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Legal Watch: Personal Injury March 2014 Issue: 012


Highways The case of Curtis v Hertfordshire Council [Lawtel 21/03/2014] has already received widespread coverage in the media. The claimant, who was training for a cycling event, was cycling on

In This Issue:

a suburban, residential road when he suddenly swerved, lost

Highways

control of his bicycle and sustained fractures to his skull and

Costs

arm. He had no memory of the incident or why he had swerved. His friend, who was cycling behind him before the incident took place, inspected the road immediately after the accident and discovered a long, linear defect in the road. The defect was 40mm deep, adjacent to the centre of the carriageway

Jurisdiction Credit Hire Post Jackson/Mitchell Cases

and at the point at which the friend believed that the claimant had swerved. The friend gave evidence that he did not see the claimant’s bike judder, which he accepted would have occurred if the front wheel had gone into the defect. Evidence was adduced that the claimant and his friends, all competent cyclists, would cycle towards the centre of the carriageway where there were parked cars, though there was no evidence as to whether there were parked cars on the road at the time of the accident. An image of the road, taken at an unknown time, showed cars parked on the side of the road.

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The local authority’s road inspector, who had inspected the

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road six months previously, accepted that, had he seen the

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defect, it would have been recorded as a category one defect, which would require repair within seven days. He further stated

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that, as the defect was on the offside of his vehicle, it would

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not have been visible to him and, as a linear defect, would

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have been less obvious than a depression in the carriageway. A neuro-psychiatrist’s report stated that the accident had caused damage to the claimant’s ability to process information and to his verbal and visual memory. He had also suffered loss of hearing. The claimant gave evidence that on his return to work he had been unable to deal with high level tasks, was subsequently dismissed without reason and had to take

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a lower paid, and less demanding job. The parties were

It was not appropriate to say that the claimant bore any

agreed as to the quantum of damages, save as to any sum

responsibility. He was cycling at 18-20 miles per hour, which

recoverable for the claimant’s continued disadvantages in

was not excessive on a road with a speed limit of 30 miles

the labour market.

per hour.

‘The local authority’s road inspector… accepted that, had he seen the defect, it would have been recorded as a category one defect’ Finding in favour of the claimant, the deputy High Court judge held that the defect fell within category one. It should have been reported and repaired. The claimant was probably cycling towards the centre of the carriageway. Although there was no evidence as to whether there were parked cars on the road at the time of the accident, it was a relatively narrow road and it would have been prudent to cycle close to the centre of the road. On a balance of probabilities, the claimant had travelled over the centre-line. His front wheel had entered the defect or he had suddenly swerved in an attempt to avoid the defect. Particular reliance was placed on the friend’s evidence that the defect was at the exact point at which the claimant had swerved. The defect had caused the accident. The inspector’s failure to observe the defect was a breach of duty. The main damage to roads occurred during winter, so it was likely that the defect had been in a slightly worse condition at the time of the inspection six months before the accident. It was clear that the defect had been adjacent to the front nearside of the inspector’s vehicle. It should have been seen, logged as a category one defect and repaired. The statutory defence under S58 Highways Act 1980 was not made out.

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Although the claimant was able to perform his job adequately, he had been required to develop numerous coping strategies. The permanent nature of his injuries put him at a significant disadvantage, which made him vulnerable to periods of unemployment. That loss could be represented by an additional award of £20,000.


Costs Although it is a commercial case Xhosa Office Rentals Ltd

be left out of pocket to a considerable extent where an

v Multi High Tech PCB Ltd and others [Lawtel 25/03/2014]

identifiable person was so obviously the moving spirit

is of interest to defendants in personal injury claims faced

behind the litigation. There were cogent, compelling

with qualified one way costs shifting (QOCS). Two of the

and unanswerable reasons for making the order. The

exceptions to the QOCS principle are where the claimant or

respondent had been the claimant in all but name and had

a person acting on the claimant’s behalf are guilty of conduct

funded the claim after his had run out of money. The claim

likely to obstruct the just disposal of the proceedings; or

was pursued even after two judges had remarked upon its

where in a claim for both personal injury and non personal

weakness and the respondent was personally responsible

injury, the non personal injury claim is for the benefit of a

for the manner in which the litigation had been conducted.

third party and is unsuccessful. The test will be whether the non-party had acted in such a way that he should be deemed to be a ‘real party’ to the action. In this case, the applicants applied for an order adding the respondent additional party to the proceedings for costs purposes only. He had been the beneficial owner and main

‘The respondent had been the claimant in all but name…’

director of a company which had brought proceedings for breach of contract against the applicants. All evidence for the claim was provided by and derived from the respondent who also funded the proceedings when his company ran out of money at an early stage. Applications were made for freezing and security for costs orders and the judges who dealt with them stated that the respondent’s company’s case was weak and barely arguable. The company failed to comply with the security for costs order and proceedings were struck out. The applicants’ costs at that stage were around £308,000.

The only evidence his company had relied on came from the respondent who alone stood to benefit. His company’s claim against the applicants was weak. It ultimately failed not on its merits or because the respondent had changed course, but because security for costs could not be paid. By that stage considerable expense and stress had been incurred. Following the outcome of the security for costs application, the respondent had to have appreciated that costs would be sought from him personally.

They contended that the proceedings had been brought for the personal benefit of the respondent, his being an extension of him, and that the court should exercise its jurisdiction under S51(1) Senior Courts Act 1981 and CPR 48.2 to add him as a party for costs purposes. Allowing the application, the High Court judge held that it was clear from the authorities that the power to add a party for the purposes of costs should be sparingly and exceptionally exercised and that each case turned on its own facts. It was difficult to see why the applicants should

04


Jurisdiction There are two cases to report this week, with a similar

to the desirability of legal certainty contained in the recitals

theme: when can someone who is not a resident in England

to the Regulation.

& Wales bring a claim in the English & Welsh courts? In Allen and others v Depuy International Ltd (2014) EWHC 753 (QB) the defendant manufactured prosthetic implants in England. The claimants represented a few hundred overseas residents who had been implanted with the devices. The first to fourth claimants had their implants in New Zealand or Australia, and remaining claimants had theirs in South Africa. After experiencing problems with the implants from an adverse reaction to metal debris, the claimants issued proceedings in England, as the defendant’s country of domicile, alleging that the devices were defective. It was common ground that, for the purposes of determining the applicable law under S11(2)(a) Private International Law

‘...where a manufacturer faced a claim… for a defective product, the place of the event giving rise to damage was... where the product in question was manufactured’

(Miscellaneous Provisions) Act 1995, the claimants had sustained injury in the country in which they first suffered

Under the 1995 Act, the general rule was that the applicable

the alleged symptoms. It fell to be determined whether (i)

law was the law of the country where the individual was

the event giving rise to damage (EGRD), for the purposes

when he sustained the injury. There was no reason to

of Article 31 Regulation 864/2007, was prior to 11

displace that rule under S12 of the Act. English law was

January 2009, by which time all the prostheses had been

not, therefore, applicable. The applicable law for the first to

manufactured, distributed and implanted, or after that date;

fourth claimants was that of New Zealand, and the remaining

(ii) if the EGRD was before January 2009, which law was

claimants that of South Africa.

applicable to the claims; (iii) if English law applied to any

Even if English law had been applicable to the claims, the

of the claims, whether the Consumer Protection Act 1987

1987 Act would not apply to them. The Act had no territorial

applied.

effect beyond the United Kingdom, European Union

The High Court judge held that where a manufacturer

or European Economic Area. Consumers who suffered

faced a claim for liability for a defective product, the place

damage outside the EEA and who had no connection with

of the EGRD was that where the product in question was

it, and defective products whose marketing and supply was

manufactured. The EGRD should therefore be the date of

outside the EEA, were not within the scope of the Act.

the manufacture or distribution of the defective prostheses

In the second case of Donkers and another v Storm Aviation

or, if that was incorrect, the date of implantation. There was

Ltd and others (2014) EWHC 241 (QB) the first claimant

no other intervening or proximate cause of the claimants’

was a German national in the employ of the third party

injuries. Any date other than that of the manufacture/

German airline who had travelled to Manchester airport

supply (or implantation) would present substantial practical

for the purpose of carrying out a maintenance check on

problems. It was undesirable for the EGRD to depend upon

an aircraft operated by the third party. The defendant, an

an individual’s reaction to an implant: that would be contrary

English company, provided ground-handling services for

05


the third party at the airport. It supplied the claimant with a

law of the substantive claim. The second claimant’s claim

nitrogen gas rig so that he could inflate one of the aircraft’s

was subject to German law only to the extent that any issue

tyres. The rig was faulty; it caused the tyre to explode,

arose as to whether there had been a subrogation or as to

and the claimant sustained serious injuries. The second

the extent of the subrogation. The third party could not rely

claimant was the social-insurance carrier for the transport

on exclusions and limitations governing employer’s liability

sector in Germany; it had made payments to the claimant

in German social accident insurance law.

under German social-security law arising from the accident. The defendant and third party had entered into a groundhandling agreement under which the third party agreed to indemnify the defendant against legal liability for claims; the agreement did not contain an express choice-of-law clause. The first claimant claimed damages against the defendant for personal injury arising out of the accident. The second claimed the benefits which it had already paid to the first claimant and an estimated sum for the future benefits that it would pay to him. The High Court judge was required to determine the applicable law. He held that it was to be determined by the Private International Law (Miscellaneous Provisions) Act 1995. Under S11(1), the general rule was that the

‘The tort was strongly connected to England, having regard to the location of the accident and the fact that the defendant was a company registered in England’

applicable law was the law of the country in which the events constituting the tort occurred. The third party had

The law applicable to the ground-handling agreement

argued that the general rule should be displaced under S12,

was governed by the Article 4 Rome Convention 1980. It

because it was substantially more appropriate for German

provided that the contract would be governed by the law of

law to determine the relevant issues: among other things,

the country with which it was most closely connected, while

Germany was the normal residence of it and of the claimant,

providing for an exception in the case of “a severable part

and the loss and the damage would be suffered in Germany.

of the contract which ha[d] a closer connection with another

The judge found that English law was the appropriate

country”. The applicable law was English law: the defendant

law. The tort was strongly connected to England, having

was registered in England and the contract was to be

regard to the location of the accident and the fact that the

performed in England. The object of the indemnity provision

defendant was a company registered in England. The factors

was not independent of the other provisions of the ground-

identified by the third party did not make it substantially

handling agreement. The agreement made provision for the

more appropriate for any of the issues to be determined by

arrangements between the parties, and the agreement as to

German law.

risk was an integral part of the agreement. If an indemnity

The national court before which a claim was brought had to recognise the claim of a responsible institution in another member state but the extent of the claim and the assessment of damages remained to be determined by the law of the national court. The determination of the claim that passed from the benefits recipient to the responsible institution had to be determined in accordance with the

clause was to be regarded as a simple independent obligation, severance would have to be granted in many situations and it would become the norm rather than the exception. In any event, the indemnity provision had a closer connection with England: the defendant was registered in England; further, the contract was governed by English law and was to be performed in England. 06


Credit Hire As credit hire claims are often linked with those for personal

relying on his impecuniosity, without qualification. An

injury we include the case of Zurich Insurance Plc v Umerji

averment by a claimant that he had to hire a replacement

(2014) EWCA Civ 357.

car for as long as he did because he did not have the money

The respondent/claimant had claimed against another driver after his car was damaged in an accident. The appellant was the other driver’s insurer. A liability judgment in default had been entered and the insurer was subsequently joined as a defendant. The claimant’s car had been worth about £8,000 and had been written off. Following the accident, he entered into a series of credit hire agreements to rent replacement cars, incurring rental fees of some £95,000 over a year-and-a-half. He claimed that he had been unable to afford to buy a replacement vehicle until the insurer paid him the pre-accident value of his old car. The claimant also incurred charges for recovery and storage of his old car for four months. The judge made directions for trial of the quantum issue and set a deadline by which the claimant had to confirm whether he intended to allege that he was impecunious at the time of the hire. He did not do so and an order at the next hearing contained a recital recording that he was debarred from relying on impecuniosity. At trial, the claimant indicated that he had not had the means to buy a replacement as soon as he knew that the damaged car was a write-off and the insurer asserted that he was debarred from relying on impecuniosity. The trial judge concluded that impecuniosity went to the question of credit hire, not duration of hire, and awarded damages for the entire period of hire. He also held that the claimant had acted reasonably in storing the car for four months because he would have been criticised if he had disposed of it before the insurer

to buy one was a claim of impecuniosity, just as much as a claim that he had to pay credit hire rates because he did not have the money to hire on the ordinary market, and it operated in the same way as a matter of law. It would make little practical sense to debar the claimant from relying on his impecuniosity for the purpose of claiming credit hire rates while allowing him to do so for the purpose of justifying the duration of the hire, which would require him providing full disclosure about his means, when the primary purpose of a debarring order was to establish whether the parties had to spend time and money going down that route. It did not follow from the fact that the order was discussed in the context of the claim for credit hire rates that there was a clear common understanding that that was the only intended impact of the order. Impecuniosity relating to rate and means was the same concept, and in both cases the burden was on the claimant to plead and prove his case. The claimant was therefore debarred from asserting that he could not afford to buy a replacement vehicle. It followed that he should only have been entitled to recover hire charges up to the date when he should reasonably have done so. It had been reasonable for him to wait until his car had eventually been disposed of for scrap before buying a replacement. He could have bought a replacement within a fortnight. Damages in respect of hire charges would therefore be awarded in respect of the period ending two weeks after disposal of the car.

had a chance to inspect it. The disputed elements of the

In relation to storage of the car, claimants’ advisers in similar

award were £92,387 in respect of hire charges and £2,540

situations were encouraged to put the defendant’s insurers

in respect of storage charges.

on notice promptly that storage charges were being incurred

Allowing the insurer’s appeal in part, the High Court judge held that the trial judge had been wrong. The starting point had to be the language of the debarring order, which purported straightforwardly to prevent the claimant from 07

and to impose a clear deadline after which the vehicle would be disposed of. However, in the instant case, the trial judge had not been wrong to hold that the claimant’s solicitors had done enough.


Although they had not imposed an explicit deadline, they had made it clear that storage charges were accruing, and had received no reply of any kind, despite sending two chasing letters. The appeal in relation to storage charges would be dismissed.

‘Impecuniosity relating to rate and means was the same concept, and in both cases the burden was on the claimant to plead and prove his case.’ Comment It can be seen that this case provides clarification of a number of points that arise in credit hire cases. First, impecuniosity is the same concept whether looking at the need for a claimant to use credit hire rates or when considering the period of hire claimed because the claimant did not have the means to buy a replacement car. Secondly, the case confirms that the burden of proof in both instances is on the claimant to plead and prove his claim. Thirdly, insurers must take notice when they are advised that storage charges are accruing and do everything possible to communicate to a claimant either that they wish to inspect the vehicle or confirm that it may be disposed of. Otherwise it may be difficult later to challenge the fact that storage was allowed to continue.

08


Post Jackson/Mitchell Cases The commercial case of Rattan v UBS AG London Branch

procedural points. In order to reinforce that message, the

(2014) EWHC 665 (Comm) sends out a very clear message

claimant was to pay the costs of the instant hearing on an

that while strict compliance with rules and orders is required,

indemnity basis within 14 days. The costs were summarily

parties to litigation should not try to take unreasonable

assessed at £4,500. The claimant’s argument had not only

advantage of minor errors by an opponent.

increased the expense of the case management conference,

The claimant and defendant were parties to an action in the Commercial Court. The claimant wrote to the defendant asking for confirmation that it would file its costs budgets “on” 28 February 2014. The defendant replied, indicating its agreement that they should be filed “by” 28 February. The

but had probably damaged the relationship of co-operation and trust which ought to exist between the parties’ legal representatives and which was necessary for the efficient conduct of litigation.

claimant filed its costs budget on 27 February. The defendant

Comment

filed its budget on 28 February. The claimant sought to

One of the unfortunate consequences of Jackson/Mitchell is

make a distinction between filing “by” and filing “on” the

that practitioners have been left with an appalling dilemma:

agreed date. His case was that as 28 February was only

do they waive minor/trivial breaches by an opponent on the

six clear days before the case management conference, not

basis that such latitude works both ways; or do they owe

seven clear days as required by CPR 3.13, the defendant

their clients a professional duty to exploit these situations?

was to be treated as having filed a budget limited to the applicable court fees and that it needed to apply for relief from sanctions if it wished to rely on the budget as filed.

‘..the Commercial Court would firmly discourage the taking of futile and time-wasting procedural points,’

Fortunately it appears that common sense may prevail with the announcement that the current rules are to be further amended to allow parties to agree time extensions of up to 28 days for serving certain documents, without needing to make an application to the court. This so called ‘buffer’ provision is not a reflection of concern for the parties or for justice but to relieve the pressure on the courts which are currently deluged with applications for extensions of time. However, in the meantime, McTear and another v Englehard and others (2014) EWHC 722 (Ch) is another example of the court applying CPR robustly. The applicants, the defendants to a claim brought by the

Rejecting the application, the High Court judge held that the

claimant/respondents, sought extensions of time to serve

claimant’s contention was manifest nonsense and completely

witness statements and disclose documents or, if those

without merit. There had clearly been an agreement that 28

extensions were refused, relief from sanctions. They also

February was an acceptable day to file the costs budgets. If

sought permission to re-amend their amended defence. The

relief from sanctions had been necessary, which it was not,

claimant applied for the amended defence to be struck out.

the case for such relief would have been overwhelming. It

The claimants were the former joint administrators of

was clear from previous authority that the Commercial Court

a company and the former supervisors of a company

would firmly discourage the taking of futile and time-wasting

voluntary arrangement into which the company had

09


entered. They brought proceedings claiming that payments

the defendant should not be permitted to adduce their

totalling £412,739 which the company had made, before

accountant’s witness statement as it contained expert

it went into administration, to the seventh applicant, the

evidence for which no permission had been sought. The

holding company of the group containing the company,

application to re-amend their amended defence would

were loans which the holding company had now to repay.

also have to be refused because the proposed pleas would

A master gave permission to the defendants to amend their

involve consideration and resolution of matters of law that

defence and imposed deadlines for standard disclosure by

were not entirely straightforward and of matters of fact that

list and the serving of witness statements. The defendants

did not arise on the amended defence; and at the very least

did not comply with the ordered time limits, missing the first

justice required that the claimants should be afforded an

deadline by 50 minutes.

opportunity to investigate and give consideration to those

They sought an order pursuant to CPR 3.1(2)(a) extending time for the service of their witness statements by one hour or relief from sanction under CPR 3.9 and an order extending the time for service by them of further disclosure by list, including information provided by their accountant, or relief from sanction related thereto. They also applied for permission to re-amend their amended defence. The claimants sought an order striking out the amended defence pursuant to CPR 3.4(2)(c) for non-compliance with the master’s orders and for seeking to adduce expert evidence without the leave of the court pursuant to CPR 35.4(1). The deputy High Court judge held that if non-compliance with an order was trivial, the court would usually grant a prompt application for relief from a sanction; otherwise the applicant would need a good reason for the non-compliance. However, even where non-compliance, taken by itself, might be characterised as trivial, for instance where the party had narrowly missed the deadline imposed by the order, it might become more significant when seen against the background of other matters. In the instant case, if all that had happened was that the defendant had been 50 minutes late in serving witness statements to which no other objection could be taken, the failure to serve them on time was trivial. However,

matters, which they would not have if the proposed new pleas were to be allowed in at the present late stage and after the trial had begun and they were not granted an adjournment to deal with them.

‘...even where noncompliance, taken by itself, might be characterised as trivial… it might become more significant when seen against the background of other matters...’ Although the defendants were in breach of the master’s orders and had also sought to adduce expert evidence without the leave of the court, it would be a disproportionate response to all their defaults to strike out a pleaded case that had been placed on the record before any of the recent failures to comply with court orders and the CPR occurred.

that was not all that had happened and the court was not constrained to considering the period of delay alone and nothing else when deciding whether to grant permission pursuant to CPR 32.10. Nor was the subject matter of the defendant’s application for an extension of time for service of further disclosure trivial and no good reason had been made out for their default in providing disclosure and as to why an extension of time should be granted. Moreover 010


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The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 8 Bedford Park, Croydon, Surrey CR0 2AP. Parabis Law LLP is authorised and regulated by the SRA.

Legal Watch - Personal Injury - Issue 12  

Plexus Law / Greenwoods Newsletter

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