more than two years before this motion was brought.[^16]
[32] I confess I do not understand why the onus or responsibility for identifying an otherwise unrecognized defendant lies with the municipality. Surely, it was incumbent on the plaintiffs to do something to figure out who or what John Doe Maintenance Company actually was. What is clear is that the plaintiffs only figured this out after they provided the City of Toronto with the specific location and were reminded that the municipality which had jurisdiction for the roadway in question was not the City of Toronto but the Region of York. There is no suggestion that, believing the City of Toronto to be the correct defendant, the plaintiffs could not have requested the name of the applicable maintenance contractor in advance of issuing the Statement of Claim. In connection with this I note that the accident occurred on September 8, 2013, and the Statement of Claim was issued on the August 27, 2015, nearly two years later. There is no reason why, during that time, a request could not have been made to the City of Toronto or, if the person asking remembered the advice from the City of Markham that the Region of York was the responsible authority, to the Region asking who the responsible contractor was.
[33] I shall return to this idea later in these reasons. For the moment I note only that this is not the “…correction of a misnaming or misdescription of a party.”[^17] It is the failure to ascertain the identity of a party that is not known. In substance the Master found that the representative of Brennan Paving who read the Statement of Claim would have recognized that the litigation finger was pointing at it:
A person at Brennan Paving reading the statement of claim and aware of the fact that on September 20, 2013 York Region sent a notice letter from the plaintiffs’ solicitor to Brennan Paving via the Miller Group would know that the true identity of the John Doe Maintenance Company was Brennan Paving.[^18]
[34] The Master introduces this finding with the observation that the “situation at Brennan Paving is similar” to that of the Region. I agree but because I perceive the situation differently I am taken to a different conclusion. The person reading this Statement of Claim would see that the accident was on McCowan Road in the City of Toronto; a location to which it had no connection and no responsibility. As with the Region I do not accept that with that degree of separation an individual at Brennan Paving should be expected to have connected the Claim to the notice delivered years before. If the specific location had been identified in the Statement of Claim it might have been different. Then the separation would have been narrowed to a location for which Brennan Paving would have been responsible. If the location had been precisely described and the misnamed party been the City of Markham the situation would have been different. It would have been the same as in Lloyd v. Clark.
[35] The determination made by the Master rests with the presence of the letters giving notice. Without them there would be nothing on which the plaintiffs could rely as providing a foundation for any understanding in the Region or Brennan Paving that they were the true defendants. In other words the decision of the Master is based on the presumption that within any municipality or corporation it can be assumed that whoever came to read a Statement of Claim would be aware of a letter such as was written in this case, would remember it and associate it with the Statement of Claim being reviewed even though the location of the accident as described in the Statement of Claim was different than the one referred to in the letter. The test is “…would a person having knowledge of the facts be aware of the true identity of a misnamed party by reading the Statement of Claim” (see: para. [24] above). There is nothing in the cases reviewed that suggests that an assumption that the person would have that knowledge is enough to satisfy the test. They represent situations where the proper defendants recognized their involvement because it was immediate and direct. In Ormerod the doctor properly named as a defendant knew the litigation finger was pointing at him because he served the patient not because years before he got a notice saying he might be sued. In Lloyd v. Clark the adjuster who received the Statement of Claim knew the location was the responsibility of the Region of Durham from his experience in the area, as described in that document, not because he had been advised of an accident at a different location in a letter delivered years before.
[36] To my mind the pointing of the litigation finger that marks a misnomer has to be clear and definite not held together through a series of assumptions about what the person reading the Statement of Claim might know as a result of a letter written months if not years before.
[37] The determination of the Master is not the application of the facts he found to the law as established. Rather it changes the law. It would, if accepted, significantly change the relationship of the party to be named to the events leading up the issuance of the Statement of Claim. The relationship present here reflecting as it does on a Statement of Claim that points to an accident at a different location (the same street but in a different municipality) and relying on an assumption that the relationship would nonetheless be apparent to anyone who read the Statement of Claim because of a letter written nearly two years earlier is too tenuous to allow for the presence of a litigation finger pointing in the right direction. It would bring the doctrine close, (as I see it too close) to allowing for a pure substitution of one party for another in the presence of the expiry of the applicable limitation period.
[38] Applying the standard of correctness I find the Master was in error in extending the law in this way. On this basis I would grant the appeal
[39] Nonetheless I go on to consider with the second question: the exercise of the residual discretion left to deny misnomer where appropriate. The Master recognized the need to exercise this discretion:
Second, even if it is a misnomer, the Court holds a residual discretion to deny the proposed amendment.[^19]
[40] It is not entirely clear that the Master took account of this part of the test. There is nothing in his decision which identifies where in his analysis moves to this question. On the other hand the Master does refer to what he sees as the absence of prejudice.[^20] In dealing with costs the Master referred to his decision to allow the changes as an “indulgence”.[^21] In the presence of misnomer an order allowing for a party to be properly named is not an indulgence. It is an application of the law. In the circumstances I take the consideration of prejudice to be demonstrative of what the Master took into account in exercising the residual discretion and confirming that the change of defendants be allowed.
[41] There is no reason for me to go further. It would be unusual to set aside a matter such as this as a result of the exercise of discretion. To do so the decision would have to fall outside the available choices; I would have to find the decision was wrong:
We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere."[^22]
[42] In this case I do not have to go that far. I do wish to point out that in considering prejudice the Master looked only at questions of whether witnesses had died or disappeared and whether documents that could have assisted the defence had been lost or destroyed. There was no evidence of “actual prejudice”. To me this is a limited inquiry into prejudice. In this case more is involved. The impact of the applicable limitation period could be affected. I point out that if a party identified as John Doe can be replaced relying on the doctrine of misnomer and using a John Doe does not bring with it the obligation to search out the proper party the limitation period is extended by its use to the prejudice of that defendant who could be entirely unaware of the possibility of being sued. Both a corporation like Brennan Paving and a municipality such as the Region of York would have to be certain someone was aware of all possible claims against it, beyond the expiry of the applicable limitation period in case an action had been wrongly commenced somewhere else beyond its area of operation or outside its boundaries. To my mind, this is a further indication that the decision of the Master would serve to extend the doctrine of misnomer beyond what would be appropriate and correct.
[43] The appeal is granted.
[44] As agreed to by the parties, the appeal having succeeded, costs of the appeal to the appellant in the amount of $6,000. The request that the cost order of the Master requiring Brennan Paving to pay $7,500 to the respondents (the plaintiffs) is set aside as is the order that the plaintiff pay the region $7,500.
Lederer J.
Released: December 15, 2017
CITATION: Bertolli et al v. Toronto (City) et al, 2017 ONSC 7534
COURT FILE NO.: CV-15-535229
DATE: 20171215
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOHN P. BERTOLLI, NORMA K. BERTOLLI and KATHLEEN R. TOMLINSON
Plaintiffs
– and –
CITY OF TORONTO and JOHN DOE MAINTENANCE COMPANY
Defendants
REASONS FOR JUDGMENT
Lederer J.
Released: December 15, 2017
[^1]: Municipal Act, 2001, S.O. 2001, c 25 at s. 44 (10) as follows: Notice (10) No action shall be brought for the recovery of damages under subsection (2) unless, within 10 days after the occurrence of the injury, written notice of the claim and of the injury complained of, including the date, time and location of the occurrence, has been served upon or sent by registered mail to, (a) the clerk of the municipality; or (b) if the claim is against two or more municipalities jointly responsible for the repair of the highway or bridge, the clerk of each of the municipalities.
[^2]: Factum of the Appellant at para. 33; “Master Hawkins incorrectly characterized the test for misnomer.”
[^3]: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235, at para. 26 referring to Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, at para. 35.
[^4]: Ibid at paras. 26 to 37.
[^5]: 2011 ONSC 1688, [2011] O.J. No. 1311, 18 C.P.C. (7th) 117, 199 A.C.W.S. (3d) 1098, 280 O.A.C. 243 at para. 40.
[^6]: Limitations Act, 2002, SO 2002, c 24, Sch B, s. 21.
[^7]: [1960] 3 All E.R. 672, [1961] 1 W.L.R. 170 (C.A.).
[^8]: Ibid at p. 676 (All E.R.).
[^9]: 2009 ONCA 697 (Ont. C.A.).
[^10]: Ibid at para. 12.
[^11]: Ibid at para.21 quoting Lloyd v. Clark 2008 ONCA 343, [2008] OJ No 1682 (QL); 165 ACWS (3d) 812; 44 MPLR (4th) 159; 52 CPC (6th) 41at para. 4..
[^12]: Ibid at para. 31 quoted in Essar Algoma Steel Inc. v. Liebherr (Canada) Co (fn. 5) at para. 18.
[^13]: Spirito Estate v Trillium Health Centre [2007] O.J. 3832 at para. 3 appeal dismissed at 2008 ONCA 762, 302 DLR (4th) 654; [2008] OJ No 4524 (QL); 171 A.C.W.S. (3d) 189; 246 OAC 150; 69 C.P.C. (6th) 36.
[^14]: Reasons for Decision (of the Master) at para. 23
[^15]: Ibid at para. 23
[^16]: Ibid at para. 27
[^17]: Limitations Act, 2002, supra (fn. 6) at s. 21(2) quoted at para. [ ] above.
[^18]: Reasons for Decision (of the Master) at para. 22.
[^19]: Ibid at para. 18 referring to McCormick v. Tsai, 2011 ONSC 2057 at paras. 8 and 9, in turn referring to Spirito Estate v Trillium Health Centre, supra (fn. 13).
[^20]: Ibid at paras. 28, 29 and 30.
[^21]: Ibid at paras. 32 and 33.
[^22]: Silver v. Silver 1985 2075 (ON CA), [1985] O.J. No. 2735, 54 O.R. (2d) 591 at 591 quoting from Bellenden (formerly Satterthwaite) v. Satterthwaite, [1948] 1 All E.R. 343 at p. 345.