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Contents...

A Forward to the 2014 Editions of Crime Scribe................................................. 6 1

8

December 2014.................................................................................................................. 16

July 2015................................................................................................................................... 102

The Claims Portal Update-Background Searches.............................................................. 102

The Medco Update................................................................................................................ 103

CICA......................................................................................................................................... 16

CPR Case Law Roundup....................................................................................................... 104

Clinical Negligence................................................................................................................ 20

Funding and CFAS.................................................................................................................. 105

Damages................................................................................................................................. 24

Costs: PART 36, Partial Success and Entitlement?............................................................... 106

Limitation................................................................................................................................. 26

Practitioner News-NIHL is the New Whiplash!...................................................................... 106

Clinical Negligence................................................................................................................ 28

Holiday Claims........................................................................................................................ 28

2

9

August 2015............................................................................................................................ 108

January 2015......................................................................................................................... 32

Coventry v Lawrence: A Sigh of Relief for Practitioners as the Supreme

Court Endorses the Old CFA Rules........................................................................................ 108

Secondary Victims: Definition of “Horrifying”...................................................................... 109

Clinical Negligence................................................................................................................ 32

Success Fees........................................................................................................................... 37

Appeal Delays and New Guidance.................................................................................... 110

Employers Liability................................................................................................................... 38

Claim Forms Are For Service: Another Reminder................................................................ 110

Court Bundles: Another Warning from Jackson LJ.............................................................. 111

THE NEW UNINSURED DRIVERS MIB AGREEMENT.................................................................. 112

3

February 2015....................................................................................................................... 40

Clinical Negligence................................................................................................................ 40

RTA............................................................................................................................................ 41

10 September 2015................................................................................................................. 114

Vicarious Liability..................................................................................................................... 42

Negligence.............................................................................................................................. 43

Children and Additional Liabilities: A Red Card for Practitioners?................................... 115

Quantum................................................................................................................................. 46

Case Law Update.................................................................................................................. 117

Medco: There May be Trouble Ahead................................................................................ 118

4

Clinical Negligence................................................................................................................ 48

March 2015............................................................................................................................. 50

QOCS Protection: No Reasonable Cause of Action.......................................................... 114

11 October 2015........................................................................................................................ 120

Employers Liability................................................................................................................... 50

Social Media and Litigation.................................................................................................. 120

Protection from Harrassment................................................................................................. 53

Relief from Sanctions: Recent Cases.................................................................................... 120

Clinical Negligence................................................................................................................ 55

Fundamentally Dishonest and Exemplary Damages......................................................... 121

RTA............................................................................................................................................ 59

Children and Motorists: Guidance on Contributory Negligence..................................... 122

Inquests are Not Civil or Criminal Trials................................................................................. 123

Witness Evidence, Letters before Action and Pleadings................................................... 124

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April 2015.................................................................................................................................. 50

Clinical Negligence................................................................................................................ 62

Contributory Negligence....................................................................................................... 62

12 November 2015.................................................................................................................. 125

CICA-Quantum....................................................................................................................... 64

CPR 36: OFFER LETTERS........................................................................................................... 126

RTA- MIB.................................................................................................................................... 66

PART 36 OFFER BY CLAIMANT ATTRACTS INDEMNITY COSTS ONLY FROM THE DATE

Quantum................................................................................................................................. 68

OF EXPIRY OF THE OFFER........................................................................................................ 127

Costs and Part 36.................................................................................................................... 70

ALLOCATION AND FIXED RECOVERABLE COSTS UNDER CPR 45........................................ 127

Indemnity or Contribution?................................................................................................... 71

FAILURE TO GIVE DISCLOSURE IN RELATION TO LATER ACCIDENT: RELIEF FROM

6

May 2015.................................................................................................................................. 74

Jurisdiction over Belgian defendants................................................................................... 74

SANCTIONS REFUSED.............................................................................................................. 128

ASSIGNMENT AND CFA’S: A SETBACK FOR LAW FIRMS?..................................................... 129

CLAIMS PORTAL NEWS............................................................................................................ 120

Limitation................................................................................................................................. 76

Professional Negligence........................................................................................................ 79

Interim Payments.................................................................................................................... 81

Ex-Turpi..................................................................................................................................... 84

7

June 2015................................................................................................................................. 90

RTA Contributory Negligence................................................................................................ 92

Clinical Negligence................................................................................................................ 98

Negligence and Contributory Negligence......................................................................... 100

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A Forward to the 2015 Editions of Personal Injury Scribe

Hello and welcome to this foreword to the 2015 yearbook of the Personal Injury Scribe. I took over this monthly update, half way through the year from Nicky Carter, who had done a splendid job in summarising key developments in the field of personal injury law.

When I was first asked to write a monthly review, I thought that it might be difficult to find new developments to write about every month. However, that has not proved to be the case. It always amazes me how many liability cases are reported and how procedural and cost developments continue to affect practitioners as the post Jackson landscape is being mapped out by the judiciary.

I do hope that you have enjoyed reading them, both for their legal content and for my comments. It was a very busy year with, as usual, important cases on liability across the range of PI and Clinical Negligence cases, CPR36, proportionality issues, fixed fees, funding and evidence.

Nicky Carter started the year off with an employer liability focus, covering two High court cases. Firstly, Dusek and others v Stormharbour Securities LLP [2015] EWHC 37 a fatal helicopter crash, involving a pilot who was employed on a project by the defendant employer. The court held that the personal safety of their employee would be entirely dependent on the safe operation and performance of that chartered helicopter flight. This required the defendant to make at least some form of inquiry into the safety of the trip and carry out some form of risk assessment. In Broni and others v Ministry of Defence [2015] EWHC 66, there was an appeal by three former servicemen who had been injured in service and where there was dispute about whether the fixed success fee regime applied. It was held that the fixed success fee regime in (pre 1 April 2013) CPR 45, s IV did not apply to claims brought by members of the armed forces in respect of injuries suffered at work.

We covered in February an important decision from the Court of Appeal on vicarious liability. In Graham v Commercial Bodyworks Ltd [2015] EWCA Civ 47 the Court of Appeal seems to have returned to the ‘older’ case law analysis of what amounts to ‘in the course of employment’ at least in respect of actual employer-employee cases. In this case the claimant’s case failed as the act of negligence by the coemployee ( fellow employee lit up a cigarette as a prank which then set fire to the 6

7

claimants overalls) was found not to have occurred in the ‘course of employment’ - the creation of the risk was “not sufficient to impose liability. The real cause of Mr Graham’s injuries was not was the no doubt frolicsome but reckless conduct of Mr Wilkinson which cannot be said to have occurred in the course of his employment.

Note: this case may now be decided differently in view of the two co-adjoined appeals from the Supreme Court ( March 2016 PI Scribe).

The March edition featured the landmark clinical negligence case on informed consent, Montgomery v Lanarkshire Health Board[2015] All ER (D) 113 (Mar) [2015] UKSC 11, [2015] All ER (D) 113. The Supreme court came to the conclusion that the test applied in the case of Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital ([1985] 1 All ER 643 ) was profoundly unsatisfactory. Since Sidaway, the paradigm of the doctor-patient relationship implicit in that case had ceased to reflect the reality and complexity of the way that healthcare services were provided, or the way in which the providers and recipients of such services viewed their relationship. Particularly significant was that patients were widely regarded as persons holding rights, rather than passive recipients of the care of the medical profession. It was also relevant that it had become far easier, and more common, for members of the public to obtain information about symptoms, investigations, treatment options, risks and side-effects through media.

The Court said it would be a mistake to view patients as uninformed, incapable of understanding medical matters, or wholly dependent on a flow of information from doctors. This case is more in line with the US courts and a rejection of the old “doctor knows best” approach which has characterised the NHS in the past.

We also have in March an important Court of Appeal case which is a must read for those interested in the connection between risk assessments and breaches. In West Sussex County Council v Fuller [2015] All ER (D) 140 (Mar)[2015] EWCA Civ 189 the claimant was injured at work when she lost her footing when going up the stairs carrying post to different offices within the Council building. The trial judge found that she had simply misjudged her footing but was persuaded that the law “compelled” him to find for the claimant under reg 3 of the Management of Health and Safety at Work Regulations 1999, SI 1999/3242, and reg 4 of the Manual Handling Operations Regulations 1992, SI 1992/2793. The Court of Appeal in a detailed judgment allowed the appeal as there was no link between the breach and accident. The fact that there was no risk assessment did not mean that the employers were automatically liable.

Following in the footsteps of Montgomery, we have in April, Spencer v Hillingdon Hospital NHS Trust [ 2015] All ER (D) 172 (Apr). The principal issue before the court was the information that the Hospital should have provided to the claimant about the 8

9

signs and symptoms of deep vein thrombosis and pulmonary embolism including. In the light of the Montgomery decision, the test that the court should now apply was to be the Bolam test with the added gloss that the court should pay regard to what the ordinary sensible patient would expect to have been told. The court was satisfied that the claimant had not and could not reasonably have foreseen that by not seeking medical attention for his calf pain he would suffer deep vein thrombosis and a pulmonary embolism; matters that should have been in the mind of the staff of the hospital and communicated to the claimant. This case, and Montgomery, must have created ripples across the NHS in terms of new documentation and information to provide to patients when undertaking standard surgery or procedures.

In the May edition (covered by me again later in the year) we had an important judgement from the Court of Appeal in Proctor v Raleys Solicitors [2015] EWCA Civ 400, who robustly rejected submissions that financial constraints and economic pressures require solicitors to ‘commoditise’ their advice. This was very clear warning to those practices that use standard letters and tick-box questionnaires as a substitute for clear client instructions.

The June PI Scribe featured a helpful High Court case dealing with quantum issues for a claimant who suffered catastrophic brain injury as a result of clinical negligence (admitted). HS v Lancashire Teaching Hospitals NHS Trust [2015] EWHC 1376 (QB) is of particular interest to practitioners as the court looked carefully at (i) amount recoverable for future care; (ii) the amount recoverable for case management; (iii) the sum recoverable to cover the additional cost of holidays caused by HS’s disability; and (iv) whether the cost of a hydrotherapy pool at HS’s home was recoverable. Mr Justice William Davis’s judgement is a tour de force and a great starting point for understanding the principles for assessing future care in complex case.

July came with a useful insight into partial success and CPR 36. In Webb v Liverpool Women’s NHS Foundation Trust [2015] EWHC 449 (QB) the High Court took the view that because the claimant had alleged negligence on two bases (firstly that the obstetrician was negligent and secondly that the midwives were negligent) and had won only on the first it was right to make a costs order only in respect of the first basis.

The claimant was as a result deprived of the Part 36 enhancements in respect of her costs relating to the second basis for the claim.

In my August edition, I referred to the long awaited decision of the Supreme Court in Coventry v Lawrence [2015] UKSC 50. A 7 Justice panel held, in a majority judgment given by Lords Neuberger and Dyson, that the CFA regime was compatible with 10

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the Article 6 right to of fair access to a court. I also covered a short but helpful report on Lawtel of the decision of Stewart J in Dzekova -v- Thomas Eggar PPL (QBD 17/07/2015), which was a timely reminder during the holiday season of leaving matters to the last minute, with the wrong assumptions being made about dates and addresses; this is a must read for everyone!

In my September slot, I referred to Wall -v- British Canoe Union, an unreported decision of HH Judge Lopez in the Birmingham County Court on the 30th July 2015, we have a salutary reminder to claimant practitioners that QOCS protection does not apply in a case where an action is struck out when a claimant has shown no reasonable grounds for bringing the proceeding. In the same edition, I mentioned a reported decision of a Birmingham District Judge, A & B -v- The Royal Mail Group [2015] EW Misc B24(CC)(14th August 2015), which is a scathing judgement of the practice of setting a 100% success fee and the purchase of a ATE premium in a simple RTA case for an infant. I have previously covered this issue elsewhere and whilst there are issues with this judgement, claimant firms need to urgently address their risk assessment policies.

My October review included the practice of defendants and insurer regularly checking social media sites to see if there is anything that may call into question a party’s or witnesses credibility. I referred to the judgment of Judge Seymour in Cirencester Friendly Society -v- Parkin [2015] EWHC 1750(QB) and how social media can have a real effect in civil cases, where a party effectively incriminates himself through a social media account. In the same edition, I also referred to the landmark Scottish case that was heard by the Supreme Court, Jackson-v-Murray, [2005] PIQRP 249 and deals directly the principles for the assessment of the proportions of liability of drivers of vehicles and pedestrians with whom they come into collision.

The November edition contained a worrying case for those who have had files transferred to them as part of a work in progress sale. In Denise Jones –v- Spire Healthcare Limited [2015, Liverpool County Court, District Judge Jenkinson, who is the regional costs judge, found that various assignments had not been motivated in any way by particular trust and confidence in a particular fee earner, and therefore the purported assignment fell outside the exception established in an early authority meaning that such assignment was not possible and that what had actually occurred was a novation. The case has been appealed and no doubt will be watched various interested parties.

In December, we had covered the shock announcement from George Osborne about a rise in the small claims court limit. Osborne said he would raise the small 12

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claims limit to £5,000 and abolish general damages for soft-tissue claims (which include whiplash injuries). Addressing the House of Commons, he said: “We’re going to bring forward reforms to the compensation culture around minor motor-accident injuries. This will remove over £1bn from the cost of providing motor insurance…so motorists see an average saving of £40-£50 per year off their insurance bills.”

That concludes my brief review of last year and no doubt-if anything is certain in the world of personal injury - the year ahead will be as challenging as the last.

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Chapter 1 December 2014

CICA CP (A Child) v First-tier Tribunal (Criminal Injuries Compensation) (British Pregnancy Advisory Service/Birthrights and another intervening) [2014] EWCA Civ 1554 CP was born with foetal alcohol spectrum disorder (FASD), as a direct consequence of her mother’s excessive drinking while pregnant. It was asserted that the mother had been aware of the consequential danger of harm to her baby. An application for compensation was made on behalf of CP to the Criminal Injuries Compensation Authority (CICA). CICA rejected her application on the grounds that CP had not sustained an injury directly attributable to a crime of violence within the terms of the 2008 Criminal Injuries Compensation Scheme.

On appeal, the First-Tier Tribunal (Criminal Injuries Compensation) held that CP was eligible for compensation. It found that CP had sustained injury which was directly attributable to a crime of violence, contrary to s 23 of the Offences Against the Person Act 1861, which made it an offence to unlawfully administer to any other person any poison or noxious thing, so as to inflict grievous bodily harm. CICA sought judicial review.

The Upper Tribunal (Administrative Appeals Chamber) (the UT), in allowing the claim, determined that CP was not entitled to compensation. CP was not ‘any other person’ within the meaning of s 23 of the Act when she sustained injury whilst a foetus within her mother’s womb. Therefore, the mother could not have committed a criminal offence contrary to s 23 of the Act by drinking heavily whilst CP was a foetus.

Further, the UT determined that the actus reus and the mens rea had to coincide in time, such that, even if the mother had had the necessary mens rea whilst CP was still a foetus, there was not another person and there was no actus reus at that time. CP appealed.

CP submitted, First, that a foetus was capable of being any other person within the meaning of s 23 of the Act.

16

17

Secondly, and alternatively, a foetus became a ‘person’ when it was born. Since Attorney General’s Reference (No 3 of 1994)([1997] 3 All ER 936) (AG’s Reference), a case in which the defendant had stabbed a woman in the stomach, having known her to have been pregnant, had analysed the actus reus of manslaughter as a continuing act, which ran from the moment of the attack on the mother to the death of the child after birth, there had been no good reason why the criminal law should not equally protect a foetus from conduct which resulted from deliberate acts causing foreseeable harm, and which resulted in grievous bodily harm evident after birth.

The appeal would be dismissed.

(1)

The first submission, as to the status of the foetus, could not be sustained.

The decision in AG’s Reference itself was fatal to it. Both Lord Mustill and

Lord Hope in that case had been in agreement that a foetus was not to

be regarded as another person (see [37], [39], [57], [58] of the judgment).

R v Tait [1989] 3 All ER 682 considered; A-G’s Reference (No 3 of 1994) [1997] 3 All ER 936 considered; R (on the application of Jones) v First-Tier Tribunal [2013] All ER (D) 103 (Apr) considered.

(2)

If the foetus was not another person at the time of the administration

of the noxious substance, then the offence could not be complete

at that point. The situation was distinct from the crime of manslaughter,

which required death in order to complete the crime. The reality was

that the harm had been done to the child whilst it was in utero. The fact

that if the child was born alive it would suffer the consequence of the

insult to it whilst in the womb did not mean that, after birth, it had

sustained damage by reason of the administration of the noxious

substance. The fact that deficits could not be identified until the child had

reached milestones in its life did not constitute fresh damage. It merely

meant that the damage had already been done, but had only then

become apparent (see [41]-[43], [57], [58] of the judgment).

That was fatal to CP’s contention, and the attempt to equate the offence under s 23 of the Act with the decision in AG’s Reference as to manslaughter could not succeed. The basis upon which the actus reus had been extended in a manslaughter case could not apply to the present case, since nothing equivalent to death had occurred to CP after her birth. Therefore, the UT had been correct to conclude that there had been no link between the administration of the alcohol and the born child for the purposes of s 23 of the Act (see [40], [44], [45], [57], [58] of the judgment).

A-G’s Reference (No 3 of 1994) [1997] 3 All ER 936 distinguished.

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Clinical Negligence Wild and another v Southend University Hospital NHS Foundation Trust [2014] EWHC 4053 (QB) The claimants, Mr and Mrs Wild were expecting their first child in March 2009. Mrs Wild had been under the care of the antenatal clinic at a hospital managed by the defendant NHS Trust. At the expected due date for the birth of her child, Mrs Wild had a show of blood and rang the hospital who told her to come in. Accompanied by her husband, she did so. It was discovered that her baby had died in the womb.

The baby was delivered still-born. The claimants would have named the child Matthew. Mr Wild discovered what had happened when the second midwife had failed to find a heartbeat and then when the doctor told him that he had a correct realisation that the baby had died. The claimants commenced proceedings against the defendant alleging negligence and claiming damages. The defendant admitted the claim in respect of Mrs Wild and, by a consent order had agreed to pay her the sum of £41,948.64 in settlement of her claim. Mr Wild, as a secondary victim, had also claimed damages for psychological injury. The factual case was based from the conclusions of the psychiatrists, on Mr Wild’s reaction to the death of Matthew in the womb and the delivery of a still-born baby on the day following his discovery of that fact. There was no issue as to the genuineness of the injury suffered

by Mr Wild.

It was contended that Mr Wild was entitled to compensation for his psychiatric injury as a secondary victim within the statements of principle in Alcock v Chief Constable of South Yorkshire Police[1991] 4 All ER 907 (Alcock). The defence denied the any entitlement to damages as a secondary victim and relied in particular on the statement of principle in Taylor v A. Novo (UK) Ltd [2014] All ER (D) 167 (Mar).

One of the issues related to the identification of the primary victim. It was submitted by the defendant that a father could never succeed in a nervous shock case based upon the still-birth of his child.

The claim would be dismissed.

(1)

As a matter of law there was no distinction between a child in the

womb and his mother. The mother was the primary victim. Even though

an alleged secondary victim’s shock-induced psychiatric illness might be

more to do with concern for the unborn child than for the mother,

nevertheless any shock was a consequence of the injury or threatened

injury to the mother in that her foetus had been damaged or destroyed by

the relevant negligent act (see [21], [22] of the judgment).

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09/02/2016 11:47 09/02/2016 11:47 09/02/2016 11:47

Although Mr Wild could not, as a matter of law treat Matthew as the primary victim, for the purposes of the claim his potential for separate existence could not be ignored either on the facts or as matter of law. The circumstances that gave rise to the psychological injury related to the death of Matthew in the womb but, because he was considered in law part of his mother, Mrs Wild was properly described as the primary victim. Therefore it could not be accepted that Mr Wild could never succeed in an Alcock-type secondary victim claim in a still-birth case, if it was not accompanied by his witnessing at the same time the actual or threatened death or serious injury to the mother (see [21]-[23] of the judgment).

Page v Smith (No 2) [1996] 3 All ER 272 considered; Froggatt v Chesterfield and North Derbyshire Royal Hospital NHS Trust [2002] All ER (D) 218 (Dec) doubted.

(2)

The control mechanisms in relation to secondary victims were usually put

under five heads;(i) a marital or parental relationship; (ii) the injury arose

from the sudden and unexpected shock to the claimant’s nervous system;

(iii) the claimant was either personally present at the scene of the

accident or was in the more or less immediate vicinity and witnessed

the aftermath shortly afterwards; (iv) the injury suffered arose from

witnessing the death of, extreme danger to, or injury and discomfort

suffered by the primary victim; (v) there was not only an element of

physical proximity to the event but a close temporal connection between

the event and the claimant’s perception of it combined with close

relationship of affection between the Plaintiff and the primary victim.

Without all of those elements being present the requirement of legal

proximity had not been made out (see [25], [26] of the judgment).

In the instant case, Mr Wild had the necessary relationship with Mrs Wild and the causative link between the circumstances was not in dispute. However, it could not be said that (iii), above, had been made out. Mr Wild had experienced a growing and acute anxiety which started when the second midwife failed to find a heartbeat. That developed to the point at which, simply because of the behaviour of the clinical staff and the words of the doctor he had a correct realisation that the baby had died. None of that equated to actually witnessing horrific events leading to a death or serious injury. Accordingly, Mr Wild could not on the facts succeed in his claim for damages which had therefore to be dismissed (see [26], [47] of the judgment).

Alcock v Chief Constable of South Yorkshire Police [1991] 4 All ER 907 considered.

22

Mr R Scott - Watson

Professor Roger James

BSc(Hons) MB BS LLB (Hons)(Open) Cert.Av.Med. Cert MR(2) CUEW DDAM FRCS(Ed)

INDEPENDENT HEALTH CONSULTANT AND EXPERT WITNESS

RSW Medico-Legal Ltd

Professor Roger James is an independent Health Consultant with extensive experience of UK and international clinical governance, regulatory procedures, service development, reconfiguration and delivery, particularly in the field of cancer services.

Expert Witness in Orthopaedic Trauma. APIL Expert.

Injury reports and Employment Tribunal reports (Equalities Act).

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Low Velocity Impact Traffic Accident cases accepted.

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Associate Medical Director for Patient Safety & Consultant Obstetrician and Gynaecologist T: 07748 645 864 E: jaiyesimi@obs-gyn.org 23

Damages Browne v Commissioner of Police of the Metropolis [2014] EWHC 3999 (QB) The claimant, who had worked as a close protection security guard, was walking along Kentish Town Road with the comedian and television celebrity NF. As they walked along the road the claimant and NF were seen by two police officers, in a patrol car. The officer believed that the two men were showing signs of drug use and so they turned the car round to follow them intending to stop them and talk to them.

During the ensuing incident NF was restrained, handcuffed and searched and then taken to the police station where he was subjected to a strip search. No drugs or drug related materials were found on him and he was subsequently released without charge or further action. The claimant was searched and various drug related materials were found. An ambulance was called to attend to the claimant who had by then been arrested. He was taken to the hospital. In the course of the incident, the claimant suffered a severe, comminuted fracture of his right tibial plateau known as a Schatzker type 6 fracture for which he was treated in hospital. It was a significant injury. He was in hospital for about a month. He had undergone several further operations and had ongoing difficulties. No further action was taken by the police in respect of the drug related materials. The claimant brought an action for damages for assault and battery against the police in respect of the knee injury.

The main issue was for the court to decide how the claimant came by the fracture in the course of the incident. It was the claimant’s case that he had been the subject of a deliberate assault. The defence suggested that the incident was brought about as a result of the reasonable force required in light of the claimant’s resistance.

The claim would be allowed.

In the circumstances, the claimant succeeded in his claim on the basis that the search of him was unlawful by reason of the failure to give the appropriate information and secondly because in any event excessive force was used to restrain him in the convenience store. The claimant had not been deliberately assaulted by the police, however, he had used unnecessary and unreasonable force to restrain him, believing he was being ignored. Thus it amounted to an assault. Finally, the claimant had not been not guilty of any contributory negligence (see [46], [54] of the judgment).

General damages for pain, suffering and loss of amenity fell into the very serious category of severe leg injuries, that was, £40,300 -£62,150. The appropriate award would be £55,000. For the subsequent fracture to the femur the appropriate award would be £6,700 with a total sum of £108,491 (see [56], [60], [65] of the judgment).

Sheppard v Secretary of State for the Environment [1975] JPL 352 considered.

24

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25

Limitation Chief Constable of Hampshire Constabulary v Southampton City Council [2014] EWCA Civ 1541 Section 10 of the Limitation Act 1980 provides, so far as material: ‘(3) If the person in question is held liable in respect of that damage— (a) by a judgment given in any civil proceedings; or (b) by an award made on any arbitration; the relevant date shall be the date on which the judgment is given, or the date of the award (as the case may be). For the purposes of this subsection no account shall be taken of any judgment or award given or made on appeal in so far as it varies the amount of damages awarded against the person in question. (4) If, in any case not within subsection (3) above, the person in question makes or agrees to make any payment to one or more persons in compensation for that damage (whether he admits any liability in respect of the damage or not), the relevant date shall be the earliest date on which the amount to be paid by him is agreed between him (or his representative) and the person (or each of the persons, as the case may be) to whom the payment is to be made.’

C had been employed by the claimant police constabulary. The police station where he had worked was based in a building owned by the defendant local authority and let to the constabulary under a tenancy at will. C developed mesothelioma. He issued proceedings in the High Court against the constabulary that alleged that he had negligently, and in breach of statutory duty, been exposed to asbestos. The constabulary, under the CPR Pt 36 procedure, settled the claim for £76,350 plus costs. C accepted the offer and the court made a consent order. Subsequently, the solicitors agreed the amount of C’s costs payable by the constabulary, being £140,000 inclusive of VAT and interest, and a costs judge in the Senior Courts Costs Office made an order that gave effect to that agreement.

The constabulary took the view that the authority bore some responsibility for C’s injuries as it had negligently allowed asbestos lagging to be present in its building.

Accordingly, it sought a contribution to the damages and costs it had paid to C and a contribution towards its own costs that it had incurred in defending C’s claim. The authority’s insurer rejected the claim and, on 3 December 2012, the constabulary commenced contribution proceedings alleging that the authority had been negligent in having failed either to remove or properly encapsulate the asbestos lagging. The judge addressed the issue of limitation as a preliminary matter.

She concluded that the case fell within s 10(4) of the Limitation Act 1980. She held that there had been a binding agreement between C and the constabulary on 4 November 2010, that being the date when the Pt 36 offer had been accepted. The limitation period had commenced on that date and not the later date on which

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the consent order had been made, therefore, the constabulary’s claim was statute barred. The constabulary appealed against the dismissal of its claim.

It submitted: (i) that the case had fallen within s 10(3) of the 1980 Act and not s 10(4); and (ii) if the case had fallen within s 10(4), then the phrase ‘amount to be paid’ in that sub-section embraced costs as well as damages, therefore, the judge had erred in finding that time had started to run on 4 November 2010 as the amount of costs had not been agreed until September 2011. Consideration was given to ss 1(1) and 2(1) of the Civil Liability (Contribution) Act 1978.

The appeal would be dismissed.

(1)

Section 10(3) of the 1980 Act had had no application in the present case

and the judge had been correct to have proceeded under s 10(4). The

consent order had not constituted a ‘judgment’ by which the

constabulary had been ‘held liable’ in respect of C’s injuries. Accordingly,

it had not fallen within s 10(3) of the 1980 Act. Nor had the later costs order

constituted a ‘judgment’ that fell within that section. The constabulary

and C had settled their litigation using CPR Pt 36, so there had never been

a judgment which fell within s 10(3) of the 1980 Act (see [30], [33], [52], [53]

of the judgment).

Knight v Rochdale Healthcare NHS Trust [2003] 4 All ER 416 considered; Aer Lingus plc v Gildacroft Ltd [2006] 2 All ER 290 considered.

(2)

Section 10(4) of the 1980 Act was focused upon the sum which the

defendant agreed to pay for the actual damage caused. It was not

focused upon the defendant’s ancillary liability for costs, even though that

liability could be the subject to a contribution claim under the 1978 Act.

The word ‘damage’ in s 10 of the 1980 Act was a reference to the actual

damage which had been wrongfully caused to or inflicted upon the

claimant. The claimant’s right to recover costs from the defendant was

not part of the claimant’s ‘damage’; it was an ancillary entitlement,

subject to the court’s discretion. The phrase ‘the amount to be paid’

which appeared in s 10(4) of the 1980 Act had to be construed

consistently with the opening words of that sub-section. It meant the

amount to be paid in respect of the actual damage caused to the

claimant. It did not refer to or include the amount of costs which the

defendant had to pay to the claimant, even though those costs could be

the subject of a contribution claim (see [42]-[45], [52], [53] of the

judgment).

28

In the present case, time had started to run under s 10(4) of the 1980 Act on 4 November 2010, that being the date on which C had accepted the constabulary’s offer of damages under CPR Pt 36. Therefore, the constabulary’s claim was statute barred (see [46], [47], [52], [53] of the judgment).

BICC Ltd v Cumbrian Industrials Ltd [2001] All ER (D) 436 (Oct) considered; Mouchel Ltd and Van Oord (UK) Ltd (No 2) [2011] All ER (D) 110 (Jun) considered.

Clinical Negligence Davies v University Hospital of North Staffordshire NHS Trust and another [2014] EWHC 4004 (QB) The claimant was born in November 1991. She had suffered from headaches during her childhood. The claim related to care she had received in January 2001.

The claimant had had a tumour on the brain and, if a scan had been carried out in January 2001, that tumour would have been detected then. The court had to determine a preliminary issue as to whether or not the first defendant NHS Trust had breached its duty to exercise reasonable care and skill in the treatment of the claimant.

The principal issue was whether the NHS Trust had been negligent in failing, either on 6 January 2001, or the 28 January 2001, to arrange for a brain scan for the claimant, or in failing to arrange for paediatric follow-up at which a brain scan would have been considered or arranged.

The court ruled: On the evidence, there had been no breach of duty. The doctors on each occasion had acted in accordance with a responsible body of professional opinion. They had not been negligent (see [67] of the judgment).

Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 applied; Bolitho v City and Hackney Health Authority [1997] 4 All ER 771 applied.

Holiday Claims Lougheed v On The Beach Ltd [2014] EWCA Civ 1538 The defendant was the ‘organiser’ of a holiday package, as defined by the Package Travel, Package Holidays and Package Tours Regulations 1992, SI 3288/1992 (the Regulations) sold by it to CB. The package was for a party of five, which included the claimant. Therefore, under the Regulations, CB was ‘the principal

29

contractor’ and the claimant was a ‘consumer’. The accommodation was a Spanish hotel. During the claimant’s stay at the hotel, she slipped and fell while going down a flight of steps. The claimant sustained injuries. She brought proceedings against the defendant, contending that it was liable to her, pursuant to para 15(1) of the Regulations, and that the circumstance that water was deposited on the steps and/ or allowed to remain there until she slipped upon it was indicative that the hotel had not exercised reasonable skill and care in the discharge of its obligations owed to her. The claimant’s application for permission to rely upon a written report from a Spanish lawyer to advise upon relevant local Spanish regulations was refused.

The trial, therefore, proceeded in the absence of any expert evidence as to local standards. The recorder found for the claimant and awarded her damages. In so finding, he concluded that there was a foreseeable danger which arose from the use of the stairs by people who had come fresh from the pool. He further concluded that he had clear evidence from the hotel manager, L, that there were no specific standards in Spain relevant to the case and agreement with the proposition that it was not acceptable to leave floors wet. The defendant appealed.

It submitted, first, that the recorder had been wrong, as a matter of law, to have found that the hotel had been in breach of local standards, because the claimant had failed to adduce evidence of local standards. Further, the recorder had wrongly relied upon the evidence of L as evidence of local standards. Secondly, the recorder had been wrong, as a matter of law, to have found that the defendant bore any evidential burden of proof in cases of the present nature. The court considered Ward v Tesco([1976] 1 All ER 219), in which the court had held that the accident in that case ‘was such as in the ordinary course of things does not happen if floors are kept clean and spillages are dealt with as soon as they occur’.

The appeal would be allowed.

(1)

The judge had overstated the case when he had said that L’s evidence

had been that there had been no specific standards in Spain relevant to

the case. Agreement with the proposition that spillages, once identified,

should be dealt with took the matter no further at all. It begged the

question as to the steps needed to be taken to identify spillages. What

had been missing at trial had been any enquiry as to the general practice

in Spain in establishments of the sort in the present case, so far as

concerned the monitoring of the public areas, with a view to identifying

and removing any spillages or areas of liquid which might pose a hazard

to guests and staff. The recorder had recognised that standards might

not be the same in Spain as in the United Kingdom and that there would

be cases where the court was unable to draw an inference of want of 30

care without sufficient evidence of Spanish standards. The present was just

such a case, both because of the lack of relevant evidence on a point on

which the claimant had bore the evidential burden, and because it had

not been a proper case in which to draw an inference, without more, of a

lack of proper care (see [26], [27], [36], [37] of the judgment).

To impose an evidential burden upon a party, such as a travel agent or

(2)

even a tour operator who had no control over the management of

the hotel at which customers stayed, might create difficulties for those

potentially liable under the Regulations. However, given that para 15(1)

of the Regulations had expressly made a party liable, irrespective

of whether the relevant obligations were to be performed by that party,

that consideration could not be an absolute bar to the court, in a proper

case, inferring that an accident would not have occurred but for the

absence of proper care on the part of those for whose performance ‘the

other party to the contract’ was made liable. However, that ‘artificial

liability’ was a very good reason for not imposing upon a party an

evidential burden unless it had, at the least, been shown that the party for

whose performance it was liable had known of the likelihood of the

presence of a hazard, such as spillage, and of the danger to consumers

which that hazard posed if not dealt with promptly (see [33], [36], [37] of

the judgment).

The recorder had not, on the basis of the facts found, been justified in his conclusion that it had been an accident such as in the ordinary course of things did not happen if those who had the management of the hotel used proper care. It had been an accident which could have occurred despite the use of proper care. The present case had not been an appropriate case for the invocation of the Tesco v Ward principle. There had been no finding that spillage or the presence of water had been likely in the area. The recorder’s conclusion that ‘there was a foreseeable danger arising from the use of the stairs by children or even adults who have come fresh from the pool’ fell far short of a finding that the hotel had known of the likelihood of a dangerous situation arising. There had been no evidence that slipping at that place had a known likely risk, with sufficient frequency of occurrence that it had required a system to remove it, so that an accident could be inferred to be the result of the absence of a system which ought to have been in place or a failure in the operation of the system (see [31], [32], [36], [37] of the judgment).

The order giving judgment to the claimant would be set aside and her claim would be dismissed (see [34], [36], [37] of the judgment).

Ward v Tesco Stores Ltd [1976] 1 All ER 219 considered.

31

Chapter 2 January 2015

Clinical Negligence Border v Lewisham and Greenwich NHS Trust (formerly South London Healthcare NHS Trust)[2015] EWCA Civ 8 Court of Appeal, Civil Division The claimant had attended at the accident and emergency department of one of the defendant NHS Trust’s hospital. The doctor had inserted a cannula in her left arm, even though she had told him that there was a risk of oedema due to a recent procedure that she had undergone. The cannula site became infected, the claimant suffered a fairly serious case of oedema and was left with a permanent disability in her left arm.

The county court judge dismissed her claim for clinical negligence. The Court of Appeal, Civil Division, held that the judge had failed to take to its logical conclusion his finding that the cannula had been inserted without the claimant’s consent.

That had been a breach of the doctor’s duty of care. The matter would be remitted to resolve issues of causation.

The court ruled: There was only one tenable reading of the first instance judgment, namely that the judge had found that the doctor had gone ahead with the insertion of the cannula without having obtained the claimant’s consent, either express or implied. While it was established law that in a medical emergency, when the patient was incapable of giving consent, a doctor might proceed without consent provided that he was acting in the patient’s best interests, on the evidence in the present case, it had not been such a case of medical emergency. The claimant had been in the emergency room, but she had been fully conscious and capable of giving or withholding her consent.

The judge had, therefore, been wrong to have regarded the issue of consent as unimportant. A finding of absence of consent to the insertion of the cannula led inexorably to a finding of breach of duty in having inserted it. The judge’s error in not having taken his finding of absence of consent to its logical conclusion had been understandable in the circumstances, but would be corrected by the present court (see [19], [21], [24], [28], [29] of the judgment).

32

A declaration would be granted that the doctor had been in breach of his duty of care by having inserted the cannula without the claimant’s consent. The matter would be remitted to the judge for him to determine the outstanding issue of causation (see [27]-[29] of the judgment).

St George’s Healthcare NHS Trust v S, R v Collins, ex p S [1998] 3 All ER 673 distinguished.

Welch v Waterworth (Executor of the estate of Marjorie Waterworth, deceased)[2015] EWCA Civ 11Court of Appeal, Civil Division Judgment had been entered for the claimant against the defendant surgeon for damages for negligence on the part of the defendant in a surgical procedure performed by him upon the claimant’s late wife, following which, she had suffered kidney failure.

The Court of Appeal, Civil Division, in dismissing the defendant’s appeal, held, inter alia, that the judge had been entitled to have fastened upon those aspects of the evidence which he had found to have been reliable pointers to what had actually occurred during the procedure, without trawling through every issue, side issue or speculation that arose on the evidence or in argument.

The appeal would be dismissed.

(1)

The defendant’s oblivion as to what had gone on in the operation and

thereafter had amply justified a finding that his operation notes provided

very significant evidence of the clamping sequence that had actually

occurred. There had been entirely adequate evidence for a finding that

the defendant would not have been susceptible to the alleged alarm

bells and the judge had been entitled to have fastened upon those

aspects of the evidence which he had found to have been reliable

pointers to what had actually occurred, without trawling through

every issue, side issue or speculation that arose on the evidence or in

argument. Accordingly, the first ground of appeal would be rejected (see

[31], [32], [46], [47] of the judgment).

In the circumstances, the judge had not been required to have

(2)

addressed, individually, each and every one of the alarm bell points

which had been raised in the defendant’s closing submissions at trial. It

was not accepted that the judge’s judgment did not inform the

defendant why he had lost. Accordingly, the second ground of the

appeal would also be rejected (see [34], [35], [46], [47] of the judgment).

33

ST (a protected party by his mother and Litigation Friend, KT) v Maidstone and Tunbridge Wells NHS Trust [2015] EWHC 51 (QB) Queen’s Bench Division The proceedings concerned the trial of the issues of breach of duty and causation in the claimant’s clinical negligence claim against the defendant NHS Trust. The Queen’s Bench Division, in dismissing the claim, held that, although breach of duty had been established, the claimant had failed in his case on causation.

The claimant suffered from one and probably two congenital haematological conditions, including hereditary spherocytosis (HS), which was the cause of his severe anaemia. On 24 November 2004, when he was aged two, he was unwell and was taken to hospital. On each of the following two days, he was given blood transfusions and, simultaneously, a diuretic. Three days later, the claimant suffered seizures. He was found to have had a series of strokes, as a result of which he suffered brain damage, and had been left with severe and permanent disability. The claimant issued clinical negligence proceedings. The defendant NHS Trust admitted that it was negligent, by failing to admit the claimant to hospital on 24 November and by delaying performance of the blood transfusion until the following day. However, it denied negligence in failing promptly to administer intravenous (IV) fluids when the claimant had become dehydrated and by giving the claimant the diuretic.

The issues for determination were:

(i)

whether the defendant had breached its duty by failing promptly to

administer IV fluids when the claimant had become dehydrated and by

giving the claimant the diuretic;

whether the claimant’s injury had been caused by the effects of his HS,

(ii)

acute-on-chronic haemolysis, hypoxia/hypoxaemia, hypocapnia and

dehydration; and

(iii) whether, if focal arteriopathy had been the primary cause of pertubation

of the blood vessel wall, the claimant’s dehydration, acute-on-chronic

haemolysis, severe anaemia and the use of diuretics had caused or made

a contribution to the occlusion of the basilar artery and the consequent

strokes.

The claim would be dismissed.

(1)

Had the transfusion not been delayed, the claimant would not have

become significantly dehydrated overnight. Thereafter, had the

dehydration been adequately managed, with the administration of

34

IV fluids when necessary, it would certainly not have risen to the level

that it had. Further, any competent practitioner would have concluded

that to administer the diuretic at the time of both the first and second

transfusions would not be good medical practice. Accordingly, the

giving of the diuretic on both occasions had constituted a breach of duty.

It would have made some contribution to the dehydration the claimant

had already been suffering (see [76], [79], [80] of the judgment).

There was no convincing evidence that, in general, anaemia and

(2)

haemolysis gave rise to the risk of thrombus, emboli or stroke in a patient

who, like the claimant, suffered from HS. As to hypoxia, there was no

evidence that the claimant had been hypoxic at the material time, in

fact, the evidence pointed the other way. The claimant had undoubtedly

been hypocapnic, but the protective mechanisms available to patients

with HS were likely to have protected him from the vasoconstriction that

could result from hypocapnia in a normal patient. As to dehydration,

the claimant’s dehydration had not fallen within the severe category

and his haematocrit levels had been low. There was no authoritative

evidence that patients with the claimant’s level of dehydration or with his

haematocrit levels were prone to thrombus, emboli and stroke. Further,

there was no authoritative medical literature which confirmed that the

various factors might have a cumulative or synergistic effect to produce

such an outcome (see [200], [202] of the judgment).

On the balance of probabilities, the primary cause of the claimant’s

(3)

strokes had been a focal cerebral arteriopathy, which had, in turn, been

caused by the upper respiratory tract infection from which he had been

suffering. Such an infection was a clearly established risk factor for

arteriopathy and strokes in children, even when it was minor, as it

apparently had been in the claimant’s case. While there was a possibility

that the various conditions or some of them might have combined

cumulatively or synergistically with the arteriopathy to cause his strokes.

However, there was no objective and reliable evidence that the

claimant’s dehydration, acute-on-chronic haemolysis and/or severe

anaemia, whether together or separately, had contributed with the

arteriopathy to cause his strokes (see [208], [216] of the judgment).

35

Hayes v South East Coast Ambulance Service NHS Foundation Trust [2015] EWHC 18 (QB) Queen’s Bench Division The deceased suffered an asthma attack and called the ambulance. Although the crew attended the deceased, the deceased died and his wife brought a claim in negligence against the defendant NHS Trust. The Queen’s Bench Division held that there had been negligence and that negligence had caused the claimant’s death.

The deceased suffered from asthma which was described as brittle asthma.

Following a game of golf, the deceased suffered an asthma attack which resulted in his death despite the attendance of an ambulance crew. The claimant who was the former wife of the deceased, contended that there were a series of failures by the ambulance crew both in their assessment of the deceased’s condition and the treatment which they provided which should result in damages as her husband’s death had been caused by the negligence of the defendant. The defendant denied any breach of duty by the crew and said that in any event the outcome was inevitable and none of the measures put forward by the claimant either individually or in combination would have prevented the deceased’s death. The defendant contended that the claimant’s case was based on an analysis made with the benefit of hindsight and not the picture as it was presented to the crew at the time.

The claim was made pursuant to the Law Reform (Miscellaneous Provisions) Act 1934 (as amended) and the Fatal Accidents Act 1976 (as amended). The experts disagreed as to whether or not the measures contended for by the claimant would have affected the outcome. It was he claimant’s case that her former husband’s death was caused by the negligence of the defendant.

All matters breach of duty, causation and quantum were in issue.

The claim would be allowed.

On the facts and evidence, the defendant was in breach of its duty of care to the deceased. Had the defendant not been in breach, there would have been a 60% prospect of survival. In the circumstances the claimant succeeded on the issues of negligence and causation and therefore liability (see [136], [141], [142] of the judgment).

In respect of quantum it was agreed that the court should make some findings in principle in the hope that the parties could agree some figures (see [145] of the judgment).

36

Success Fees Broni and others v Ministry of Defence [2015] EWHC 66 (QB) Queen’s Bench Division Following an appeal by three former servicemen who had been injured in service, the Queen’s Bench Division, having regard to the Employers Liability (Compulsory Insurance) Act 1969, held that the fixed success fee regime in (pre 1 April 2013) CPR 45, s IV did not apply to claims brought by members of the armed forces in respect of injuries suffered at work.

The three appellants were members of the armed forces. Each had claimed in respect of injuries sustained whilst in service. The pre 1 April 2013 CPR 45 s IV stipulated fixed success fees in certain employers’ liability claims. That would include the injuries sustained in the cases of the three appellants if the other criteria for the application of the regime had been satisfied. CPR 45.20(1)(a) stipulated that: ‘this Section applies where… the dispute is between an employee and his employer…’ . ‘Employee’ was defined in r 45.20(3)(b) as an individual who had entered into or worked under a contract of service or apprenticeship with an employer (as per Employers Liability (Compulsory Insurance) Act 1969). With the exception of mesothelioma claims, success fees in personal injury (and Fatal Accidents Act 1976) claims against an employer could not be recovered between the parties where the conditional fee agreement (CFA) was entered into after 31 March 2013. It was decided in respect of the three claims that the regime in CPR 45 had applied because the claimant was an employee within the meaning of CPR 45.20(1)(a). On appeal, the appellants contended that the fixed success fee regime did not apply because they were not ‘employees’.

The issue was whether the fixed success fee regime applied to claims brought by members of the armed forces in respect of injuries suffered at work. The appellants submitted that a serving member of the armed forces did not work under a ‘contract of service’. Accordingly such a person was not an employee for the purposes of the 1969 Act or consequently for the purposes CPR 45 s IV. The respondent submitted, inter alia, that the court should adopt a purposive approach to the construction of the words ‘contract of service’ in s 2(1) of the 1969 Act, so that the relationship between a serving member of the armed forces and the respondent was treated as one of employer and employee and a contract of service existed for the purposes of CPR 45.20(1).

The appeals would be allowed.

The Ministry of Defence owed a duty of care to servicemen whether they worked under a contract of service or not. There was no ambiguity in CPR 45.20(1)(a) and (3)

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(b). The rule addressed itself to the question of what the term ‘employee’ meant. It was a person who fell within s 2(1) of the 1969 Act. There was therefore no scope for giving a broad or purposive interpretation to r 45.20(1)(a) different from the specific meaning given to the term ‘employee’ by s 2(1) of the 1969 Act. The words ‘contract of service’ in s 2(1) of the 1969 Act had a single meaning which did not vary (see [26], [28] of the judgment).

The fixed success fee regime did not apply to the claims, and accordingly the appeals would be allowed (see [29] of the judgment).

Quinn v Ministry of Defence [1998] PIQR P 387 applied.

Employers Liability Dusek and others v Stormharbour Securities LLP [2015] EWHC 37 (QB) Queen’s Bench Division The deceased died following a helicopter crash whilst employed on a project by the defendant employer. The deceased’s wife brought a claim against the employer.

The Queen’s Bench Division held that the scope of the defendant employer’s duty extended to the charter of the helicopter and the flight, that the duty had been breached and that breach had caused the deceased’s death.

A helicopter operated by a Peruvian company crashed into a mountain in Peru, killing all 12 passengers and two crew on board. One of those passengers was the deceased, who was an employee of the defendant, an independent global markets and financial advisory firm and an English limited liability partnership. The deceased had been in Peru for his work on a project. The helicopter had been chartered for the purpose of a visit to the proposed sites for the project. The deceased’s widow and children brought that claim under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934. It was alleged in the action that the defendant was in breach of its duty as employer to provide the deceased with a safe place of work, safe equipment and a safe system of working. The trial concerned liability only.

The principal liability issues were: (i) whether the scope of the defendant’s duty of care as employer extended to the charter and flight; (ii) if there was such a duty, whether the defendant had breached it; (iii) if the defendant had breached its duty whether that breach had caused the deceased’s death.

The claim would be allowed.

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Employers owed a personal, non-delegable duty to their employees to take reasonable care for their physical safety. The duty was to carry on his operations so as not to subject those employed by him to unnecessary risk. An unnecessary risk was any risk that the employer could reasonably foresee and which he could guard against by any measures, the convenience and expense of which were not entirely disproportionate to the risk involved. In many cases the employer’s duty related to the premises occupied by him and the system of work there provided. However, it might also extend to third party premises to which the employee was sent to work.

Just as the employer’s duty might extend to third party premises abroad, so it might also extend to transport to and from such a place of work (see [109], [110], [115] of the judgment).

The defendant was, on the facts of the case, under a duty to take reasonable care to see that the deceased had been reasonably safe while travelling to and from and at his place of work abroad where he had been required to go in the course of his employment. That place of work had been the project site. There were reasonably foreseeable and indeed obvious potential dangers involved in the trip.

A reasonable and responsible employer would have realised that if their employee had been to fly on a helicopter in the circumstances, there would be a real risk of danger to their employee. The personal safety of their employee would be entirely dependent on the safe operation and performance of that chartered helicopter flight. The defendant owed a duty to take reasonable care to safeguard them from the danger involved. In the instant case that required the defendant to make at least some form of inquiry into the safety of the trip and carry out some form of risk assessment.

The defendant was therefore in breach of its duty of care in doing nothing to investigate into the safety of the proposed helicopter flight. If such inquiries had been made with an appropriate risk assessment, the result would have been that it would have instructed the deceased not to go on the flight because of safety concerns. In such circumstances he would not have done so. The deceased would not have taken on the risk of the flight in the light of an instruction not to do so from his employer on safety grounds (see [134], [174], [175], [178], [191], [215] of the judgment).

The claimants’ case on liability was proved (see [217] of the judgment).

Smith v Baker 1979 SLT (Notes) 19 applied; Harris v Bright’s Asphalt Contractors Ltd [1953] 1 All ER 395 considered; Wilson v Tyneside Window Cleaning Co [1958] 2 All ER 265 considered; Smith v Austin Lifts Ltd [1959] 1 WLR 100 considered; Durnford v Western Atlas International Inc [2003] All ER (D) 94 (Mar) considered; Hopps v Mott MacDonald Ltd [2009] All ER (D) 259 (Jul) considered.

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Chapter 3 February 2015

Clinical Negligence Hogg v The Secretary of State for Health [2015] EWHC 267 (QB) Negligence – Causation. When the claimant was born, he was diagnosed with septo-optic dysplasia with structural brain abnormalities, visual defects, anterior and posterior pituitary deficiencies with resultant diabetes insipidus, adipsia, sleep apnoea and severe learning disabilities. He claimed that his condition was caused by the negligent performance of an amniocentesis on his mother when pregnant with him. The Queen’s Bench Division held that the claimant had failed to persuade the court that the condition from which her son suffered was caused by the amniocentesis.

The claimant was born at the London Hospital, Whitechapel, in 1986. He was diagnosed with septo-optic dysplasia with structural brain abnormalities, visual defects, anterior and posterior pituitary deficiencies with resultant diabetes insipidus, adipsia (an inability to perceive thirst), sleep apnoea and severe learning disabilities.

In the proceedings, he claimed that his condition had been caused by the negligent performance of an amniocentesis on his mother when pregnant with him, at the London Hospital in August 1985, such that the amniocentesis needle punctured his head and damaged his brain. The procedure was performed by Dr G and a sonographer, for whom the defendant was vicariously responsible.

The main issue was whether the claimant’s brain abnormalities were the result of the amniocentesis needle penetrating his skull. There other issue arose of whether the defendant had been negligent in the assessment of the claimant’s gestational age.

The claim would be dismissed.

On the evidence, despite the fact the defendant had been negligent in the assessment of the claimant’s gestational age at the time of the amniocentesis, the claimant had failed to persuade the court that the condition from which her son suffered had been caused by the amniocentesis at the focus of the action (see [64], [84] of the judgment).

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RTA Dursan v J Sainsbury plc [2015] EWHC 233 (QB) The case concerned a claim for damages arising out of a fatal road traffic accident by which the claimant, who was the widow of the deceased D, brought an action against the defendant company on behalf of his estate and dependants. The accident occurred in December 2011 on one of the north bound carriageways in London. As the deceased was crossing the road from west to east, an LGV, being driven by PL in the course of his employment with the defendant, collided with him causing fatal injuries. At the material time, there had been a stationary doubledecker PSV in the area of the bus stop in the inside lane, whilst the LGV had been stationary in the outside lane in the vicinity of the rear of the PSV. The collision had occurred when the deceased had alighted from the west side pavement, walked across the rear of the PSV and had started to walk across the front of the LGV. At that point the LGV was driven forward and into collision with the deceased. The prevailing traffic conditions were those of a congested stop/start variety, with queues of traffic in the north and south bound lanes, whilst the weather conditions were those of light but persistent rain. The accident occurred in the hours of darkness, although illumination had been provided by vehicular, street and shop lighting.

The issue was whether the driver of the LGV had been negligent in his driving of the vehicle. Consideration was given to the experts’ reports.

The claim would be dismissed.

It was a matter for the driver of an LGV to select the most appropriate one in the particular circumstances in which he found himself. The court was satisfied that PL had carried out the sequence of checks which he described in evidence in a conscientious and careful manner and had not seen the deceased in the course of the checks which he made in either his Class V or VI mirrors, not because of any lack of care on his part, but because the deceased was not in the relevant field of vision at the material time. When PL carried out this sequence of visual checks, there was nothing which came to his attention which alerted him to the possible presence of pedestrians in close proximity to the front of the LGV. That did not imply any lack of care in making those observations (see [33] of the judgment).

Given the circumstances which pertained that evening, the failure of the deceased to take any precautions for his own safety (see [39] of the judgment) had resulted in him being the author of the tragic incident.

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Vicarious Liability Graham v Commercial Bodyworks Ltd [2015] EWCA Civ 47 Vicarious liability – Employer and employee. An incident at the defendants’ bodywork repair shop occurred when a co-employee of the claimant, PW, used a cigarette lighter in the vicinity of the claimant, whose overalls had been sprinkled with a highly inflammable thinning agent. As a result, the overalls caught fire and caused the claimant injury. The judge found that the defendant was not vicariously liable for PW’s actions.

The Court of Appeal, Civil Division, in dismissing the claimant’s appeal, held that the real cause of the claimant’s injuries had been the conduct of PW, which could not be said to have occurred in the course of his employment.

An incident at the defendants’ bodywork repair shop occurred when a friend and co-employee of the claimant, PW, used a cigarette lighter in the vicinity of the claimant, whose overalls had been sprinkled with a highly inflammable thinning agent. As a result, the overalls caught fire and caused the claimant very considerable injury. The claimant brought proceedings against the defendant. It was not suggested that the defendant was itself negligent. Employees were permitted to decant only the approximate amount of thinner required for whatever job was being done and were then required to pour unused thinner into a waste tank. There was a sealed unit for the rags which had been used for the application of thinner. Smoking was not permitted anywhere within the workshop. Nor was there any suggestion that PW intended to cause any serious harm to the claimant. The judge found that PW had applied thinner to the claimant’s overalls and that some of that thinner came from a spray container. PW then used a cigarette lighter in the vicinity of the wet patch of the claimant’s overalls and that was the cause of the injury. However, the judge held that the defendant was not vicariously liable for PW’s actions. The claimant appealed.

The issue before the court was whether the defendant was vicariously liable for PW’s actions. The court considered Wilson v Excel UK Ltd([2010] CSIH 35) (Wilson) and Vaickuviene v Salisbury Plc([2013] IRLR 792) (Vaickuviene).

The appeal would be dismissed.

On the facts, although the defendant employers had created a risk by having required their employees to work with thinning agents, it was difficult to say that the creation of that risk had been sufficiently closely connected with PW’s highly reckless act of splashing the thinner onto the claimant’s overalls and then using a cigarette lighter in his vicinity. Further, it seemed that PW’s conduct had been similar to that 42

of the co-employees in the cases of Wilson and Vaickuviene and that the present case, like them, fell within the group of cases in which it was inappropriate to impose vicarious liability. The real cause of the claimant’s injuries had been the no doubt frolicsome, but reckless, conduct of PW, which could not be said to have occurred in the course of his employment (see [14], [15], [20], [22], [24], [25] of the judgment).

Bazley v Curry 174 DLR (4th) 45 considered; Lister v Hesley Hall Ltd [2001] All ER (D) 37 (May) considered; Dubai Aluminium Co Ltd v Salaam (Livingstone, third parties) [2002] All ER (D) 60 (Dec) considered; Wilson v Exel UK Ltd t/a Exel [2010] CSIH 35 considered; Weddall v Barchester Healthcare Ltd; Wallbank v Wallbank Fox Designs Ltd [2012] All ER (D) 01 (Feb) considered; Vaickuviene v J Sainsbury plc [2013] IRLR 792 considered.

Negligence Michael and others v Chief Constable of South Wales Police and another [2015] UKSC 2 Police – Negligence. The claimants were the family and estate of a murdered woman. The claimants had issued proceedings against two police forces in negligence and a failure to protect life in breach of art 2 of the European Convention on Human Rights.

The Court of Appeal, Civil Division had granted summary judgment on the claim in negligence and had allowed the art 2 claim to proceed.

The Supreme Court upheld that decision and confirmed that there was no exception to the ordinary application of common law principles to provide protection for victims of domestic violence and/or to extend the common law in harmony with the obligations of the police under arts 2 and 3 of the Convention. Further, the art 2 claim involved questions of fact that should properly be determined at trial.

The deceased, J, was a young mother who lived in Cardiff with her two children.

She made a 999 call on her mobile phone from her home. The signal was received at a mast across the county border in Gwent. Accordingly, an operator, M, with the second defendant Gwent Police Force took the call. J told her that her former partner, W, had come to the house and found her with someone else. W had bitten her ear really hard and taken away the other person in his car, but had said that he would return to hit J. M asked J whether she could lock the doors to keep W out. J replied that she could lock the doors, but she did not know what W would do, nor did she know whether he had a key or how he had entered her house. Later in the call, J was recorded as saying that W had said he would return to kill J. An issue arose as to

43

whether that had been audible to M. M told J that the call would be passed to the first defendant South Wales Police Force and that she should keep her phone free as they would want to call her. The call was automatically graded as requiring an immediate response. M immediately contacted the South Wales Police and passed on an abbreviated version of the call, stating that W had threatened to return to hit J, but did not refer to the threat to kill. The information was relayed to officers on mobile patrol. However, the call had been downgraded to the next priority.

Just under fifteen minutes later, a further emergency call was received from J by the Gwent Police. There was screaming, which then stopped. The call was graded immediate and officers attended at J’s house. They found that J had been stabbed to death. W was subsequently convicted of her murder. J’s family and her estate (the claimants) brought claims for damages against the two police forces (together the forces). The claim was based in negligence and a failure to protect life in breach of art 2 of the European Convention on Human Rights. The forces accepted that there had been serious failings. In the months leading to J’s murder, the South Wales Police had attended at her home on at least four occasions to deal with domestic violence issues between her and W. The forces applied to strike out the claims on the basis that, in law, they disclosed no reasonable causes of action. In the alternative, they applied for summary judgment on the basis that the claims had no real prospect of success. The judge held that there were serious issues of fact which could only be determined at a hearing of both the negligence claim and the claim under art 2 of the Convention. The forces appealed.

The Court of Appeal, Civil Division, held unanimously that there should be summary judgment in favour of the forces on the negligence claim. The majority upheld the judge’s decision that the art 2 claim should proceed to trial. The claimants appealed against the decision to award summary judgment on the negligence claim and the forces cross-appealed against the decision that the art 2 claim should proceed.

The issues for determination were, first, if the police were aware or ought reasonably to be aware of a threat to the life or physical safety of an identifiable person, or member of an identifiable small group, whether the police owed to that person a duty under the law of negligence to take reasonable care for their safety.

Alternatively, if a member of the public (A) furnished a police officer (B) with apparently credible evidence that a third party whose identity and whereabouts were known presented a specific and imminent threat to his life or physical safety, whether B owed to A a duty to take reasonable steps to assess such threat and, if appropriate, take reasonable steps to prevent it being executed.

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Secondly, on the basis of what had been said in the first 999 call, and the circumstances in which it had been made, whether the police should be held to have assumed responsibility to have taken reasonable care for J’s safety and, therefore, had owed her a duty of care in negligence.

Thirdly, whether, on the material before the court, there arguably had been a breach of art 2 of the Convention. Consideration was given to art 3 of the Convention.

The appeal would be dismissed (Lady Hale and Lord Kerr dissenting).

The cross-appeal would be dismissed.

(1)

(Lady Hale and Lord Kerr dissenting) Subject to statutory exceptions and

two well recognised types of situation in which the common law might

impose liability for a careless situation, English law did not, as a general

rule, impose liability on a defendant for injury or damage to the person

or property of a claimant caused by the conduct of a third party. Those

general principles were equally applicable where the defendant was

a public body. There would be no exception made to the ordinary

application of common law principles to provide protection for victims

of domestic violence and/or to extend the common law in harmony

with the obligations of the police under arts 2 and 3 of the Convention to

create any such new category of duty of care (see [97]-[101], [113]-[122],

[125]-[130] of the judgment).

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] 2 All ER 575 considered; Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294 considered; Maloco v Littlewoods Ltd [1987] AC 241 considered; Yuen Kun-yeu v A-G of Hong Kong [1987] 2 All ER 705 considered; Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238 considered; Davis v Radcliffe [1990] 2 All ER 536 considered; Murphy v Brentwood District Council [1990] 2 All ER 908 considered; Stovin v Wise (Norfolk County Council, third party) [1996] 3 All ER 801 considered; Gorringe v Calderdale Metropolitan Borough Council [2004] 2 All ER 326 considered; Van Colle v Chief Constable of Hertfordshire Police; Smith v Chief Constable of Sussex Police [2008] 3 All ER 977 considered; Mitchell v Glasgow City Council [2009] 3 All ER 205 considered.

(2)

(Lady Hale and Lord Kerr dissenting) The only assurance which M had

given to J had been that she would pass on the call to the South Wales

Police. She had given no promise how quickly they would respond. She

had told J that they would want to call her back and asked her to keep

her phone free, but that did not amount to advising or instructing her to

remain in her house; J’s call had been made on her mobile phone. Nor

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had M’s inquiry whether J could lock the house amounted to advising or

instructing her to remain there (see [138] of the judgment).

The claimants’ appeal would be dismissed (see [140] of the judgment).

(3)

Whether M ought to have heard J say that W was threatening to return

and kill her, and, if she could not hear clearly what J had been saying

because of distractions, whether she should have asked J to repeat what

she was saying were questions of fact which were properly matters for

investigation at a trial (see [139] of the judgment).

The forces’ cross-appeal would be dismissed (see [140], [188], [199] of the judgment).

Decision of Court of Appeal, Civil Division [2012] All ER (D) 216 (Jul) Affirmed.

Quantum Totham v King’s College Hospital NHS Foundation Trust [2015] EWHC 97 (QB) Damages – Personal injury. The proceedings concerned a claim for damages for serious brain injuries which the claimant had suffered during her delivery. The defendant NHS Trust had accepted liability for the injuries and the parties had agreed some heads of damages. The Queen’s Bench Division ruled on the remaining disputed heads of damage, including general damages for pain and suffering and loss of amenity, past gratuitous care and case management, and past professional case management.

The claimant had suffered serious brain injuries, namely a grade 2 hypoxic ischaemic injury, during her birth in 2007. By June 2008, she was showing signs of cerebral palsy.

She brought a claim against the defendant NHS Trust for damages. The defendant accepted liability for the injuries and the parties also agreed some heads of damages. The present proceedings were convened to determine the remaining disputes about damages. By the time of the present hearing, the claimant was seven years old. She was generally healthy, but lacked muscle strength and dexterity in her hands and arms, and found it hard to control the position and movement of her head. It was hard for her to sit or get around without help and she could not walk without help. As she got older, it was likely that she would need someone to be with her all of the time.

There were ten substantive issues as to damages which remained in dispute. They included:

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(i)

general damages for pain and suffering and loss of amenity, in respect

of which the court considered the applicable Judicial College (JC)

Guidelines, the uplift in Simmons v Castle([2012] All ER (D) 90 (Oct)) and

the increase in retail price index (RPI);

(ii)

past gratuitous care, in respect of which the court considered whether

there should be a discount from the agreed total of £80,000, to reflect the

fact that gratuitous care had been provided by the claimant’s parents

or whether, as the claimant submitted, the fact that her mother had given

up a highly paid job and had then gone back to working part-time in

order to care for her and co-ordinate the arrangements from her care

had meant there should be no discount; and

(iii) past professional case management, in respect of which the court

considered whether, as the defendant submitted, the claimant’s family

had not received value from the money they had paid to the company

which provided professional case managers (ILS) and that it should not

have to pay for a service, the charges for which had been grossly

unreasonable.

The court ruled:

(1)

On the evidence, and having considered the applicable JC Guidelines,

the appropriate award, taking into account the Simmons v Castle uplift

and increase in RPI was £275,000 (see [21], [22] of the judgment).

The factors relied upon by the claimant had not meant that the present

(2)

case was so unusual as to mean that there should be no discount with

respect to past gratuitous care. Further, her reliance on the highly paid

employment which her mother had given up was inconsistent with the

ceiling principle, which capped compensation at the commercial cost

of care. A 25% discount was appropriate in the present case (see [27], [28]

of the judgment).

The claimant’s mother had acted reasonably in appointing ILS in the first

(3)

place and in having continued to employ and pay them until they had

walked off the job. Having taken into account all the sensible steps

which she had taken in having appointed ILS and in trying to manage

them and in checking with her professional and experienced deputy

whether their charges had been out of line, that part of the claim would

be allowed in full (see [32]-[40] of the judgment).

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Clinical Negligence Welch v Waterworth (Executor of the estate of Marjorie Waterworth, deceased) [2015] EWCA Civ 11 Medical practitioner – Negligence. Judgment had been entered for the claimant against the defendant surgeon for damages for negligence on the part of the defendant in a surgical procedure performed by him upon the claimant’s late wife, following which, she had suffered kidney failure. The Court of Appeal, Civil Division, in dismissing the defendant’s appeal, held, inter alia, that the judge had been entitled to have fastened upon those aspects of the evidence which he had found to have been reliable pointers to what had actually occurred during the procedure, without trawling through every issue, side issue or speculation that arose on the evidence or in argument.

The proceedings concerned a surgical procedure performed by the defendant vascular surgeon upon the claimant’s late wife, M. The operation was a ‘re-do bifemoral bypass graft’, the object of which was to replace an arterial bypass, placed in a previous operation, which had become clogged in the interim period.

Almost immediately after the operation, M suffered acute and irreversible failure of both kidneys, requiring her to have regular dialysis from then until her death three and a half years later (which was from causes unrelated to the procedure).

The claimant brought proceedings against the defendant. The experts were agreed that the cause of renal failure was most likely to have been precipitated by intra-operative atheroembolisation. The question at trial, therefore, was how the damage to the renal arteries had occurred during the course of the operation. It was contended by the claimant, and found by the judge, that the damage had been caused by a ‘sequencing error’ in the procedure, in that the defendant had clamped the aorta closed, across the material causing the blockage, before the aorta was cut and before the blockage was removed. Judgment was entered for the claimant against the defendant for £155,000 as damages for negligence on the part of the defendant. The defendant appealed.

He submitted, first, that the judge had fallen into error in his assessment of the evidence, in having been over persuaded by his operation notes (for the contents of the notes, see [17], [18] of the judgment) and by having failed to address certain salient features of the case which had pointed to a different result. In particular, he contended, the judge’s error had been founded upon his failure to follow the consequences of his own finding that the defendant always honestly believed that he had carried out the operative steps in the correct sequence and, further, that six identified ‘alarm bells’ would have alerted the defendant to the alleged error if he had made it. Second, the judge had failed to give adequate reasons for his findings.

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The appeal would be dismissed.

(1)

The defendant’s oblivion as to what had gone on in the operation and

thereafter had amply justified a finding that his operation notes provided

very significant evidence of the clamping sequence that had actually

occurred. There had been entirely adequate evidence for a finding that

the defendant would not have been susceptible to the alleged alarm

bells and the judge had been entitled to have fastened upon those

aspects of the evidence which he had found to have been reliable

pointers to what had actually occurred, without trawling through

every issue, side issue or speculation that arose on the evidence or in

argument. Accordingly, the first ground of appeal would be rejected (see

[31], [32], [46], [47] of the judgment).

In the circumstances, the judge had not been required to have

(2)

addressed, individually, each and every one of the alarm bell points

which had been raised in the defendant’s closing submissions at trial. It

was not accepted that the judge’s judgment did not inform the

defendant why he had lost. Accordingly, the second ground of the

appeal would also be rejected (see [34], [35], [46], [47] of the judgment).

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Chapter 4 March 2015

Employers Liability West Sussex County Council v Fuller [2015] All ER (D) 140 (Mar)[2015] EWCA Civ 189 The claimant was employed part-time by the defendant local authority as an administrative assistant. The claimant was asked to deliver post to various areas of the building in which she worked. Whilst engaged in that task, the claimant fell forward on a staircase and injured her wrist. The claimant brought proceedings against the defendant. She said that, as she was going up the stairs, one foot did not lift off as she was anticipating, because of the presence of a sticky patch. Her momentum in going up the stairs carried her forward and she fell, was unable to grab a handrail because of the bulk of the post she was carrying, had to put out her right hand to break her fall, and was injured. The judge did not accept the claimant’s account of the accident. The judge found that she had simply misjudged her footing.

However, he was persuaded that the law compelled him to find for the claimant, and that he was ‘prohibited’ from making any finding of contributory negligence.

That was, he was reluctantly persuaded, a result of the circumstance that the defendant was in breach of its statutory obligation, set out in reg 3 of the Management of Health and Safety at Work Regulations 1999, SI 1999/3242, and reg 4 of the Manual Handling Operations Regulations 1992, SI 1992/2793 (the 1992 Regulations), to make a risk assessment of the post distribution operation, and to take appropriate steps to reduce the risk of injury to the lowest level reasonably practicable. The defendant appealed.

The claimant contended that it was for the defendant to prove that its breach of reg 4 of the 1992 Regulations had not caused the accident, and that the only way that that could be done was by showing that it had taken appropriate steps to reduce, to the lowest level practicable, the risk of injury to the claimant arising out of the post distribution operation.

The appeal would be allowed.

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The authorities demonstrated that the judge had had no need to have acceded to the claimant’s counter-intuitive submission. Liability under reg 4 of the 1992 Regulations was only established on proof of a causal breach of duty. The defendant had been arguably in breach of duty in having failed to carry out a risk assessment in relation to the task which it had asked the claimant to perform. However, on the facts found by the judge, the accident which had befallen the claimant had not fallen within the ambit of the risk which the defendant had arguably been required to assess. The claimant had simply misjudged her footing when climbing a staircase whilst she had happened to be carrying one or more items of post. Her accident had been wholly causally unconnected with the circumstance that she had, at the time, been carrying one or more items of post. The circumstance that the claimant had been carrying post might perhaps be described as the occasion for her injury, but it had not been a cause of it (see [15], [23], [25], [26] of the judgment).

Milroy (a protected party by Mrs Sharon Maria Milroy, his litigation friend) v British Telecommunications plc[2015] All ER (D) 84 (Mar) Regulation 9(1) of the Provision and Use of Work Equipment Regulations 1998, SI2306/98, so far as material, provides: ‘ Every employer shall ensure that all persons who use work equipment have received adequate training for purposes of health and safety, including training in the methods which may be adopted when using the work equipment, any risks which such use may entail and precautions to be taken’.

Regulation 4(3) of the Electricity at Work Regulations 1989, SI 635/1989, so far as material provides: ‘Every work activity, including operation, use and maintenance of a system and work near a system, shall be carried out in such a manner as not to give rise, so far as is reasonably practicable, to danger.’

The claimant was aged 55. In 1989, he began working for the defendant, BT, as an engineer. In 2003, he attended a one day BT course in order to qualify as a mobile elevated work platform (MEWP) operator. He was trained to operate a Type 5 MEWP. That was a modified Ford Transit van with a boom rising from the roof of the van. The working platform was a bucket at the end of the boom capable of accommodating two people. A MEWP would be used by BT employees to gain access to telephone lines and other relevant installations at high level. A new system was introduced in 2007. In August 2009, the claimant responded to a request for the attendance of a MEWP on a country lane near Catsfield, East Sussex. An engineer named KB was on site there and he needed to gain access to the top of a carrier pole. Running alongside the lane were overhead high voltage power lines (HVPL). When the claimant was operating the MEWP in its raised position, he came into contact with the current running through the HVPL either because his head touched the power

51

line or because there was arcing of current from the power line. As a result he suffered serious injury.

The claimant brought a claim against BT. He alleged that BT failed to provide a safe system of work such that they were in breach of their common law duty and in breach of statutory duties imposed by the Electricity at Work Regulations 1989 and the Provision and Use of Work Equipment Regulations 1998, SI 635/1989. He also alleged that they were vicariously liable for the breach of duty of his fellow employee, KB. BT denied any liability to the claimant. It contended that it had in place a safe and sufficient system of work so as to fulfil its common law and statutory duties.

Alternatively, it contended that the claimant had been negligent himself to such an extent as to extinguish their liability or, at the very least, sufficient to reduce very substantially the contribution of any breach on the part of BT. The main issues were:

(i)

whether BT were in breach of reg 9(1) of the 1998 regulations; (ii) whether

that breach was a cause of the accident;

(ii)

whether BT was liable for that breach of statutory duty;

(iii) whether the claimant had been contributory negligent.

The claim would be allowed.

On the evidence, the claimant was known as a good and careful MEWP operator.

The court was satisfied that, had his training been adequate, he would have followed the system as introduced in 2007. In that event he would not have suffered injury because the system of work would not have allowed him to operate the MEWP where he had done. It followed that BT’s breach of statutory duty in respect of reg 9(1) was a significant cause of the accident and therefore the system of work had given rise to danger. Because of the failure to provide the claimant with proper training or other satisfactory notification of the appropriate system, BT had created and were liable for this breach of statutory duty. MB had not been a fully trained MEWP operator. The use of the MEWP should not have taken place. A second fully trained MEWP operator was needed to act as GSP. Further, on the evidence, the court was satisfied that KB was in breach of his duty of care to the claimant by not considering a method of working which had not involved the use of a MEWP close to HVPL when such a method could have been adopted. KB was acting in the course of his employment. BT was vicariously liable for his breaches of duty. Further, the contribution of the claimant to the accident and to his consequent injury was one third (see [22], [29], [30], [34], [39] of the judgment).

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There had to be judgment for the claimant on the issue of liability, subject to a reduction of one third to allow for his contribution (see [40] of the judgment).

Protection from Harrassment Levi and another v Bates and others[2015] All ER (D) 139 (Mar)[2015] EWCA Civ 206, [2015] All ER (D) 139 (Mar) The first claimant businessman had been a member of a consortium which had taken over the Leeds United Football Club. The second claimant was his wife. The first defendant businessman had promoted the second defendant company, which had later taken over the football club. Its parent company beneficially owned the third defendant local radio station, which acted as the club’s own radio station. At the material time, the first defendant had de facto control of the football club and the radio station. That position enabled him to write a regular column in the match day programme for home games and to direct announcements on the radio station.

The business transactions between the first claimant and first defendant led to the first defendant harbouring serious grievances against the first claimant. He vented his ire in his column in the match day programmes. The claimants issued proceedings against the defendants, initially, and successfully, for libel, but subsequently for harassment under s 3(1) of the Protection from Harassment Act 1997.

Although the conduct had been aimed at the first claimant, the second claimant also alleged harassment. The match programmes had been published by the football club to a large readership of the club’s supporters. The combined effect of numerous articles was that the first defendant, as the chairman of the club, had been inviting its supporters to take his side in a business dispute between him and the first claimant, by confronting the first claimant with questions about his alleged dishonourable conduct, both at his home (the claimants’ home address having been published in the programme) and by telephone (the claimants’ home telephone number having also been published) when the first defendant had been aware that the claimants shared the home and the telephone number. The judge accepted the second claimant’s evidence that, apart from being angry and upset about the articles written about her husband, she had been particularly concerned about the publication of their address and telephone number and that the police had advised various precautionary measures, including wearing personal radio activated alarms and not leaving the house unless they had to. The judge found that the statutory tort of harassment was founded in respect of the first claimant but, while the second claimant had suffered alarm and distress, the conduct had not, save on one occasion, been aimed at her and so the tort had not been made 53

out. In particular, the publication of the address and telephone number had not been targeted at the second claimant, but had been an invitation to the club’s supporters to contact and confront the first claimant. While the second claimant would have been affected by such behaviour if it happened, it had not been the first defendant’s intention that she be harassed by it. The first defendant’s evidence that he had given no consideration to the second claimant’s feelings supported his argument that he had not targeted her. Further, when viewed objectively, the publications could not be construed as having targeted the second claimant. The claimants appealed.

The issue for determination was whether an individual, who had not been the target of a course of harassment could, in any event, establish such a claim if they could demonstrate that they had been a victim of that conduct. The court considered ss 1 and 7 of the Act. The appeal would be allowed.

The ability to bring a harassment claim extended beyond the targeted individual only to those other persons who were foreseeably, and directly, harmed by the course of targeted conduct of which complaint was made, to the extent that they could properly be described as victims of it. It was not a requirement of the statutory tort of harassment that the claimant be the, or even a, target of the perpetrator’s conduct. The value of targeting as a concept was that it excluded behaviour which, however alarming or distressing it might be, was not aimed at directed or anyone.

Provided that it was targeted at someone, the conduct complained of need not be targeted at the claimant, if he was foreseeably likely to be directly alarmed or distressed by it. The only express requirement, under s 3(1) of the Act, was that the claimant be a victim of the relevant course of conduct. Alarm or distress suffered out of nothing more than sympathy for the targeted victim of harassment was insufficient to found a claim under the Act. The claimant had to be harassed by it, in the sense that the conduct complained of had to have some direct effect upon the claimant (in terms of causing foreseeable harm, usually, but not limited to, alarm and distress).

That was because s 3(1) of the Act conferred a right to bring a civil claim upon persons who were or might be the victim of the course of conduct in question, and because s 1(1) required that course of conduct to amount to harassment of another.

That the harm to the claimant had to be foreseeable arose from s 1(1)(b) of the Act because of the requirement that the perpetrator knew or ought to have known that the relevant course of conduct amounted to harassment (see [26]-[34], [52], [55] of the judgment).

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The judge had been wrong to have excluded the second claimant from a claim based upon the publication of the claimants’ home address and telephone number. Those two articles in the match programmes had constituted harassment of the second claimant not simply because they had defamed her husband, but because they had invited thousands of club supporters to intervene in a hostile manner, at her home, about a business dispute between her husband and the first defendant. Incitement of others to weigh in for the furtherance of a grudge about a private business dispute had nothing whatsoever to do with free speech, as the judge rightly observed. On the facts, the two articles together had amounted to a sufficient course of conduct. They had each pursued the same objective of incitement, focussed upon the claimants’ family home. They were closely connected in terms of time and were, in accordance with s 7(3)(a) of the Act, identified, at least potentially, as sufficient for that purpose. Accordingly, a cause of action for the statutory tort of harassment had been established in the second claimant’s favour (see [35]-[37], [40], [52], [56], [57] of the judgment).

The second claimant was entitled, pursuant to s 3(2) of the Act, to an award of damages of £6,000 in respect of the anxiety caused to her by the harassment (see [42], [53], [57] of the judgment).

Clinical Negligence Montgomery v Lanarkshire Health Board[2015] All ER (D) 113 (Mar) [2015] UKSC 11, [2015] All ER (D) 113 (Mar) The claimant was of small stature and suffered from insulin dependent diabetes mellitus. She was pregnant, and, owing to her diabetes, her pregnancy was regarded as being of high risk and requiring intensive monitoring. As a result of complications during the delivery, shoulder dystocia occurred, being the inability of the baby’s shoulders to pass through the mother’s pelvis. The consultant obstetrician and gynaecologist responsible for the claimant’s care, L, did not inform the claimant about the risks of shoulder dystocia and the possibility of having an elective caesarian section rather than a vaginal birth. When the baby was eventually delivered, his umbilical cord was found to have been completely or partially occluded, depriving him of oxygen. He was born with cerebral palsy and paralysis of the arm. the claimant brought proceedings for negligence against the defendant health authority. The Court of Session dismissed the claim in a decision based on the approach laid down by the majority in the case of Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital ([1985] 1 All ER 643 ) (Sidaway). It further held that, had the claimant been given advice as to the risk of 55

serious harm to the baby as a consequence of shoulder dystocia, she would have not elected to have the baby delivered via caesarean section anyway, and so it would have made no difference. That decision was upheld by the Inner House, and the claimant appealed to the Supreme Court.

The court considered, first, whether the approach in Sidaway, particularly the significance it attached to a patient’s failure to question a doctor, was still correct.

Secondly, whether it had been incumbent on L to advise the claimant of the risk of shoulder dystocia if she were to have her baby by vaginal delivery, and to discuss with her the alternative of delivery by caesarian section. Thirdly, whether, had she been fully informed of the risk of shoulder dystocia, the potential implications and the options open to her, the claimant would have elected to have the baby delivered via caesarian section.

The appeal would be allowed.

(1)

The significance attached to a patient’s failure to question the doctor

in Sidaway was profoundly unsatisfactory. Since Sidaway, the paradigm

of the doctor-patient relationship implicit in that case had ceased

to reflect the reality and complexity of the way that healthcare services

were provided, or the way in which the providers and recipients of such

services viewed their relationship. Particularly significant was that patients

were widely regarded as persons holding rights, rather than passive

recipients of the care of the medical profession. It was also relevant that

it had become far easier, and more common, for members of the public

to obtain information about symptoms, investigations, treatment options,

risks and side-effects through media. It would be a mistake to view

patients as uninformed, incapable of understanding medical matters,

or wholly dependent on a flow of information from doctors. To make the

idea that patients were medically uninformed and incapable of

understanding medical matters into the default assumption on which

the law was to be based was now manifestly untenable. Those

developments had been reflected in professional practice and the case

law. It pointed towards an approach to the law that, instead of treating

patients as placing themselves in the hands of their doctors (and being

prone to sue their doctors in the event of a disappointing outcome)

treated them so far as possible as adults who were capable of

understanding that medical treatment was uncertain and could involve

risks, accepting responsibility for the taking of risks affecting their own lives,

and living with the consequences of their choices (see [58], [75]-[77], [80],

[81], [117] of the judgment).

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(2)

An adult person of sound mind was entitled to decide which, if any, of

the available forms of treatment to undergo, and her consent had to

be obtained before treatment interfering with her bodily integrity

was undertaken. The doctor was therefore under a duty to take

reasonable care to ensure that the patient was aware of any material

risks involved in any recommended treatment, and of any reasonable

alternative or variant treatments. The test of materiality was whether,

in the circumstances of the particular case, a reasonable person in the

patient’s position would be likely to attach significance to the risk, or the

doctor was or ought reasonably to be aware that the particular patient

would be likely to attach significance to it. The doctor was, however,

entitled to withhold from the patient information as to a risk if he

reasonably considered that its disclosure would be seriously detrimental

to the patient’s health. From that principle, three points arose. First, the

assessment of whether a risk was material could not be reduced to

percentages. Secondly, the doctor’s role would only be performed if

the information provided was comprehensible. Thirdly, it was important

that the therapeutic exception was not abused (see [87]-[92], [117] of the

judgment).

Approaching the present case on that basis, there could be no doubt that it had been incumbent on L to advise the claimant of the risk of shoulder dystocia if she were to have her baby by vaginal delivery and to discuss with her the alternative of delivery by caesarian section (see [94] of the judgment).

(3)

The consequence of the Supreme Court’s holding that there had been

a duty to advise the claimant of the risk of shoulder dystocia, and to

discuss with her the potential implications and the options open to her,

was that the issue of causation had to be considered on a different

footing from that on which it had beens approached by the lower

courts. The question should properly have been addressed as to the

claimant’s likely reaction if she had been told of the risk of shoulder

dystocia. Approaching the issue of causation in that way, the evidence

pointed in one direction. The only conclusion that could be reasonably

reached was that, had she been fully informed of the risk of shoulder

dystocia, the possible consequences, and the alternative of an elective

caesarian section, the claimant would probably have elected to be

delivered of the baby by caesarian section (see [103], [104], [117] of the

judgment)

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Sibaweih v Bedford [2015] All ER (D) 51 (Mar)[2015] EWHC 432 (QB) The claimant, then aged 49, slipped on a wet pavement and fell awkwardly. Her left leg was bent underneath her, the force of her body was taken on the front aspect of the knee and the knee was twisted in the process. She suffered, among other things, a fracture to the head of her left fibula. She had a long, complicated and unhappy medical history. She brought a claim for damages in negligence against the defendant, who was her General Practitioner, for negligent examination of the knee on 16 February 2009 namely a failure to examine her fracture properly and in particular to palpate the area of the head of the fibula. It was said that there were two consequences flowing from the breach of duty and consequent delay in diagnosing the fracture. The first was increased knee pain and loss of mobility and the second was low back pain arising out of the fact that the claimant had to use a stick for walking.

All components of the claim were in issue namely breach of duty, causation and damages.

The claim would be allowed.

On the evidence, the defendant’s failure to examine the claimant’s fracture properly and in particular to palpate the area of the head of the fibula had fallen below the standard of care reasonably required of a reasonably competent GP in the circumstances. The claimant accepted that her left knee was not productive of symptoms that it ceased to be so after about six months. The court was however satisfied that she had not exaggerated the high level of pain it caused, especially for the first 3 or 4 months. In relation to the back pain, on the evidence, had there been a correct diagnosis on 16 February she would have been referred to hospital and X-rayed, the fracture would have been detected, it would have been immobilised with a splint and she would have been given crutches for her mobility. Splinting and the prescription of crutches would have been an appropriate part of her treatment.

The additional pain burden from the unsplinted fibula had not added to her immobility and thus use of a stick, both in terms of intensity and duration and should be regarded as a significant cause of what flowed from it. The back pain caused by the abnormal gait she adopted, protecting the painful knee and throwing undue weight on her right side, was different in kind from the generalised aches and pains she had suffered over many years. There were therefore two concurrent causes of back pain from July 2009 for about the next 18 months. However over a period of about 18 months to 2 years after the consultation the claimant was suffering a degree of back pain referable to the defendant’s negligence, additional to albeit overshadowed by the acute disc related episode. (see [33], [42], [43], [44], [45] of the judgment).

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Considering the JC Guidelines 12th Edition the total damages for pain suffering and loss of amenity would be assessed at £6,000 (see [50], [51] of the judgment).

RTA Delaney v Secretary of State for Transport [2015] EWCA Civ 172 Lord Justice Richards, Lord Justice Kitchin and Lord Justice The claimant was the passenger in a car driven by P and was seriously injured in an accident caused by P’s negligence. P’s insurer obtained an order that it was entitled to avoid the policy. The situation, therefore, fell within the scope of the Uninsured Drivers’ Agreement 1999, made between the Secretary of State and the Motor Insurers’ Bureau (the MIB). The insurer successfully invoked cl 6.1(e)(iii) of the agreement to exclude liability, on the ground that the claimant knew, or ought to have known, that the car was being used in the course or furtherance of crime, namely, to transport cannabis for the purpose of drug-dealing. The claim failed. The Court of Appeal, Civil Division, dismissed the claimant’s appeal on the cl 6(1)(e)(iii) issue (see[2011] All ER (D) 201 (Dec)).

The claimant subsequently brought a claim against the defendant Secretary of State, contending that: (i) the exclusion in cl 6.1(e)(iii) of the agreement was incompatible with European Union directives and the United Kingdom was, thereby, in breach of EU law; and (ii) the breach was sufficiently serious to give rise to liability under Francovich v Italy([1992] IRLR 84). The EU law referred to included the Second Council Directive (EEC) 84/5 (on the approximation of the laws of the member states relating to insurance against civil liability in respect of the use of motor vehicles) (the Second Directive), in particular, art 1(4). Council Directive (EEC) 72/166 (on the approximation of the laws of the member states relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability) and the Third Council Directive (EEC) 90/232 (on the approximation of the laws of the member states relating to insurance against civil liability in respect of the use of motor vehicles) also had some relevancy. The judge found in the claimant’s favour in both respects. Having considered case law from the Court of Justice of the European Union (the CJEU), the judge concluded that the exclusions expressly set out in art 1(4) of the Second Directive were exhaustive and that the Secretary of State was guilty of a serious breach of EU law, in circumstances where he did not have a wide discretion. The Secretary of State appealed.

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First, as to whether cl 6.1(e)(iii) of the agreement was incompatible with the directives, the Secretary of State submitted, inter alia, that: (i) nothing in the text of the Second Directive provided that the exclusions set out in art 1(4) of the Second Directive were exhaustive;

(ii) none of the case law supported the proposition that the exclusions were

exhaustive; and

(iii) the case law showed that a national body, such as the MIB, was not

required to provide a guarantee scheme and that further exclusions were

permissible. The court considered Csonka v Magyar Allam([2005] All ER (D)

375 (Jun)) (Csonka).

Second, as to the seriousness of the breach, the Secretary of State submitted that the judge had erred in a number of respects and would have reached a different conclusion but for those errors, and the court should find, in any event, that the breach had not been sufficiently serious to give rise to liability.

The appeal would be dismissed.

(1)

On the natural reading of art 1(4) of the Second Directive, the only

permitted exclusions from the obligation laid down were those set out

expressly in the article itself. There was nothing in the text of the article to

suggest that other exclusions were permitted. To allow member states to

introduce exclusions additional to those specified would clearly

undermine the aim of protecting victims. The alleviation of the financial

burden on the body provided for by art 1(4) of the Second Directive could

not sensibly be treated as a conflicting aim that was capable of being

weighed against the aim of protection of victims so as to justify exclusions

additional to those listed. Further, art 1(4) did not require the national body

to provide a guarantee scheme. Csonka showed that the obligation

of that body to pay compensation was expressly limited by the terms

of art 1(4) of the Second Directive to damage or injury ‘caused by an

unidentified vehicle or a vehicle for which the insurance obligation

provided for in paragraph 1 has not been satisfied’. In those cases,

however, the payment obligation was subject only to the exclusions and

limitations specified in art 1(4) of the Second Directive (see [33], [67], [68]

of the judgment).

Therefore, as to the first issue, the Secretary of State’s submissions would be rejected.

The judge’s reading of the directives had been correct and it was strongly supported by the case law. The judge had been right to have found that cl 6.1(e)(iii) of the

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agreement was incompatible with art 1(4) of the Second Directive and that the UK was, thereby, in breach of its obligations under EU law (see [33], [34], [67], [68] of the judgment).

Ruiz Bernáldez, Criminal proceedings against: C-129/94 [1996] All ER (EC) 741 considered; Candolin v Vahinkovakuutusosakeyhtio Pohjola: C-537/03 [2005] All ER (D) 375 (Jun) considered; Farrell v Whitty: C-356/05 [2007] All ER (D) 140 (Apr) considered; Csonka v Magyar Allam: T-409/11 [2013] All ER (D) 243 (Jul) considered.

(2)

The Secretary of State’s submission that the judge’s conclusion had been

flawed by material errors in his analysis was rejected. The judge had been

correct to have treated the case as one where the member state had

had little or no relevant discretion. True it was that the Second Directive

had given member states a legislative choice as to the means by which

they fulfilled the obligation to set up or authorise the body provided for

by art 1(4) of the Second Directive, but the scope of that body’s

obligation to pay compensation, including the permitted exclusions, had

been clearly defined by art 1(4) itself and there had been no discretion to

adopt additional exclusions. The judge had also adopted the correct

approach to the judgments of the CJEU. In any event, the conclusion that

the judge had reached had been correct for the reasons he had given

(see [54], [56], [60], [64], [67], [68] of the judgment).

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Chapter 5 April 2015

Clinical Negligence Contributory Negligence Spencer v Hillingdon Hospital NHS Trust [2015] All ER (D) 172 (Apr) In late 2009, the claimant began to suffer symptoms of pain in his right groin. His GP suspected a right inguinal hernia and the claimant was referred to the hospital where he was seen for a pre-operative assessment in the surgical outpatients department by SC a locum General surgeon. SC diagnosed that as well as suffering from a hernia on the right side, the claimant was also suffering from a hernia on the left side. It was proposed that bilateral repairs be performed upon both hernias by the use of a laparoscope so as to avoid an open wound operation the claimant was told at the hospital that in its course, the operation might have to be converted from a laparoscopic to an open procedure. The claimant signed a form of consent for the operation which warned him of the certain risks. No mention was made that he might suffer a deep vein thrombosis or pulmonary embolism as a consequence of the proposed surgery and the immobility that it would cause. He was not given any information as to the likely signs and symptoms that he might suffer in the event of the development of such conditions. Before the operation was performed the claimant had pneumatic boots placed on his legs. These were a device that was intended to improve a patient’s blood circulation so as to reduce the risk of a patient suffering from deep vein thrombosis. Following the procedure, the claimant rang the hospital to report that he was feeling unwell he had problems with his calves at that time but did not think to mention it. His evidence was that he began to suffer aching calf muscles from the morning of 4 February 2010. He put that down to his lack of activity over the preceding days. He said that it did not cross his mind that these symptoms were to do with his recent surgery. Later that day the claimant was admitted to the hospital via the Accident and Emergency department suffering from severe shortness of breath. It was discovered that he was suffering from bilateral pulmonary emboli originating from the main right and left pulmonary arteries. He was treated appropriately with blood thinning medication and his condition improved so that he was able to be discharged home with medication on 27 April 2010.

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The claimant claimed damages for personal injuries and consequential loss arising from the alleged negligence of the staff of the Hillingdon Hospital. It was agreed that the defendant the responsible National Health Service Trust was vicariously liable for any negligent care given to the claimant at the hospital.

Breach of duty and causation were disputed. Quantum of damages, subject to liability, was agreed at the sum of £17,500 subject to the court’s determination of the issue of contributory negligence raised by the defendant against the claimant. The defendant accepted that if the claimant had gone to see his GP in February 2010, he would have been referred to hospital and received treatment that would have prevented the two acute episodes of pulmonary embolism that he suffered.

The principal issue for the court to determine was as to the claimant’s pleaded case that before his discharge he should have been provided with verbal and written information as to:

a)

The signs and symptoms of deep vein thrombosis and pulmonary

embolism including:

(i)

Pain and swelling in his leg;

(ii)

Hotness or discolouration of the skin on his leg, other than bruising

around the operation site;

(iii) Numb or tingling feet;

(iv) The appearance of larger than normal or more noticeable veins

near the surface of his legs;

(v)

Shortness of breath;

(vi) Pain in his chest, back or ribs which gets worse when breathing in

deeply; and/or

(vii) Coughing up blood; and

The importance of seeking medical help and who to contact if deep

b)

vein thrombosis, pulmonary embolism or another adverse event was

suspected. Consideration was given to Montgomery v Lanarkshire Health

Board [2015] All ER (D) 113 (Mar).

The claim would be allowed.

In the light of the Montgomery decision the test that the court should apply was to be the Bolam test with the added gloss that the court should pay regard to what the ordinary sensible patient would expect to have been told. Montgomery was

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clearly a decision which demonstrated a new development in the law as it related to the law on informed consent and strictly the ratio decidendi of the decision was confined to cases involving the adequacy or otherwise of information given to a patient upon which they were to decide whether or not to undergo a particular type of treatment.

However, in so far as the case emphasised the need for a court to take into account a patient’s as well as their doctor’s point of view as to the significance of information for a patient it was relevant to a consideration of the facts of the instant case. The test the court had to consider was would the ordinary sensible patient be justifiably aggrieved not to have been given the information at the heart of this case when fully appraised of the significance of it (see [68] [32] of the judgment).

The court was satisfied that the claimant had not and could not reasonably have foreseen that by not seeking medical attention for his calf pain he would suffer deep vein thrombosis and a pulmonary embolism; matters that should have been in the mind of the staff of the hospital and communicated to the claimant. The defendant’s contention that the claimant was himself negligent and had therefore in part contributed to his damage had to be rejected. It followed from the foregoing that there had to be judgment for the claimant for the total agreed sum of £17,500 (see [83], [85] of the judgment).

CICA-Quantum LHS (by his Litigation Friends and Deputies, JBO and SJB) v First Tier Tribunal (Criminal Injuries Compensation) [2015] All ER (D) 153 (Apr)[2015] EWHC 1077 (Admin), In July 1992, the claimant suffered injuries as a result of the gross negligence, amounting to criminal conduct, of his mother in having left him unsupervised in the presence of an accessible bottle of methadone. In consequence, he suffered a severe brain injury, which had rendered him significantly disabled in terms of his physical, neurological and neuropsychiatric condition. In March 1993, an application was made to the interested party, the Criminal Injuries Compensation Authority, on the claimant’s behalf for compensation for criminal injury. In January 1997, he was held eligible and, in March 2012, there was a hearing before the defendant Firsttier Tribunal (Criminal Injuries Compensation) (the FTT). Shortly before the hearing date, the parties agreed the quantum of the claim, subject only to the appropriate discount rate for future losses.

The FTT subsequently concluded that the correct interpretation of ‘compensation will be assessed in accordance with common law damages’ in para 12 of the Criminal

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Injuries Compensation Scheme (the Scheme) was that it should seek to follow the general principles of compensation used by courts to quantify pecuniary and nonpecuniary damages so as to provide broad equivalence to, rather than identify with quantification of, damages recoverable in court claims for personal injuries.

Given that approach, it was inevitable that it should conclude that it was both necessary and appropriate that it should apply the discount rate determined by the Lord Chancellor under the Damages Act 1996, namely 2.5%.

The claimant sought judicial review of that decision.

The issues for determination were:

(i)

the correct interpretation of the phrase ‘compensation will be assessed in

accordance with common law damages’ in para 12 of the Scheme;

whether the FTT was bound or entitled to take into account the discount

(ii)

rate determined by the Lord Chancellor under s 1(1) of the Act; and

(iii) whether it was appropriate for the FTT to take a different discount rate,

under s 1(2) of the Act.

The claimant’s main argument was that, unless the Scheme provided otherwise, it was the common law to which the decision-maker had to turn in assessing claims for compensation. It alternatively contended that the FTT should have capitalised a periodical payments order which would hypothetically have been made in a civil court so as to achieve a lump sum, such that the relevant figure provided the true comparator.

The application would be dismissed.

The objective of the Scheme was nothing more elaborate than to achieve a similar level of financial outcome for the victim of a crime of violence as compared to the victim of a tortfeasor with a civil claim. That was what was meant by the phrase ‘in accordance with common law damages’ in the context of a provision which laid down the basis of assessment. Thus construed, the only means by which that outcome might be attained was by applying the Lord Chancellor’s rate, because that was the rate systematically applied by the civil courts. The application of common law principles stricto sensu was not the basis of assessment laid down in the Scheme.

Further, it was not appropriate to capitalise the notional periodical payments order which would have been awarded in a civil court and carry out the comparative exercise on such a footing. Not merely was that wholly strained and artificial, it was

65

met by the obvious objection that there was no provision for periodical payments orders under the scheme. Furthermore, the approach at common law had never been to capitalise periodical payments orders so as to obtain a lump sum.

Periodical payments orders and lump sums were calculated in very different ways.

The most sensible option was that the Scheme meant that the discount rate should be whatever the rate happened to be in the civil courts at the time of assessment.

It was not specified in the terms of para 12 of the Scheme, but it emerged from the true construction of the wording which had, in fact, been deployed (see [50]-[52], [56] of the judgment).

As the basis of assessment of common law damages required the application of the methodology a civil court would adopt to a comparable claim, the FTT had rejected the claimant’s arguments for substantially the right reasons (see [57], [59] of the judgment).

RTA- MIB Moreno v Motor Insurers’ Bureau [2015] All ER (D) 116 (Apr) [2015] EWHC 1002 (QB), In 2011, the claimant, who was then aged 25, and who lived in England and Wales, was on holiday in Greece. She suffered serious injury when she was hit by an uninsured driver, driving a Greek registered car. The claimant made a claim to the defendant Motor Insurers Bureau (MIB) under reg 13(2) of the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body Regulations) 2003, SI 2003/37 (The 2003 Regulations). In the defence, it was admitted that the driver was liable under the law of Greece for the accident and that the measure of compensation payable should be assessed in accordance with the law of Greece.

The claimant sought assessment of damages under the laws of England and Wales.

In the Court of Appeal in Jacobs v MIB[2011] All ER (D) 256 (Nov) (Jacobs), it was held that in a reg 13 claim (the case of a person from England and Wales suffering injury in another European state at the hands of a culpable but uninsured or unidentified driver, but claiming in England and Wales), the law by which the assessment of compensation was to be made was that of England and Wales.

The effect of the coming into force of Regulation (EC) 864/2007 (of the European Parliament and Council on the law applicable to non-contractual obligations) (Rome II) on the issue, was assessed. What Rome II meant was that no claimant making a claim against a tortfeasor, or the insurer of a tortfeasor, could now expect that any law would apply other than the law of the state where the damage

66

occurred as determined by art 4, irrespective of any consequential losses, that meant that the law of the state where the accident occurred which caused the injuries, unless one of the exceptions in art 4.2 or 4.3 applied.

It was held in Jacobs that the law applying to the existence of tortious liability had, since Rome II, been the law of the country where the injury was caused, but that the law by which the court made the assessment of compensation under the 2003 Regulations remained the law of England and Wales. That approach was endorsed in Bloy and Ireson v MIB[2014] All ER (D) 344 (Nov).

The main issue was whether the scope of the MIB’s liability to the claimant was to be determined in accordance with the law of England or the law of Greece.

That gave rise to the issues of:

(i)

whether reg 13 of the 2003 regulations stated that the assessment of

claims made under it had to be assessed according to the law applying in

England and Wales;

whether the effect of Rome II was such that in a case falling within the

(ii)

2003 Regulations, the court had to now assess compensation in

accordance with the law where the accident happened (lex loci delicti)

and not that of England and Wales (lex fori).

The MIB argued that Jacobs had been wrongly decided and that since Rome II, reg 13 of the 2003 Regulations could not be applied so as to provide for a level of compensation different from that obtainable in the country where the accident occurred. It further submitted that given the fundamental change in the landscape, what was required was the interpretation of the 2003 Regulations so that Rome II was given effect.

The court ruled: The starting point was to consider the effect of reg 13 of the 2003 Regulations before Rome II came into effect, and then to consider whether Rome II had made any difference. The court was bound to follow Jacobs and Bloy on the interpretation of the 2003 Regulations and therefore was bound to conclude that the effect of reg 13 was to create a cause of action enforceable as a civil debt, in which compensation would be assessed on the basis of the law of England and Wales.

However, the effect of Rome II on the correct interpretation required to bring reg 13 into conformity with art 4 gave the MIB’s arguments that Jacobs had been wrongly decided very considerable force. Whether they were of sufficient force to achieve

67

a different result would be for others to determine(see [67], [73], [76] [82] of the judgment).

The assessment of the compensation payable, was to be assessed in accordance with the law of England and Wales (see [83] of the judgment).

Quantum Robshaw (A Child) v United Lincolnshire Hospitals NHS Trust [2015] All ER (D) 21 (Apr) [2015] EWHC 923 (QB) The claimant, aged 12 years, was born in December 2002. It was not disputed that his birth was negligently mishandled, with the result that he sustained significant brain damage, leading to serious disabilities. He sustained a hypoxic ischaemic encephalopathy during his unnecessarily prolonged birth and was subsequently diagnosed with motor developmental delay, cerebral palsy affecting all four limbs, rendering him quadriplegic or tetraplegic and learning difficulties. Liability for negligence was admitted and judgment for damages to be assessed was entered.

Agreement was reached before trial, subject to the approval of the court on the appropriate award of damages for pain, suffering and loss of amenity. However, further issues as to the assessment of damages remained outstanding.

The principal areas of dispute concerned,

•

First, the claimant’s life expectancy. The defendant’s case was that the

claimant would live to age 53 and the claimant’s case was that he would

live to 70 or 71.

•

Secondly, the claimant’s likely work pattern but for his disabilities.

•

Thirdly, the approach in law to the valuation of aspects of the claim.

•

Fourthly, whether the additional cost of demolishing the existing residence

and building a new property was reasonably to be borne by the

defendant or whether the damages should merely reflect the costs

of adapting the existing building.

Fifthly, the future management of the award by a deputy, the claimant’s

•

mother’s position and multi-disciplinary team meetings.

The court ruled:

(1)

A total of three years should be added to the predicted life before any reduction was considered for the risk that the claimant would not survive

68

until 15. That meant that the life expectancy, subject to any such

reduction, was to age 63.2. Taking into account that small risk, the relevant

age would be 63 (see [134], [137] of the judgment).

The realistic figure for the claimant’s annual gross earnings over his working

(2)

life from the age of 22 would be £42,000. A modest deduction,

measured in a few hundred pounds, would be made to reflect the

likelihood that he would have incurred some expenses in connection

with his employment. A round-figure sum of £7,500 was reasonable for his

earnings from 16 to 22. Further, on the assessment of the claimant’s likely

future but for his disabilities, he would not have been working in heavy,

manual labour or work with very considerable stresses beyond the normal

stresses of everyday working life. To that it extent it was much more likely

that he would have worked until 70 (see [154], [158], [160] of the

judgment).

(3)

In assessing how to provide full compensation for a claimant’s reasonable

needs, the guiding principle was to consider how the identified needs

could reasonably be met by damages. That flowed from giving true

meaning and effect to the expression ‘reasonable needs’. That process

involved, in some instances, the need to look at the overall proportionality

of the cost involved, particularly where the evidence indicated a range

of potential costs. However, it all came down eventually to the court’s

evaluation of what was reasonable in all the circumstances: it was usually

possible to resolve most issues in that context by concluding that one

solution was reasonable and, in the particular circumstances, another

solution was not. Where that was not possible, an evaluative judgment

was called for based upon an overall appreciation of all the issues in the

case, including but only as one factor, the extent to which the court

was of the view that the compensation sought at the top end of any

bracket of reasonable cost would, in the event, be spent fully on the

relevant head of claim (see [166] of the judgment).

Against the totality of the background, demolition and a new build was

(4)

the only sensible option in the present case and the immediate additional

cost of doing so was reasonable and proportionate (see [243] of the

judgment).

(5)

Issues about deputyship costs were considered and specific sums given,

including for the costs of the deputyship for the first three years following

the conclusion of proceedings and after the claimant reached 18 years.

69

Built into the assessment of the future deputyship costs had to be

adequate provision for including the claimant’s mother in the discussions,

making some allowance for the fact that she might wish to discuss matters

for longer than in other cases. Equally, there might come a time when

she and the claimant disagreed about important matters. At that stage,

the role of the deputy might increase significantly, both in discussing

matters with the claimant and with his mother. It was not, of course,

beyond the realms of possibility that the claimant’s natural father might

become more involved in the future. With respect to multi-disciplinary

team meetings, it would be sensible to provide for meetings that lasted at

least two hours in the initial stages. There was sense in having several

meetings early on, and allowance would be made for one every two

months for the first six months of the first year after the conclusion of

proceedings and then twice more in that year. After that until the age of

18, four meetings per year would suffice. Thereafter until age 25, three

meetings per year would be sufficient and thereafter, the claim for one

meeting per year would be accepted. Two hours should always be set

aside (see [444], [447]-[473], [475]-[477] of the judgment).

Costs and Part 36 Webb v Liverpool Womens’ NHS Foundation Trust [2015] All ER (D) 39 (Apr) The court previously gave judgment, finding that the defendant was liable to the claimant for 100% of her damages, even though the claimant was unsuccessful in many of her specific allegations, including with respect to the second limb of her claim (see [2015] All ER (D) 24 (Feb)). The judgment was more advantageous than the claimant’s CPR Pt 36 offer to settle, which the defendant had rejected. The present proceedings concerned the appropriate costs orders.

The issues for determination were:

(i)

whether, in the absence of a CPR Pt 36 offer, a proportionate costs order

would have been appropriate; and

whether the CPR Pt 36 offer had had a bearing on whether a

(ii)

proportionate costs order had been permissible and/or appropriate in

any event.

The court ruled:

70

The existence of a CPR Pt 36 offer did not, in principle, insulate the offeror from a proportionate costs order. The fact that there had been a CPR Pt 36 offer did not mean that the court was unable to make an issues-based or proportionate costs order. CPR Pt 36 was a self-contained regime and the rule itself made no reference to such orders. Nevertheless, insofar as such an order was necessary to avoid injustice, it was permissible for the court to make it (see [52], [53] of the judgment).

Albeit an issue-based or a proportionate order was a departure from the general principle, in the absence of a CPR Pt 36 offer, the court would have been disposed to exercise its discretion to make a costs order that had required the defendant to pay only a proportion of the claimant’s costs to recognise the claimant’s failure to establish her second limb claim. The defendant’s inflexible approach to settlement, while a matter to go into the balance, did not swing the scales against a proportionate order. Further, it would not be accepted that such an order ought not to be made simply because there had been a CPR Pt 36 offer. In the circumstances, a costs order would be made in the claimant’s favour limited to a percentage of her costs. The figure would be that which was appropriate to reflect the percentage of time expended on, and 100% of the disbursements directly incurred in, establishing the first limb, but not the second limb. The costs order would include all enhancements stipulated in CPR 36.14 from the relevant time. The starting point was that the CPR 36.14 costs consequences would apply to those costs awarded to the claimant, as there was no injustice in applying them. As a matter of principle, it was not appropriate to disallow the enhanced interest payable on damages (see [39], [40], [53]-[55] of the judgment).

Indemnity or Contribution?

Woodland (A Protected Party Represented by her Father and Litigation Friend, Ian Woodland) v Maxwell and another [2015] All ER (D) 55 (Apr) [2015] EWHC 820 (QB), The present proceedings were consequent upon earlier proceedings, concerning a claim brought against the second and third defendants for injuries suffered when the claimant nearly drowned during the course of a school swimming lesson (see [2015] All ER (D) 162 (Feb)). The second defendant, who was the lifeguard on duty at the pool, and PB, the swimming teacher in charge of the group of advanced swimmers, of which the claimant was a member, were found to be liable in negligence.

The third defendant local authority was found to have been in breach of its nondelegable duty of care in the conduct of school swimming lessons, although it had no role in the provision of the swimming lessons. Neither the second defendant nor PB were employed by the authority. The second defendant was insured through

71

the professional association of swimming teachers. The authority brought a claim for a contribution against the second defendant, pursuant to s 1 of the Civil Liability (Contribution) Act 1978.

It sought, first, a complete indemnity of 100% of its liability to the claimant from the second defendant and, in the alternative, a contribution of 50%.

The court ruled: It was not just and equitable that the second defendant indemnified the authority for the totality of the claimant’s damage. The second defendant was not an employee of the authority who was liable for her actions despite, for example, a gross breach of trust, or a failure to obey directions or training instructions of the employer. The authority’s personal responsibility to the claimant should not be passed on entirely to another just because there was an insurance company standing behind them.

As to contribution, having assessed the comparative culpability and causative responsibility between the two people whose personal conduct had fallen below the standards to be expected of them, namely, PB and the second defendant, the second defendant’s contribution was assessed to be one third. In all the circumstances, it was just and equitable to find for the authority in the contribution claim in the same figure of one third. It would be ordered that the second defendant should contribute one third to the authority’s liabilities to the claimant, both in respect of damage and legal costs (see [8], [9], [14], [15] of the judgment).

72

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thesolicitorsgroup.com

Chapter 6 May 2015

Jurisdiction over Belgian defendants – Shannon v Global Tunneling Experts UK Ltd and others [2015] EWHC 1267 (QB) Personal injuries action. The claimant, a British citizen, brought a claim for personal injuries in respect of an accident that occurred whilst working in Antwerp. The claim against the first defendant employer was brought in breach of statutory duty and negligence. The fourth and fifth defendants were the main contractors responsible for the project and comprising a joint venture under Belgian law. Those defendants were domiciled in Belgium (the Belgian defendants). The Belgian defendants sought a declaration that the court did not have jurisdiction over them in relation to the claim The Queen’s Bench Division allowed the claim on the basis of Regulation 44/2001.

The claimant was a British citizen who had been working on a railway construction project in Antwerp. He brought a claim for personal injuries in respect of an accident that occurred whilst working. The claimant contended that he suffered a severe crushing injury to his right foot when it was run over by a Bobcat machine being operated at the project by an employee of the second defendant, a French construction company. The machine was, it was said, owned and supplied by the joint venture. The immediate cause of the accident was the Claimant stumbling or tripping on debris that had been left on a ramp, leading to his falling to the ground.

Notwithstanding the claimant’s warnings, the driver of the machine proceeded to move it in a forward direction, and the claimant’s right foot became trapped.

It was the claimant’s case that the Bobcat machine was defective. The claim against the first defendant was brought in breach of statutory duty and negligence.

He contended that his employer was the first defendant, a company domiciled in England and Wales. The fourth and fifth defendants were the main contractors responsible for the project and comprising a joint venture under Belgian law. Those defendants were domiciled in Belgium (the Belgian defendants). The Belgian defendants sought a declaration that the court did not have jurisdiction over them in relation to the claim.

74

The Belgian defendants submitted:

(i)

that the court lacked jurisdiction over the claim as art 6(1) of Regulation

44/2001 (the Brussels Regulation) did not apply as there was no risk of

irreconcilable judgments within its scope, therefore, art 2 applied and the

court was not properly seized of the claim; and

the claim related to at least one ‘individual contract of employment’

(ii)

within the meaning of art 18.1 of the Brussels Regulation, therefore art 19

applied, and that the claim against the Belgian defendants could only

have been brought in Belgium. In relation to

(iii) it was submitted that the claim related to an individual contract of

employment, being either the claimant’s contract with the first defendant

and/or the claimant’s implied contract with the Belgian Defendants

and that the provisions of s 5 of the Brussels Regulation laid down

an exhaustive jurisdictional regime which ousted both art 2 and art 6,

and that it was sufficient that any part of the claimant’s pleaded case

related to an individual contract of employment.

The application would be dismissed.

(1)

In situations where the outcome was capable of turning on a point of law,

the application of different legal regimes would mean that no risk of

‘irreconcilable judgments’ arose. However, in cases which were heavily

fact-dependant, and which might also turn on questions of law, the ambit

of inquiry for art 6(1) purposes had to be much broader, it had to embrace

‘all the necessary factors in the case file’ accepting the element of

circularity inherent in the use of the epithet ‘necessary’. As in many legal

situations, it was a domain where context was all. The court would be

guided by the broad common sense approach, eschewing over-

sophisticated analysis (see [39] of the judgment).

The context in the instant case was the relatively familiar one of a multi-

party claim for personal injuries where the claimant’s principal target was

his employer, by whom a non-delegable duty was owed, and his

secondary target was the entity responsible for the machine which

allegedly had caused his accident. The employer was not vicariously

liable for the employees of the Belgian defendants, but it was directly

liable in respect of matters relating to the system of work which it was

incapable of delegating. In the circumstances, it was clear that any

court trying the case, whether against the first defendant or the Belgian

75

defendants, would have to resolve various issues of fact. Having regard

to all the necessary factors drawn to the court’s attention by the parties,

there was a risk of irreconcilable judgments arising from separate

proceedings, art 6(1) of the Brussels Regulation applied to the facts of the

case (see [40], [45] of the judgment).

Gard Marine and Energy Ltd v Tunnicliffe [2009] All ER (D) 110 (Oct)

applied; ET Plus SA v Welter [2005] All ER (D) 89 (Nov) applied; Alcock

v Chief Constable of South Yorkshire Police [1991] 4 All ER 907 considered.

Articles 18-20 of the Brussels Regulation applied to claims for damages

(2)

in personal injuries where a relevant contract of employment existed.

Section 5 of the Brussels Regulation established a self-contained,

exhaustive regime for ‘matters relating to an individual contract of

employment’. There was however, no evidence that a claim for personal

injuries brought against an employer was caught by s 5 (see [51], [55] of

the judgment).

Articles 18-20 had no application to the claim against the Belgian

Defendants, because no relevant contract of employment existed. The

court could not see how s 5 should operate to prevent the claimant from

relying on art 6 in circumstances where the claim against the Belgian

Defendants had not fallen within that section at all. In regard to abuse

of process, if the law permitted the claimant to rely on art 6(1) of the

Brussels Regulation, then he was entitled (without more) to do so (see [57],

[58], [59] of the judgment).

Limitation Chinnock v Veale Wasbrough and another [2015] EWCA Civ 441 The claimant had retained the defendant firm of solicitors and barrister in respect of a clinical negligence claim. They advised her that she did not have a viable claim.

Consequently, she did not pursue the action. She was subsequently advised that her claim had been viable and so she issued proceedings alleging professional negligence. The claim was dismissed on grounds of liability and as being statute barred. The Court of Appeal, Civil Division, dismissed the appeal, but differed from the judge in finding that she had had constructive, not actual, knowledge that she had had a viable claim against the lawyers.

76

In November 1999, the claimant instructed a solicitor to act for her and her then husband in a clinical negligence claim that they wished to pursue which alleged wrongful birth. In March 2000, that solicitor moved to work for the first defendant firm of solicitors (the firm) and took the case with him. A partner at the firm took day to day conduct of the matter and secured legal aid funding. The second defendant barrister (counsel), who specialised in clinical negligence, was instructed. In July 2001, the legal representatives and claimant met in conference. A full history of events was taken and two expert witnesses attended by telephone. Having reviewed the expert evidence and the relevant material, counsel advised that the claim could not succeed on liability and legal aid would have to be withdrawn. The solicitor supported that advice. That advice was confirmed by letter, with the solicitor adding that, if dissatisfied, the claimant could take alternative legal advice. The claimant and her husband, while surprised and disappointed, accepted that advice and allowed the claim to lapse. Eight years later, the solicitors acting for the claimant’s husband in divorce proceedings referred the matter of the clinical negligence claim to the appropriate department. Investigations concluded that the claimant and husband had received bad advice and, therefore, had a claim for professional negligence against the firm and counsel. Accordingly, in July 2010, the claimant and husband issued proceedings against the firm and, in January 2012, against counsel. The two actions were ordered to be managed and tried together and a further order was made that the questions of liability and limitation be determined as preliminary issues. The judge dismissed the claims. First, only the claimant had been a client of the firm and counsel, therefore, no duties had been owed to the husband.

Consequently, his claim failed. On the evidence, there had been no negligence on the part of the firm or counsel either in their conduct of the matter or in their advice.

Both the firm and counsel had done all that could have been expected in having decided whether there had been a viable birth. Counsel had put proper questions to the experts during the conference. The primary limitation period had expired in 2007, therefore, the claimant had had to rely upon s 14A of the Limitation Act 1980.

For the purposes of that section, the claimant had known the material facts in 2001.

She had known the identity of the firm and counsel. All that she had not known was that the advice had been negligent and that was irrelevant for the purposes of s 14A(9) of the Act. Consequently, her claim was statute barred. The claimant appealed.

She submitted that:

(i)

given the evidence of two periods of negligence on the part of the

medical staff, there had been a breach of duty on their part which gave

rise to a viable cause of action which the firm and counsel had been

negligent in having failed to identify; and 77

(ii)

the claim had not been statute barred because she had not learnt until

2009 that the advice she had received had been incorrect. In considering

the second issue, the court assumed that the claimant had had a viable

cause of action (proposition 1) and that the error made by the counsel

and firm in advising otherwise had been negligent (proposition 2)

The appeal would be dismissed.

(1)

It had been perfectly reasonable for counsel to have concluded that

the claimant had had no viable claim on the basis of failure to advise

and inform. Counsel had been competent in her questioning of the

expert witnesses. The advice that she had given had been correct on the

basis of the material that had been available to her and the law as it had

stood in 2001. Had counsel failed to ask relevant questions or had given

advice with which the solicitor disagreed or should have disagreed, then

the solicitor should have stepped in. But that had not happened. The

solicitor had acted entirely correctly during the conference. The letter

sent after the conference, while robust, had been in line with counsel’s

advice and had pointed out that the claimant could seek alternative

legal advice. The solicitor had done no more and no less than had been

her duty when she had written the discouraging letter to the claimant.

Consequently, the firm had not been negligent (see [42]-[45], [64]-[68],

[70], [75]-[78], [97], [107] of the judgment).

Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 considered; Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] 1 All ER 643 considered.

(2)

The word ‘negligence’ in s 14A(9) of the Act meant negligence of the

then defendant or of a person for whose conduct that defendant

was liable. ‘Negligence’ did not embrace the negligence of some third

party in an adversarial relationship with the defendant being sued (see

[88], [109] of the judgment).

(Roth J dissenting in part) The claimant’s claim against the firm and

counsel was statute barred. The bare fact that the claimant had not

known proposition 2 had not prevented time from starting to run under

s 14A of the Act. Therefore, time had not started to run against her until

she had known, or ought to have known, that she had had lost a viable

cause of action. She had had constructive knowledge of proposition 1 by

reason of s 14A(10) of the Act. When the claimant had been advised

that she did not have a viable claim, she could have consulted other 78

lawyers or let matters rest. It had not been open to her to abstain from

further inquiries for eight years and then to have sought legal advice (see

[87], [89]-[92], [97], [109] of the judgment).

Forbes v Wandsworth Health Authority [1996] 4 All ER 881 considered;

Oakes v Hopcroft [2000] All ER (D) 1064 considered; Haward v Fawcetts (a

firm) [2006] 3 All ER 497 considered.

Decision of Dingemans J 136 BMLR 214 Affirmed On Other Grounds.

Professional Negligence Procter v Raleys Solicitors [2015] EWCA Civ 400 The claimant brought proceedings against the defendant solicitors’ firm, which he had instructed to pursue a claim for damages as a result of developing vibration white finger. He alleged that, if it had properly advised him about the nature of the relevant compensation scheme so far as it related to services and the claim which was open to him in the circumstances, he would have claimed under that head and could have recovered additional compensation. The claim was upheld. The Court of Appeal, Civil Division, dismissed the defendant’s appeal. It held, inter alia, that the written advice given to the claimant had been unclear and there had been clear indications that it might not have been understood. It was not asking much of a solicitor in such circumstances to make sure that his client understood the opportunity apparently being passed up.

Between 1986 and 2004, the claimant (P) worked as a miner at various collieries. As a result of using vibratory tools, he developed vibration white finger (VWF). In 2000, he instructed the defendant solicitors’ firm (Raleys), to pursue, on his behalf, a claim for damages as a result of developing that condition. With Raleys’ assistance, P pursued a claim for compensation against his former employers under the scheme set up by the Department for Trade and Industry to provide tariff-based compensation to miners who had been exposed to vibration and, in consequence, suffered from VWF. In November 2003, P agreed to settle his claim against both previous employers for £11,141, including interest. That sum was paid in settlement of his claims for general damages and for handicap on the labour market. He made no claim for either loss of earnings or for ‘services’, namely, assistance with domestic tasks rendered necessary as a consequence of his disability. P subsequently brought proceedings against Raleys, alleging that, if it had properly advised him about the nature of the scheme so far as it related to services, and about the claim which was, in consequence, open to him in the light of his circumstances, he would have made

79

a claim under that head and could have recovered, approximately, an additional ÂŁ11,079. The judge upheld the claim and awarded P damages for the loss of the opportunity to pursue a services claim. He held, inter alia, that, on the facts, Raleys should have done more to ensure that P had actually understood the advice he was receiving. Raleys appealed.

The issue for determination was whether Raleys had been negligent in having failed to conduct either a meeting or a telephone conversation with P in order to satisfy itself that he had fully understood the advice which it had tendered in three letters (for details of the letters see [18], [22], [29] of the judgment).

The appeal would be dismissed.

It was a mistake to assume that someone who had not had the benefit of formal education beyond the age of 16 was necessarily lacking in powers of comprehension, but such a person who had, thereafter, worked as a miner was not likely to have had a detailed understanding of the concepts relevant to the availability of compensation. The notion that a solicitor should feel inhibited from ensuring that his client had understood advice given to him by the consideration that so ensuring might generate a further fee payable by the client was rejected.

The question of what, in any given case, a solicitor should do so as to ensure that his advice was understood was a question of fact and degree. There could plainly be no hard and fast rule that it was no part of a solicitor’s duty to test the client’s understanding (see [45], [46], [51], [52] of the judgment).

The situation in the present case had cried out for a short discussion with the client, preferably face-to-face but, if necessary, over the telephone, in order to ensure that he had understood the circumstances in which a claim for compensation for services could be made. It could be said that the three letters had been checking, or at any rate enquiring, whether the factual matrix had applied. However, the vice in the letters had been that the shape of the factual matrix itself had been inadequately described or explained. The letters had signally failed to give a clear exposition either on the critical question of whether gratuitous assistance would attract compensation or, until the third letter, on the fundamental question, not in the event relevant in the present case, whether a reduction in the ability to carry out the tasks short of total inability would be a sufficient basis upon which to make a successful claim.

Further, whatever might be the practical and economic constraints in conducting face-to-face meetings or telephone discussions with clients in claims handling of the present nature, it was apparent that, in the present case, there had been at least two opportunities to give, without significant additional cost, a straightforward exposition of the circumstances in which a claim could be made and to follow up

80

the implications of such relevant information as P had given. It was to the solicitors’ credit that their system had generated internal reference to those very matters.

To impose liability for the failure to follow up the issues flagged in that way did not involve the imposition of an unrealistic standard. Raleys had been dealing with a client who could fairly be regarded as unsophisticated in the relevant field. The written advice given to him had been unclear and there had been clear indications that it might not have been understood. It was not asking much of a solicitor in such circumstances to make sure that his client understood the opportunity apparently being passed up (see [45], [48], [49], [51], [52] of the judgment).

Interim Payments CR (a child and protected party by her mother and litigation friend CRL) v West Hertfordshire Hospitals NHS Trust [2015] EWHC 1123 (QB) The claimant had her claim for clinical negligence compromised at 75% of the full value and was awaiting trial for an assessment of damages. There was an application before the court for an interim payment in the sum of £550,000. The Queen’s Bench Division decided to award an interim payment of £383,858 as being reasonable proportion of the likely amount of the final judgment.

The claimant, CR, was born in 2008, so was now very nearly seven years old. She had suffered brain damage at birth and had been diagnosed with whole body cerebral palsy. Her claim against the hospital for clinical negligence had been compromised at 75% of full value. The assessment of damages was unlikely to take place for a further 18 months. An application was made for interim payment in the sum of £550,000. On a summary basis the judge awarded an interim payment of £100,000 on account. The judge adjourned the balance of the interim payment application for a full hearing. The instant application was for a further £450,000. The defendant local authority had made an open offer of a further £250,000. In order to assess whether the interim payment applied for was reasonable, the judge had to made an estimated assessment of the claim.

The application fell into two parts.

First, there were the past losses and expenses to date, together with general damages for pain, suffering and loss of amenity.

Second, there were the anticipated losses and expenses over the next 18 months before the assessment hearing.

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The defendant submitted that, as a matter of principle, a claim of the magnitude of the claimant’s case in respect of the 18 months prior to the assessment hearing was unrealistic if not misconceived, because it was very doubtful that sums of that order would actually be expended. It contended that because the judgment had been for 75% rather than full liability, those arranging CR’s care were unlikely to want to commit to a care regime and other arrangements and expenditure that would not be sustainable in the long term. Although the defendant conceded that some assessment of the additional claim over the next 18 months had to be made, it accepted that there would be substantial expenditure on CR’s needs. It invited the court to assess the claim at no more than £150,000.

The court ruled: The court should award no more than a reasonable proportion of the likely amount of the final judgment, and the court should make its assessment on a conservative basis. Having done so, however, the reasonable proportion awarded might be a high proportion of that figure (see [5] of the judgment).

The sums the court would allow for anticipated losses and expenses over the next 18 months were: (a) for a case manager, £30,000; (b) for the cost of care, £200,000; (c) for therapies, £15,000; (d) for aids and equipment, £30,000; (e) for vehicle expenses, £50,000; (f) for additional costs, £2,000; (g) for assistive technology, £5,000; (h) for holidays, £7,500; and (i) for a deputy, £26,000.

The situation was that the claimant was seeking an interim payment representing the sums that would be reasonably and necessarily incurred over the next 18 months, which would then be awarded as special damages at the assessment hearing in 18 months time. The court had to be satisfied that expenditure approximating to the amount proposed would in fact be incurred before the assessment hearing.

That involved consideration for true future losses, of whether the expenditure was necessary, appropriate and reasonable.

On the evidence, the court was satisfied that the likelihood was that the proposed expenditure would be made during the next 18 months. At the assessment hearing in 18 months time there would be the opportunity to review precisely what has been spent and/or what losses have been incurred, so that any necessary adjustment could be made. The defendant would not be prejudiced in any way. It was not a case where allowing expenditure on substantial items at that stage would produce an unlevel playing field, inhibiting the trial judge’s freedom of decision (see [45], [47], [48], [50] of the judgment).

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The sum proposed to award by way of interim payment was merely 10% of the total sum, and a very much smaller proportion of the claim as a whole. It was certainly not excessive in proportion to the whole claim. Accordingly the court would order that the defendant had to make a further interim payment in the sum of £383,858 (see [54] of the judgment).

Eeles v Cobham Hire Services Ltd [2009] All ER (D) 144 (Mar) considered; Bailey v Smith [2014] All ER (D) 270 (Jul) applied.

Grainger v Cooper [2015] EWHC 1132 (QB) In a personal injury case in which liability and causation were admitted but damages were in issue, the claimant applied for an interim payment in order to purchase a property to adapt for her own living arrangements. The Queen’s Bench division allowed a payment under stage one of the judgment of Eeles v Cobham Hire Services Ltd [2009] All ER (D) 144 (Mar) reasoning that such a decision would not create an unlevel playing field as between the parties.

The claimant was born in 1990. She suffered extremely serious injuries in 2012 when she was thrown from the motorcycle she was riding as a pillion passenger. Liability was not in dispute and judgment with damages to be assessed was entered in 2013.

Unless the case settled, damages were to be assessed at a trial due to start in 2016.

There had been previous interim payments. The total amount paid to the claimant, including a sum of £75,000 due to be paid imminently, was £970,000. The net amount sought was £425,000. By application notice of 2015, the claimant sought a further payment of £700,000 to fund the purchase of a suitable property and perform works of adaptation. The claimant wished to commence living independently of her parents and in that new property.

The application fell to be determined in accordance with CPR Pt 25.6 and 25.7 and also in accordance with the guidance provided by the Court of Appeal in Cobham Hire Services Limited v Eeles [2009] All ER (D) 144 (Mar) (Eeles). At trial the judge would want to consider if at least some heads of future loss should be dealt with by way of an order for periodical payments. The starting point was CPR Pt 25.7(4): ‘the court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment’. Eeles was widely regarded as comprising two stages. Under the first stage, the judge had to assess the likely amount of the final judgment leaving out of account the heads of future loss. Where, however, the interim payment requested exceeded a reasonable proportion of the likely award thus assessed, recourse might be had to the second stage of Eeles. Under that stage, the judge might include in the assessment of the likely amount of a final judgment the capitalised amounts of future losses. However, he could only do that if he ‘could 83

confidently predict that the trial judge will wish to award a larger capital sum that that covered by’ the items falling within the first stage of Eeles.

The general rule was that in respect of an interim payment assessed by reference only to stage one of Eeles the court was not concerned with what the claimant did with the money. Furthermore, the judge had to be satisfied by evidence that there was a real need for the interim payment requested.

It was submitted that the claimant had become extremely emotionally attached to the notion of buying and adapting that particular property and that suitable properties were in scarce supply in the area where the claimant wished to live.

The court ruled: Following a standard calculation, £133,396 was available to be awarded under Eeles stage one. That was in addition to the £75,000 shortly to be received in any event.

That was not enough to permit purchase of the desired property. There was no doubt that the claimant would if she could buy the property in advance of the trial. If that would result in the creation of an uneven playing field, the court had discretion not to direct an Eeles stage one payment. Accordingly, it was necessary to consider the second stage of Eeles. There was no immediate ‘reasonable necessity’ for the claimant to purchase another property before the trial in January 2016. Nevertheless, it was plainly in her best interests to set about commencing living independently of her parents and in her own property. Further, the instant was not a case where the court could ‘confidently predict’ that the trial judge would necessarily wish to capitalise heads of future loss other than care and case management. In the circumstances, if the claimant did purchase the property it would not result in an unlevel playing field (see [27], [30], [31], [32], [35], [36] of the judgment).

The court would direct the payment of a further interim payment in the sum of £133,000 (see [37] of the judgment).

Eeles v Cobham Hire Services Ltd [2009] All ER (D) 144 (Mar) applied; Campbell v Mylchreest [1999] PIQR Q 17 considered.

Ex-Turpi McCracken (a protected party suing by his mother and litigation friend Deborah Norris) v Smith and others [2015] EWCA Civ 380 The claimant, DM, brought a claim in respect of injuries suffered in an accident, in which the stolen or unlawfully taken trials bike, ridden far too fast by the first defendant and upon which DM was riding as a pillion passenger, collied with a

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minibus driven by the third defendant, DB. The judge rejected the defence of ex turpi causa and found DB had driven negligently, although damages were reduced by 45% to reflect DM’s contributory negligence. The Court of Appeal, Civil Division, held, inter alia, that the relationship between DM’s turpitude, namely, his participation in the joint enterprise to ride the bike dangerously, and his claim in negligence against DB, was not such as to debar the claim. The causal contribution of the dangerous riding of the bike could and should be taken into account in the assessment of contributory negligence.

A trials bike, which had been stolen or unlawfully taken and was not allowed on normal roads, was being ridden far too fast on a path reserved for cyclists by the first defendant, DS, who did not have a driving licence or insurance. He was carrying a pillion passenger, the claimant, even though the bike was not designed for passengers. The bike collided with a minibus driven by the third defendant, DB, as the minibus turned right. Both boys were seriously injured in the accident, the claimant particularly so. He brought a claim, through his mother and litigation friend, against the defendants. The judge found that DS was liable to the claimant in negligence.

The defence of ex turpi causa non oritur actio did not succeed in respect of the claim against DS or, therefore, the second defendant Motor Insurers’ Bureau (the MIB).

However, the MIB’s liability was excluded by cl 6.1(e)(ii) of the Uninsured Drivers’ Agreement, as it had proved that the claimant knew that the bike was being used without insurance. As regards DB, since the defence of ex turpi causa had been rejected in relation to DS and the MIB, it was not necessary to consider whether it was available to DB. He was found to have driven negligently, but the claimant’s damages were reduced by 45% (including the agreed 15% for failure to wear a helmet), to reflect his own responsibility for his injuries. Liability was apportioned between DS and DB, in the ratio of 80% to 20%. It was ordered that the MIB was entitled to 90% of its costs, which should be paid by DB, rather than by the claimant.

DB appealed.

The issues before the court were, First, whether the judge had erred in his characterisation of the claimant’s role including, in particular, whether he had been wrong to characterise the activity as ‘just going for a ride’, rather than going for a joyride and whether he should have found that the claimant, although a pillion passenger, had been participating in a joint enterprise with DS to ride the bike dangerously.

Second, whether the judge had erred in rejecting the defence of ex turpi causa. The court considered, inter alia, the judgment of Lord Hoffman in Gray v Thames Trains Ltd ([2009] 4 All ER 81) (Gray).

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Third, whether the judge had erred in his finding that DB had been negligent.

Fourth, whether the judge had erred in reducing in damages by 45%, rather than a substantially higher figure, on account of the claimant’s contributory negligence.

Fifth, whether the judge had erred in ruling that the MIB’s recoverable costs be paid

by DB, rather than by the claimant.

The court ruled:

(1)

The judge had, on any view, been generous to the claimant in distancing

him as he had from DS’s dangerous riding. He had been unduly generous

and the inferences urged on the court by DB were irresistible inferences

on the facts as found. The judge had plainly been right to find that DS and

the claimant ‘were going for a ride together with whatever that entailed’,

but if one asked oneself what that ride was going to ‘entail’, the only

realistic answer was that it was going to entail the very kind of dangerous

riding that had, in fact, taken place on that occasion. It had been

joyriding in the sense that DB attributed to that term. That was what the

claimant had to have expected to happen when he had got on the

bike. He had clearly known about trials bikes and the way they were

being used on the road. Further, the judge had been unduly generous

to the claimant in compartmentalising the conduct of the two boys in the

way that he had. The proper inference was that the two boys had been

parties to a joint enterprise, the essence of which was that the bike was to

be ridden dangerously (see [20], [21], [80], [81] of the judgment).

R v Baldessare (1931) 22 Cr App Rep 70 considered; R v Mahmood [1994] Crim LR 368 considered.

(2)

If the duty of care analysis formerly applied in the joint enterprise cases

had any application in the present case, it would tell decisively against

the ex turpi causa defence succeeding. It was clear that the dangerous

driving of the bike had had no effect whatsoever on DB’s duty of care or

on the standard of care reasonably to be expected of him. The causation

analysis was more problematic. The situation could not be

accommodated neatly within the binary approach of Lord Hoffmann in

Gray. One could not say that ‘although the damage would not have

happened but for the tortious act of the defendant, it was caused by

the criminal act of the claimant’, but, equally, one could not say that

‘although the damage would not have happened without the criminal

act of the claimant, it was caused by the tortious act of the defendant’.

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The accident had two causes, properly so called; the dangerous driving

of the bike and the negligent driving of the minibus. It would be wrong to

treat one as the mere ‘occasion’ and the other as the true ‘cause’. The

claimant’s injury had been the consequence of both. The fact that the

criminal conduct had been one of the two causes was not a sufficient

basis for the ex turpi causa defence to succeed. Accordingly, the judge

had been right to reject the ex turpi causa defence in relation to the

claim against DB, albeit the court’s reasons were very different from

those of the judge. The relationship between the claimant’s turpitude,

namely, his participation in the joint enterprise to ride the bike

dangerously, and his claim in negligence against DB was not such as

to debar the claim. The causal contribution of the dangerous riding of the

bike for which the claimant had been responsible could and should be

taken into account in the assessment of his contributory negligence (see

[50]-[52], [55], [80]-[87] of the judgment).

Pitts v Hunt [1990] 3 All ER 344 considered; Revill v Newbery [1996] 1 All ER 291 considered; Gray v Thames Trains Ltd [2009] All ER (D) 162 (Jun) considered; Delaney v Pickett [2011] All ER (D) 201 (Dec) considered; Joyce v O’Brien [2013] All ER (D) 225 (May) considered; Les Laboratoires Servier v Apotex Inc [2014] All ER (D) 328 (Oct) considered.

(3)

The judge had given a careful explanation of why DB should have been

aware of the possibility that one or more bikes had been approaching

on the cycle path or footpath. There was no basis for the court to interfere

with his assessment, founded as it had been in the particular

circumstances of the case. Once that particular factor was accepted,

the finding of negligence followed inevitably. A finding of negligence

would seem to have been appropriate, even in the absence of that

particular factor. On any view, DB ought to have looked over his shoulder

along the cycle path before turning right and, if he had looked, on the

judge’s findings, the bike had been there to be seen (see [61], [80], [81] of

the judgment).

(4)

The judge had fallen into material error in his characterisation of the

claimant’s role. The claimant’s fault had gone beyond allowing himself

to be a pillion passenger on the bike. It had extended to his participation

with DS in a criminal joint enterprise to ride the bike dangerously. The

claimant had, therefore, been the author of his own misfortune to a

greater extent than had been allowed by the judge. A fair reflection of

that greater degree of blameworthiness and causative potency of the 87

claimant’s conduct would be an overall deduction of 65% in his damages

(namely, 50%, plus the agreed deduction of 15% for failure to wear a

helmet), as compared with the overall deduction of 45% ordered by the

judge (see [67], [80], [81] of the judgment).

In the circumstances, the judge had not been wrong to order DB to pay

(5)

the MIB’s recoverable costs. The order had fallen within the reasonable

ambit of the judge’s discretion (see [76], [77], [80], [81] of the judgment).

Accordingly, the appeal on liability would be allowed to the extent of increasing the total deduction for the claimant’s contributory negligence from 45% to 65%, but the appeal would otherwise be dismissed. The costs appeal would also be dismissed (see [79]-[81] of the judgment).

Decision of Keith J [2013] EWHC 3620 (QB) Affirmed In Part.

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Chapter 7 June 2015

Begum v Birmingham City Council [2015] EWCA Civ 386 The claimant local authority tenant was successful in her action against the authority.

The claimant succeeded in her claim for breach of statutory duty, but failed in her claims for negligence and misrepresentation based upon substantially the same facts. The judge made a costs order which effectively wiped out the damages that she had recovered in the litigation. The claimant appealed. The Court of Appeal amended the costs order to more effectively reflect the various issues.

In 2001, the claimant became a joint tenant of a local authority property with Mr M. In 2003-4 the claimant purchased the house from the authority under the right to buy provisions of the Housing Act 1985. Subsequently cracking appeared in the rear extension of the house. The claimant and Mr M made a claim on their insurers.

The insurers refused to pay on the ground that the damage was attributable to preexisting defects. The claimant and Mr M intimated a claim against the authority for the cost of the necessary remedial works. The council denied liability. Proceedings were issued against the council, initially in Mr M’s name and then the claimant’s name was substituted. The claimant was successful on breach of statutory duty under s 125 (4A) of the 1985 Act. The judge held that there had been two causes of the damage to the house, namely: (i) lack of wall ties between the right-hand corner of the rear wall of the back addition and the adjoining property (defect 1); and (ii) inadequate foundations, which progressively caused damage in the form of cracking in and displacement of the associated drains (defect 2). It found that the authority was aware of defect 1 and ought to have disclosed it and therefore the authority was in breach of its statutory duty under s 125 (4A) of the 1985 Act and liable to the claimant in damages. The authority was not aware of or liable for defect 2. The judge dismissed the claimant’s claims for negligence and misrepresentation.

The judge was unable on the material before him to determine the relative causative potency of defect 1 and defect 2. There was a further hearing in November 2013 to deal with causation and quantum. In his judgment he held that defect 1 had caused 90% of the damage and defect 2 (inadequate foundations) caused 10% of the damage. He held that if the authority had disclosed defect 1, the claimant would have insisted upon rectification before purchasing the property. The judge assessed

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remedial costs at £71,178 and general damages for inconvenience at £11,500.

After deducting 10% in respect of defect 2 (for which the authority was not liable) and making other adjustments he awarded damages of £74,876 to the claimant. In respect of costs, the judge made no order for costs in respect of the period before issue of proceedings. In respect of the period from issue to 14th May 2012 (which the judge called ‘period 1’), he ordered the claimant to pay the defendant’s costs subject to one proviso. The proviso was that the authority should pay the claimant’s cost of obtaining expert evidence during that period. That produced the consequence that each party was required to pay the costs of the other side’s expert during period 1. In respect of the period 14 May 2012 to 4 June 2013 (which the judge called ‘period 2’), he ordered the defendant to pay 40% of the claimant’s costs. In respect of the period 5 June 2013 to 18 December 2013 (which the judge called ‘period 3’), he ordered the defendant to pay 80% of the claimant’s costs.

The reasons were:

(i)

during period 1, the action was bound to fail because the claimant’s only

pleaded claim was for negligence and misrepresentation;

during period 2 the claimant was pursuing three causes of action only one

(ii)

of which succeeded, namely her claim for breach of statutory duty;

(iii) if the claimant’s case had been properly pleaded, all issues would have

been dealt with in the hearing during May 2013. Therefore the claimant’s

inadequate pleading caused matters to be dealt with in two hearings

rather than one hearing. On the other hand all the evidence at both

hearings needed to be deployed in any event. In order to reflect the

inefficient way in which the litigation proceeded the claimant should

recover 80%, rather than 100%, of her costs during period 3.

The claimant was aggrieved by the judge’s costs order and appealed.

The claimant submitted that her case was and always had been that the authority was at fault in failing to refer back to its own records and to alert the claimant to serious structural defects before selling the property to her. The claimant’s pleaded claims for negligence, misrepresentation and breach of statutory duty were different labels which the pleader applied to the same underlying facts. The factual and expert evidence which both parties assembled was directed to those facts. Both parties would have prepared and adduced substantially the same evidence, even if the claimant had only ever pleaded her claim as one for breach of statutory duty.

The appeal would be allowed.

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The proper way to reflect the claimant’s lack of success on negligence and misrepresentation would be to make a discount of 15% from the claimant’s costs up to 4 June 2013. The court accepted that at trial a modest amount of time had been spent debating the legal issues. The claimant effectively abandoned her case on misrepresentation at that stage, but not her claim in negligence, which was the subject of some argument. The claimant would recover 85% of her pre-issue costs and 85% of her costs during periods 1 and 2 (see [32]-[34] of the judgment).

Beoco Ltd v Alfa Laval Co Ltd [1994] 4 All ER 464 distinguished.

RTA Contributory Negligence Vann and others v Ocidental - Companhia de Seguros S.A. [2015] EWCA Civ 572 Road traffic – Accident. In an accident in Portugal, two pedestrians were hit by a car as they crossed the road. One suffered serious injury and the other died.

Personal injury proceedings were commenced against the driver’s insurer. Liability was established against the driver with a finding that the pedestrians had not been contributory negligent. The insurer appealed. The Court of Appeal, Civil Division, allowed the appeal and held that, while the driver had been driving dangerously, the pedestrians had not been keeping a proper look out and had failed to take avoiding action while it had been possible. Therefore, the pedestrians had been 20% contributory negligent.

The first claimant and her husband (together, the victims) had gone on a family holiday to Portugal. They were accompanied by, among others, their son (the second claimant) and their daughter (the third claimant). The group had eaten dinner at a restaurant one evening. To return to their car, they had had to cross a road which had one line of traffic in each direction and, at a distance from where they crossed, there was a hill in the road. A car was travelling along that road.

According to his evidence, the driver had been travelling at around 70 kph. He saw a pedestrian or pedestrians and braked, but he hit the victims. The third claimant witnessed the impact. The first claimant suffered multiple fractures and injuries, including frontal lobe damage. She survived, but with disabilities and cognitive impairment. Her husband suffered fatal injuries and subsequently died. The police investigation showed that the victims had almost crossed from one side of the road to the other when the accident occurred. The family took the view that the accident had been caused by negligent driving and issued personal injury proceedings against the defendant insurer of the driver, the second and third claimants doing so, both on their own behalf for psychological injuries sustained from having witnessed the accident, and in their capacity as executors of the husband’s estate. The

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action fell to be determined in accordance with Portuguese law which provided that when a motor vehicle hit a pedestrian, there was a presumption that the driver was liable, unless the driver showed that the pedestrian had been at fault. Where both parties were at fault, the court apportioned liability applying principles which were essentially the same as the English law of contributory negligence. Both parties instructed expert witnesses who produced a joint report. The judge found that the driver had been driving at 53 to 64 mph (with a mean speed of 58.5 mph). That was close to, or in excess of, the speed limit of 56 mph. He had been driving too fast for the conditions. When the driver had reached the crest of the hill, he should have slowed down. He ought to have realised there might be pedestrians in the road.

Had the driver been keeping a proper look out, he would have seen the victims at a distance of 60 metres. Had he been travelling at 43 mph (the safe and proper speed according to the experts) he would have been able to stop before the impact. The driver had had his headlights on. Nevertheless, the judge accepted the evidence of four of the family members (including the second and third claimants) that none of them had seen the car’s headlights. It had been safe for all members of the family to have crossed the road when they had. Although the victims had drunk some alcohol during dinner, they had not been affected by alcohol. They had not failed to keep a proper look out. They had already been crossing the road when the car had become visible. They had been faced with an emergency when the car appeared and could not be criticised for having failed to get out of the path of the vehicle.

Accordingly, the claimants succeeded on liability and the judge found that there was no contributory negligence. The defendant appealed on the ground that the judge had erred in finding that there had been no contributory negligence.

It submitted that the victims had been negligent in that they had failed to keep a proper look out or to have moved away from the path of the oncoming car. Having found that the car headlights had been on (contrary to the claimants’ contention), the judge had been obliged to conclude that the victims ought to have seen the car in time to have avoided the accident.

The appeal would be allowed.

The victims had not taken reasonable care as they had crossed the road. They had failed to keep a proper look out and they had failed to take avoiding action while that had still been possible. The judge’s finding that they had been keeping a proper look out had not been a finding of primary fact at all. For obvious reasons, neither of the victims had given evidence. No witness had given evidence that he had seen whether the victims had been keeping a proper look out. The judge’s finding had to have been an inference from the primary facts. That inference had been impermissible. The victims could not have been expected continuously to looked 93

to the direction from which the car had come as they had crossed the road. On the other hand they ought to have been keeping an eye out for traffic coming from both directions. Had they been keeping a proper look out, they would have become aware of the approaching car whilst they were still on the other side of the road. Instead, they had simply kept on walking across the road. It was clear that noone from the family had noticed the car before they heard it braking. At that point, the car had been so close to the point of impact that the victims had not had an opportunity to escape. The car had had its headlights on and the engine had been audible. In those circumstances, the victims ought to have noticed its approach before they had crossed to the centre of the road. Therefore, the negligence of the victims had been a contributory cause of the accident. The driver had been principally at fault. He had been driving far too fast in an urban area, where pedestrians had been likely to have been present. That had plainly been dangerous driving. The victims had stepped into the road when it had been safe to do so and when there had been no traffic in sight in either direction. The driver’s dangerous driving had them in a situation where they had had to take evasive action, namely to have stopped in their tracks or, better still, to have retreated to the verge (see [32][36], [40], [41], [44], [45] of the judgment).

Consequently, the judge’s judgment would be varied to the extent of apportioning responsibility for the accident to 80% to the driver and 20% to the first claimant and her husband (see [42]-[45] of the judgment).

Decision of Supperstone J [2014] All ER (D) 46 (Mar) Reversed.

Vaughan v Ministry of Defence [2015] EWHC 1404 (QB) Negligence – Duty to take care. The claimant Royal Marine injured himself whilst away on basic training during some free time given. The claimant brought a claim in damages against the defendant Ministry of Defence.

Vaughan v Ministry of Defence [2015] EWHC 1404 (QB) The Queen’s Bench Division dismissed the claim on the basis that there had been no breach of duty on the part of the corporal in charge of the claimant and his collegues.

The claimant was aged 27 and a member of the Royal Marines. After completion of his basic training he was awarded his green beret and posted to 45 Commando in Arbroath. In 2010, he and five other Royal Marines from his company flew to Gran Canaria in order to take part in a week’s Adventure Training Exercise. The exercise proceeded without incident until the last day of the trip when the marines were

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told that they were free to do what they wanted. What the claimant and his five colleagues had done was to go the beach area at Puerto de Mogan. Whilst they were there, the claimant went into the sea from the beach. When he was about waist deep in the water he executed a shallow dive into the sea. In doing so he struck his head on something below the surface of the water. As a result he sustained a fracture of his cervical spine which has resulted in incomplete tetraplegia.

The claimant’s case was that his injury was caused by the breach of duty of the defendant Ministry of Defence, the defendant having the same duty to him as would be owed to an employee by virtue of s 2 of the Crown Proceedings Act 1947. The court was only concerned with liability.

The issues were: (i) how the claimant sustained his injury; (ii) the duty owed to the claimant in the particular circumstances of the accident; (ii) whether there had been a breach of such duty as was owed by the defendant to the claimant. In the context of the alleged duty of care qua employer it was alleged by the claimant that the corporal in charge ought to have visited the beach before any marine swam there.

He should have looked at the sea to see if there were any obvious dangers such as rocks. It was also of note that Royal Marines were required to keep fit.

The claim would be dismissed.

(1)

The court was satisfied on the evidence that the claimant had run through

the shallow water near to the beach as he made his way away from the

beach. As the water became deeper and he was submerged up to his

thighs, he plainly was not able to run. He might also have slowed because

of the presence of other people in the sea. By the time the claimant had

executed his dive, he had slowed to walking pace. The claimant had

performed a ‘dynamic risk assessment’ which was the kind of judgment of

the conditions that might be expected of a sensible adult such as

the claimant when entering the sea from a pleasure beach (see [11], [12]

of the judgment).

A duty of care could arise in a military setting even when the activity

(2)

involved was not part of the serviceman’s duty or part of any adventure

training. The nature and extent of any duty would vary from case to case

(see [28] of the judgment).

All of the evidence showed that the claimant and his colleagues had not gone to the beach as part of their requirement as Royal Marines to keep fit. The fact that the defendant had not owed the claimant a duty of care qua employer in relation to the circumstances of his accident was not the end of the matter. The corporal had been under a general duty as the senior member of the crew to take reasonable 95

care for the safety of those on the boat. He had not been required to ‘ensure’ the safety of the crew. Rather he had been required to take reasonable care to guard the crew of the boat against foreseeable risks of injury (see [24], [27] of the judgment).

Radclyffe v Ministry of Defence [2009] All ER (D) 299 (Jun) considered.

(3)

It was established law that, it could not be said that only where the risk

was so obvious that the occupier could safely assume that nobody would

take it that there would be no liability. A duty to protect against obvious

risks or self-inflicted harm existed only in cases in which there was no

genuine and informed choice, or in the case of employees, or some lack

of capacity, such as the inability of children to recognise danger (see [36]

of the judgment).

There had been no breach of duty on the part of the corporal. The claimant had genuine and informed choice as to how he had entered the sea. He had not been acting in the course of his ‘employment’. He was not subject to any lack of capacity.

He assessed whether it was safe to do what he did before he went headfirst into the sea. He had misjudged the position with catastrophic results. The court was satisfied that there was no duty on the corporal to warn the claimant of the risks involved in diving from a standing position in shallow water (see [36] of the judgment).

Tomlinson v Congleton Borough Council [2003] All ER (D) 554 (Jul) applied.

HS v Lancashire Teaching Hospitals NHS Trust [2015] EWHC 1376 (QB) Negligence – Damages. Liability was admitted by the defendant hospital in respect of negligent failure by the paediatricians to recognise and to treat an infection which led to the development of meningitis. Various matters remained in issue for the court to decide. The Queen’s Bench Division decided on:

(i)

The amount recoverable for future care;

(ii)

The amount recoverable for case management;

(iii) The sum recoverable to cover the additional cost of holidays caused by

HS’s disability; and

(iv) Whether the cost of a hydrotherapy pool at HS’s home was recoverable.

In 2006, the claimant, HS, was born at the defendant hospital. When HS was born she was suffering from a streptococcal infection. Negligent failure by the paediatricians with the neo-natal care of HS to recognise and to treat the infection led to the development of meningitis. As a result, HS suffered catastrophic brain injury. She

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was eight years old and would never have any capacity to manage her own affairs as an adult. HS, by her mother and litigation friend JS, brought a claim in clinical negligence claim arising out of the post-birth management of HS. Liability was admitted in a letter from the defendant’s solicitors. Various heads of claim were agreed in advance of the hearing. Various matters remained in issue for the court to decide.

The matters on which the court’s decision was required were:

(i)

the amount recoverable for future care;

(ii)

the amount recoverable for case management; (iii) the sum recoverable

to cover the additional cost of holidays caused by HS’s disability; and (iv)

whether the cost of a hydrotherapy pool at HS’s home was recoverable.

The court ruled:

(1)

In terms of future care, the court was satisfied that the cost of two full time

carers during the day was recoverable forthwith and throughout HS’s

remaining childhood and teenage years. Further, the court was satisfied

that the need for a second night carer would be constant throughout

HS’s life and that there had to be provision for such care from that point

onward. The court was satisfied that it was reasonable and proportionate

for a second night carer to be provided as a sleeping night carer. The

division between day and night care, when HS was an adult, was a 14:10

division (see [18], [21], [22], [26] of the judgment).

Case management cost should not be the same irrespective of how the

(2)

care package was delivered. If an agency was supplying the carers, there

was bound to be less time spent by a case manager on that aspect

of HS’s overall care. As to the other issues the contingency figure was

bound to be a guesstimate rather than evidentially based and the

difference in relation to travel costs was modest. Whilst there was

evidence that a likely continuing case management cost was in the

region of £17,000 per annum, the court had also to have regard to

the hourly rates agreed by the care experts and the hours said by each to

be necessary. On the totality of the evidence, the court concluded that

the future care management cost until HA’s 19th birthday would be

£12,094 per annum with an annual cost thereafter of £15,360 (see [35] of

the judgment).

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(3)

HS’s disabilities meant that any holiday that she took would cost more

than were she able bodied. The parents returned to India each year

to visit the extended family which remained in their home state of Kerala.

It was impossible to say with any certainty where HS would take her

holidays in the future, particularly when she was an adult and when her

parents were nearing retirement age. The parents asserted confidently

that the trips to India would continue but the increasing difficulty of

transporting HS and accommodating her in India could not be ignored.

That she was entitled to the additional cost of those holidays wherever

they might be was not in doubt. A figure of £5,000 per annum was

appropriate to reflect the additional cost of holidays (see [41], [43] of the

judgment).

(4)

It was established law, that the guiding principle was whether a claim

advanced reflected a claimant’s ‘reasonable requirements’ or

‘reasonable needs’ arising from his or her negligently caused disability.

Just providing pleasure would not ordinarily be sufficient and some real

and tangible benefits would need to be demonstrated (see [45] of the

judgment).

The court was satisfied on the evidence that HS would make some use of a home pool. It probably would decrease as she grew older. In the circumstances the court did not consider that provision of a home hydrotherapy pool would be reasonable as a specific head of damage in the claim. There was a private facility nearby and costs of twice weekly visits to a private facility were recoverable. Such recovery was reasonable and proportionate (see [47]-[48] of the judgment).

A total award of £3,592,336 would be made (see [54] of the judgment).

Clinical Negligence Connolly v Croydon Health Services NHS Trust [2015] EWHC 1339 (QB) Negligence – Causation. The claimant brought a claim for damages for personal injuries and consequential loss arising from the performance of a medical diagnostic procedure, an angiogram, by a hospital for which the defendant had responsibility for the medical and surgical services at the hospital. The Queen’s Bench Division dismissed the claimants case on the basis that she had been adequately informed and had not withdrawn her consent.

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The claimant was 59 years of age and had for a long time suffered from a range of medical conditions including heart burn, indigestion, episodes of depression, and panic attacks and had for long been anxious about her health. In 2009, she complained to her GP of symptoms that were consistent with, or suggestive of, angina pectoris. She was referred to hospital and an echocardiogram was performed. It was suggested that the claimant undergo an angiogram. The claimant was provided with a consent form preparatory to performance. She was also sent an information sheet explaining the procedure in detail, and described risks involved with the procedure. At an early stage during the course of the procedure, a condition was detected in the claimant (an occluded LAD) such that the procedure had to be turned into an angioplasty and access via the femoral route was undertaken. In the course of the procedure, the claimant complained of pain in her right arm and of severe pain across her back, chest and jaw. The procedure was performed and the claimant brought a case against the staff at the defendant hospital for damages for personal injuries and consequential loss arising from the performance of the angiogram. It was the claimant’s case that when the procedure was carried out, the staff of the hospital had negligently failed to properly obtain her consent and that further, during the procedure, the staff had failed to halt the procedure upon her requiring it to be stopped. She alleged that she had not provided valid consent for the angiogram as she was provided with misleading information before the commencement of the angiogram. Secondly, that she withdrew such consent as she had given before access via the femoral route was undertaken and it was only after this time that she sustained a dissection of the LAD. The defendant disputed the case and asserted that at the material time, the claimant did not have capacity to withdraw consent. Further it was the defendant’s case that an event that threatened her life occurred before withdrawal of her consent such that the staff of the hospital were entitled to ignore any suggestion from her that she wished them to halt the procedure.

The issues were, amongst others:

(i)

whether the claimant was given sufficient and accurate information so that her consent was effective, or was it vitiated by inadequate or

misleading information;

(ii)

whether the claimant withdrew her consent to the continuance of the

procedure before access was attempted via the femoral route; (iii)

whether the claimant lacked capacity to withdraw her consent due to

the effects of medication given to her; and (vi) whether an event that

threatened the claimant’s life had occur before any withdrawal of her

consent, and if it had done what was the legal effect of that happening.

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The claim would be dismissed.

On the evidence, the claimant’s consent had not been vitiated by inadequate or misleading information. Further, the dissection and excruciating pain suffered by the claimant were suffered by her before access to her arterial system was gained via the femoral route. Nor had she withdrawn her consent to the continuance of the treatment. Her LAD was occluded, which had the potential to cause permanent damage or death and needed to be resolved without delay, and further angiography to examine the condition of the LAD was mandatory. Faced with that the probability was that she would have accepted the advice of those treating her, and would have consented to further angiography via the femoral approach. The claimant’s claim failed both on the issue of breach of duty and causation. (see [102], [106] [116], [120], [122], [124, [127] ] of the judgment)

Negligence and Contributory Negligence Buswell v Symes and another [2015] EWHC 1379 (QB) Negligence – Damage. The claimant suffered a severe head injury as a result of a collision between his motorcycle and a tractor and trailer driven by the first defendant. He brought a claim for personal injuries and damages. On a trial of liability only, the court found that the collision had been caused by the first defendant’s negligence, for which the claimant had been two-thirds contributorily negligent.

A collision occurred between a Yamaha motorcycle owned and ridden by the claimant and a tractor and trailer driven by the first defendant. The first defendant was executing a right-hand turn from a field onto the road when the claimant’s motorcycle proceeding east along the road collided with the tractor. The claimant, aged 40 at the time, had gone out for a ride on his bike and met up with a group of friends, including WG. WG gave evidence to the effect that they were travelling in single file along the road, the claimant in front of him. They had overtaken a tractor and a car, the car having overtaken the tractor. He said that when they overtook the car they were not going much above 60mph and not more than about 70mph.

They then came to a slight bend in the road when they slowed down a bit. The road went up a hill. There was no visibility over the brow of the hill until you got near the top and could see down the other side. He estimated that he was travelling about 60mph when he got near the top of the hill. He said that the claimant was going at a similar speed. As he came over the brow of the hill he saw a large tractor and trailer in the road. The tractor was pulling out from the left-hand side and was across the 100

road, blocking the carriageways. As soon as he saw the tractor he braked hard. He tried to steer to the left to avoid the tractor but the trailer that the tractor was pulling also blocked the verge. He went onto the grass and lost control. The claimant’s bike slid under the trailer between the wheels and came out the other side. He suffered severe injuries in the accident including a head injury he claimed for the injuries, loss and damage he sustained.

The main issue was whether and to what extend the defendant was liable for the claimant’s injuries.

The court ruled: The evidence of the first defendant had been unsatisfactory in material respects. The first defendant had appreciated the risks that he was taking when he had driven his tractor and trailer out onto the road from the exit he had used. He had foreseen the danger and had taken the risk or he had not foreseen it when he should have done.

Whichever it had been, he had been negligent. On the evidence, the claimant had been driving much too fast and had been at fault in driving much too fast under the circumstances. He had been two-thirds to blame for the collision that had occurred (see [47]-[48], [51], [53], [55] of the judgment).

The collision had been caused by the first defendant’s negligence, for which the claimant was two-thirds contributorily negligent (see [56] of the judgment).

Hames v Ferguson [2008] All ER (D) 152 (Oct) considered; Arnott v Sprake [2001] All ER (D) 287 (Feb) considered; Clayton v Lambert (administratrix of the estate of Paul Michael Clayton deceased) [2009] All ER (D) 223 (Mar) considered.

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Chapter 8 July 2015

The Claims Portal Update-Background Searches Background Searches: The Claims and Underwriting Exchange PI Database The final plank in the Government’s whiplash reform agenda was to ensure that before a claim was submitted previous claims checks on potential claimants were carried out and to confirm to the defendant that this has been done.

Despite what many felt was an anti-claimant measure (claimants solicitors checking on their own clients), they now have access for the first time to an insurance data base (the Claims and Underwriting Exchange PI Database or CUEPI) and can be used to indentify “risky” clients.

The RTA PAP has been amended and came into force on the 1st June 2015 as follows: 6.3A

(1)

Before the CNF is sent to the defendant pursuant to paragraph 6.1, the

claimant’s legal representative must undertake a search of askCUEPI

(website at: www.askCUEPI.com) and must enter in the additional

information box in the CNF the unique reference number generated by

that search.

(2)

Where the claimant has sent the CNF without the unique reference

number required by subparagraph (1), the defendant may require

the claimant to resend the CNF with the reference number inserted.

The period in paragraph 6.11 or 6.13 starts from the date the CNF was sent

with the unique reference number.

Where the claimant has sent the CNF without the unique reference

(3)

number required by subparagraph (1) and the defendant does not

require the claimant to resend the CNF pursuant to subparagraph (2), the

defendant must respond in accordance with paragraph 6.11 or 6.13.

Note: an anomalous feature of these changes is that they apply to all RTA PAP claims not just soft tissue ones even though the main target of the reforms was to tackle fraud and exaggeration with whiplash claims.

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The Medco Update A Debacle or Just Teething Problems?

The coalition Government was not content with the traditional way in which experts in RTA cases were to be instructed and set out boldly the need for change in a recent consultation paper: “This second phase of the programme focuses on the quality of the medical evidence produced in support of whiplash claims. We plan to introduce measures which will tackle the commissioning of medical reports to ensure any conflicts of interest are removed from the system and which will also provide for the accreditation of experts” : Edward Faulks QC MOJ However, the Medco system ( a digital nomination of experts) has quickly been “adjusted” by some medical agencies to ensure they now appear at the top of the search on the Medco portal.. The MOJ are now monitoring what is widely seen as abuse and this will give further weight to making the system a complete cab rank one. No consolation to PI practitioners who are struggling at the coalface and being paid less for more.

Clinical Negligence: Landmark Case on Informed Consent The recent case of Montgomery (Appellant) v Lanarkshire Heath Board (Respondent) [2015] UKSC 11 is a landmark decision in the area of informed consent and a shift towards a US style approach to the doctor patient relationship.

The Appellant, Nadine Montgomery suffered from insulin dependant diabetes mellitus. She gave birth to a baby boy on 1 October 1999 at Bellshill Maternity Hospital, Lanarkshire, Scotland. As a result of complications encountered during delivery her son was born with severe disabilities.

The doctor in charge of her pregnancy and labour failed to provide Ms Montgomery with advice about the risk of shoulder dystocia (the inability of the baby’s shoulders to pass through the pelvis) which would be involved in vaginal birth, of the alternative possibility of delivery by elective caesarean section to avoid such consequences, or that her baby may suffer serious harm as a result of a normal vaginal delivery, especially in light of her circumstances. This failure was particularly pronounced in this case as there is a 9-10% risk of shoulder dystocia in relation to woman who are diabetic. Ms Montgomery’s pregnancy was therefore regarded as high risk and one which required intensive monitoring.

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Ms Montgomery advised in evidence that if she had been told of the risk of shoulder dystocia she would have requested further information on the condition, including the possible risks and if she considered these risks to be significant, she would have asked her doctor to perform a caesarean section.

The Supreme Court held that a doctor has a duty “to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment and of any reasonable alternative or variant treatments” The Court held that a risk could be classified as “material” by determining whether, in light of the facts of each individual case, “a reasonable person in the patient’s position would be likely to attach significance to it” or “ the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.”

This judgement in essence now creates a legal obligation upon doctors to ensure that patients are told of all material risks associated with a particular surgery or treatment plan before making a decision. Thus their right to make an informed decision regarding their own well-being, in accordance with advice provided by their treating doctor, is strengthened and protected.

This ruling endorses the guidance provided to doctor’s by the General Medical Council regarding informed consent and provides clarity in this area. Medical Practitioners are now aware that by law they must advise their patients of any material risks associated with their treatment and any reasonable alternatives.

Lady Hale summarised the position “It is now well recognised that the interest which the law of negligence protects is a person’s interest in their own physical and psychiatric integrity, an important feature of which is their autonomy, their freedom to decide what shall and shall not be done”.

CPR Case Law Roundup Another Warning about Late Service of Evidence: Vladimir Sloutsker v Olga Romanova [2015] EWHC 545 (QB) Relief from sanctions was sought for late service of evidence. Applying the Denton test, the court held that the breach was serious. The explanation for the breach was “straightforward but unimpressive”; on the day the evidence should have been served, most of the day had been taken up with finalising the evidence, and the solicitor’s attention was then required on urgent matters in other cases. Nevertheless the when all of the other factors were considered (not at the extreme end of seriousness, not deliberate, no serious effect upon the efficient progress or cost of this or other litigation, very short delay in service) relief was granted with the court noting

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that post Denton, compliance is not an end in itself, a more nuanced approach is required.

How Prompt is Prompt When Applying TO Set Aside? : Priestley v Dunbar and Co [2015] EWHC 987 (Ch) Do we have a definition of promptness? This case is a useful reminder of the post -Denton approach to setting a judgment aside and the relevant factors.HHJ Beherens stated the following: “Promptness only relates to the period relating to the application to set aside the judgment. This is clear from the wording of CPR 13.3(2) and is confirmed in paragraph 30 of the judgment of Males J in Newland Shipping v Toba Trading [2014] EWHC 1986.

However, as Males J pointed out “promptness” needs to be assessed in context.

Furthermore delay prior to the entry of judgment can be taken into account as part of the general discretion to set aside a judgment. “ … I would accordingly construe “promptly” here to require, not that an applicant has been guilty of no needless delay whatever, but rather that he has acted with all reasonable celerity in the circumstances.” (per Simon Brown LJ in Regency Rolls v Carnall [2000] EWCA Civ 379) “… promptness now carries much greater weight than before. It is not a condition that must be satisfied before the court can grant relief, because other factors may carry sufficient weight to persuade the court that relief should be granted, even though the application was not made promptly. The strength of the defence may well be one. However, promptness will always be a factor of considerable significance, as the judge recognised in paragraph 27 of his judgment, and if there has been a marked failure to make the application promptly, the court may well be justified in refusing relief, notwithstanding the possibility that the defendant might succeed at trial.” (per Moore-Bick LJ in Standard Bank v Agrinvest [2010] EWCA Civ 1400)

Funding and CFAS Success Fees, Notice of Funding and Backdating of CFA’s The decision of Mr Justice Edis in O’Brien -v- Shorrock & the MIB [2015] EWHC 1630 deals with a number of important issues in relation to costs, notice of funding, the backdating of conditional fee agreements and relief from sanctions. There were some complex issues and anyone interested in this area must read the judgement in full but in summary the MIB appealed on several issues following a detailed assessment. The distinction between the MIB Untraced Drivers’ Agreement and an MIB Uninsured claim in the context of CFA’s is illuminating and excellent guidance given.

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Costs: PART 36, Partial Success and Entitlement?

Issues based costs orders and Part 36 - Webb v Liverpool Women’s NHS Foundation Trust [2015] EWHC 449 (QB) Partial success in litigation can mean only part of a claim succeeds in which case a costs order is likely to reflect the result. In Webb v Liverpool Women’s NHS Foundation Trust however, the claimant obtained at trial 100% of her claim. However, the High Court took the view that because she had alleged negligence on two bases (firstly that the obstetrician was negligent and secondly that the midwives were negligent) and had won only on the first it was right to make a costs order only in respect of the first basis. The claimant was as a result deprived of the Part 36 enhancements in respect of her costs relating to the second basis for the claim.

His Honour Judge Saffman took the view that there were two discrete allegations of negligence and that following Multiplex Constructions UK Ltd v Cleveland Bridge UK Ltd [2008] EWHC 2280 TCC it was right to make a proportionate costs order. The judge then reasoned that Part 36 did not alter that position and that following Thinc Group Ltd v Jeremy Kingdom [2013] EWCA Civ 1306 the consequences of Part 36.14 apply unless and to the extent that it is unjust that they should do so – permutations were permitted in order to do justice.

Practitioner News-NIHL is the New Whiplash!

On the 17th June the Law Society Gazette reported that the insurance industry had called for disease claims such as for noise-induced hearing loss (NIHL) to be subject to fixed fees amidst warnings that injured people are being failed by the current system.

The Association of British Insurers said the increasing number of hearing loss claims is adding to insurance premiums and holding up the progress of genuine claims.

In a typically controversial statement, James Dalton, ABI director of general insurance policy, said claims for hearing loss should be falling as health and safety measures improve.

‘The recent spike in claims can only be a result of claimant lawyers spotting the potential to earn sizeable fees from these cases after their sky-high earnings from whiplash claims were reduced,’ he said. ‘The claimant lawyers and claims management firms are intent on exploiting the new source of income which deafness claims represent, irrespective of whether the claims they put forward are genuine.’

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Love him or hate him he certainly has the ear of Government and perhaps we will see further changes to costs and experts in this area; watch this space.

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Chapter 9 August 2015

Coventry v Lawrence: A Sigh of Relief for Practitioners as the Supreme Court Endorses the Old CFA Rules Judgement The Supreme Court has handed down its long awaited decision in Coventry v Lawrence [2015] UKSC 50. A 7 Justice panel held, in a majority judgment given by Lords Neuberger and Dyson, that the CFA regime was compatible with the Article 6 right to of fair access to a court. Although the Court recognised that uplifts and ATE premium would often mean that overall the costs would be disproportionate, and the old rules and practice direction contained many other deficiencies, the fact is that how to best fund litigation was a broad question for Parliament and the final scheme was justifiable and so compatible with the Convention. This was because it was justified in light of the withdrawal of legal aid, was made after wide consultation and fell within the wide area of discretionary judgment for Parliament and the Government. The Court was alarmed at the practical consequences of finding the old scheme was not compatible : “The scheme as a whole was a rational and coherent scheme for providing access to justice to those to whom it would probably otherwise have been denied. It was subject to certain safeguards. The government was entitled to a considerable area of discretionary judgment in choosing the scheme that it considered would strike the right balance between the interests of appellants and respondents whilst at the same time securing access to justice to those who would previously have qualified for legal aid. It had to find a solution to the problem created by the withdrawal of legal aid. The government has now produced three different schemes. Each was produced after wide consultation. Each has generated considerable criticism. As already indicated, once civil legal aid was constrained to the extent that it was in 1999, it became impossible to come up with a solution which would meet with universal approval. This is relevant to the question whether the 1999 Act scheme struck a fair balance between the interests of different litigants “paragraph 83.

Commentary

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The Judgments are a wonderful analysis of the authorities and in some ways a depressing reminder to practitioners who had fallen foul of the old rules. There seemed little doubt that any other decision would have been given and perhaps this is the last word on the old CFA system which provided a good living for members of the Bar but was nightmare for anyone who was trying to make a living out of personal injury litigation. As my old principal use to say, “ never trust judges and barristers when it come to costs issues” as they are removed from the reality of a law firm and clients but this case now provides the certainty, if there was any doubt, over the lawfulness of the original scheme.

Secondary Victims: Definition of “Horrifying” In Ronayne v Liverpool Women’s Hospital NHS Foundation Trust [2015] EWCA Civ 588 [17.06.15], the Court of Appeal allowed an appeal against award to husband who witnessed his wife’s deterioration in hospital. The Court concluded that the events in question were not “horrifying” in the necessary sense.

The Claimant alleged that he suffered psychiatric injury as a consequence of seeing his wife’s deterioration and, in particular, seeing her connected to various machines and connected to a ventilator. Her arms, legs and face were very swollen. The Claimant later described her appearance as resembling the “Michelin Man”. His claim succeeded at first instance, where His Honour Judge Allan Gore concluded that the Claimant had suffered an adjustment disorder and awarded damages of £9,165.88.

This judgment provides clear guidance and a reminder to practitioners on the strict requirements for recovery by secondary victims and their application to claims against hospitals.

As Lord Justice Tomlinson stated in his judgment: “It follows that this was not in my judgment a case in which there was a sudden appreciation of an event. As Swift J found in Shorter, there was a series of events which gave rise to an accumulation during that period of gradual assaults on the Claimant’s mind. Ward LJ in Walters contrasted what there occurred with a “gradual dawning of realisation that her child’s life had been put in danger by the defendant’s negligence,” which would not have amounted to a sudden and unexpected assault on her mind. That in my judgment is an apt description of what here occurred – a gradual realisation by the Claimant that his wife’s life was in danger in consequence of a mistake made in carrying out the initial operation... In hospital, one must expect to see patients connected to machines and drips and …

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expect to see things that one may not like to see. A visitor to a hospital is necessarily to a certain degree conditioned as to what to expect, and in the ordinary way it is also likely that due warning will be given by medical staff of an impending encounter likely to prove more than ordinarily distressing...”

However, this case is far from clear cut as the Court of Appeal distinguished a similar Hospital case, Walters v North Glamorgan NHS Trust [2002,] where a claimant had succeeded at trial having observed, in a hospital setting, the consequences of clinical negligence. In Walters, a mother witnessed her infant child undergoing a fit. The Claimant’s case was not comparable with this, for the following reasons: (a) It did not have the necessary element of suddenness. Instead, there had been a gradual realisation by the Claimant that his wife’s life was in danger in consequence of a mistake made in the initial operation. At each stage in this sequence of events the Claimant was conditioned for what he was about to perceive;(b) What the Claimant saw on the two occasions was not horrifying by objective standards. Whilst it must have been both alarming and distressing, what is required to found liability is something which is exceptional in nature.

There are bound to be nice distinctions drawn and for practitioners even more uncertainty when giving advice.

Appeal Delays and New Guidance The Master of the Rolls has issued a new Practice Guidance effective 1 August 2015, which extends the time by which the Court of Appeal should hear appeals (Judiciary: Practice Guidance: Court of Appeal Hear-by-Dates) The covering note states that the extensions are “necessary for the efficient management of the work of the court”, given the 67% increase in permission to appeal applications and the 3% increase in appeals since the last Practice note was issued in 2003. The guidance replaces that note. The number of Court of Appeal judges has increased by 1 in those 12 years.

Claim Forms Are For Service: Another Reminder It is curious that having seen so many professional negligence claims over the past 25 years arising out of the service of claim forms, it is still surprising that practitioners will make assumptions about dates and addresses for service etc. There is a short but helpful report on Lawtel of the decision of Stewart J in Dzekova -v- Thomas Eggar PPL (QBD 17/07/2015) and a timely reminder during the holiday season of leaving matters to the last minute.

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The claimant issued a claim form against a firm of solicitors. Shortly before the expiry date the claimant’s solicitor telephoned the firm to find out the address for service as the firm had more than one office. He spoke to the managing partner’s personal assistant and, since she was told that the matter was confidential, she gave the managing partner’s address. The master held that the personal assistant had ostensible authority to bind the firm. The defendant appealed.

The personal assistant had not understood the issues that were addressed to her.

No-one at the defendant firm had represented that the assistant had authority in relation to service. The fact she had authority in relation to confidential documents was not sufficient. The appeal was allowed. Service of the claim form failed as there was no discretion to do otherwise.

Court Bundles: Another Warning from Jackson LJ In a judgment delivered in July, Jackson L.J. made some robust remarks about the quality of the appeal bundle. In Illife -v- Feltham Construction Ltd [2015] EWCA Civ 715 there was an appeal relating to a summary judgment order in multi-party litigation concerning fire damage. The Court of Appeal allowed the appeal.

However Jackson L.J. made some observations about the state of the bundle: “Part 5. The Court of Appeal bundle

50. Paragraph 27 of Practice Direction 52C sets out clear rules concerning

what should be included and – more importantly – what should be

omitted from bundles prepared for the Court of Appeal. In particular,

paragraph 27 (1) provides that the appeal bundle “must contain only

those documents relevant to the appeal”.

51. In the last TCC appeal which I heard (a complex case concerning the

construction of a road in Gibraltar) the parties were scrupulous in

complying with that rule. They thereby saved the court much valuable

time. Not so in the present case. Here the parties set about doing precisely

the opposite.

52. The present appeal bundle (ignoring the authorities bundle) contains 2,550

pages. This includes numerous duplicates and irrelevant documents. There

are at least two copies of Dr Goudsmit’s report and at least two copies

of the JCT contract. The arrangement of the correspondence is, to put it

charitably, chaotic. It is certainly not chronological. For example, I

managed to track down the architect’s important letter of 12th May 2011

at page 1807. His follow-up letter dated 16th June 2011 is tucked away

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at page 2148. Mr Dearie’s email of 26th September 2011 (about the gap

around the flue) is at page 359.Amongst the jumble of correspondence

there are copies of superfluous authorities. The brief chronology furnished

by the parties does not contain any page references to aid the hapless

judge as he/she struggles to piece together the story of what happened.

53. The appeal bundle should be an aid to the court, not an obstacle

course. The practice direction governing the conduct of appeals is not

difficult to understand. It serves a serious purpose. Experienced

practitioners should do what it says

54. In the present case, as I indicated during argument, whatever the

outcome of the appeal no party will be entitled to recover any costs

referable to the preparation of the bundle.”

THE NEW UNINSURED DRIVERS MIB AGREEMENT We now have with Motor Insurers Bureau claims a new Uninsured Driver Drivers Agreement, which came into force on the 1st August 2015 and which applies to accidents occurring on or after that date.

The object is to align UK law with EU Directives and the result is a more straightforward Agreement ; it can be found at www.mib.org.uk/Downloadable+Documents/en/ Agreements/Uninsured+Agreements/Default.htm After consultation with the MIB, the Department of Transport concluded that the procedural requirements imposed under Clauses 8 to 12 of the 1999 Uninsured Drivers’ Agreement are “cumbersome” and place “an undue burden on claimants as being conditions precedent to the liability on the part of the MIB”.

The new Agreement replaces these provisions with new, simplified provisions at Clauses 12 and 13.

The new Agreement includes requirements that:

•

Claimants provide such information about their claims as the MIB may

reasonably require

•

Claimants name the MIB as an additional defendant in the claim form from the outset

As a party to the action from the outset, the MIB should therefore receive all the relevant court notices and procedural documentation in the same way as the

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defendant motorist would. This removes the need for the claimant to take separate steps to notify the MIB. The new Agreement removes altogether the requirement of Clause 13 of the 1999 Agreement which required claimants, as a condition precedent to the MIB’s liability, to pursue the insurance details of the relevant driver, whether in person via the registered keeper, or by lodging a complaint with the police as set out under Section 154 of the Road Traffic Act 1988.

Claimants who voluntarily allowed themselves to be passengers in a vehicle where they knew or had reason to believe that the vehicle had been stolen or unlawfully taken or was being used without insurance are still not covered by the Agreement.

However, in the new Agreement, the clause which reversed the burden of proof when a claimant knew that the driver was not the registered keeper or an employee of the registered keeper, is removed.

The burden of proving that the claimant knew or had reason to believe that the vehicle had been stolen or unlawfully taken or was being used without insurance is on the MIB, but in the absence of evidence to the contrary, proof by the MIB of the following will be taken as proof of the claimant’s knowledge of these matters:

1.

the claimant was the owner or registered keeper of the vehicle or had

caused or permitted its use;

the claimant knew the vehicle was being used by a person who was

2.

below the minimum age at which he could be granted a licence; or

the claimant knew that the person driving the vehicle was disqualified

3.

from holding or obtaining a licence.

Other key elements include:

•

the appointment of independent arbitrators to arbitrate upon disputes in

relation to certain parts of the Agreement (previously dealt with by the

Secretary of State)

The removal of the “crime” exclusion following the recent Court of

•

Appeal decision in Delaney -v- Secretary of State for Transport

[2015] EWCA Civ 172, which held that the old agreement was

incompatible with EU Directives notwithstanding the fact that in earlier

case of Delaney v Pickett compensation had been refused by the MIB

as they had invoked the clause where contending “he knew or ought

to have known that the car was being used in the course or furtherance

of crime, namely to transport cannabis for the purpose of drug-dealing”.

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Chapter 10 September 2015

QOCS Protection: No Reasonable Cause of Action In Wall -v- British Canoe Union, an unreported decision of HH Judge Lopez in the Birmingham County Court on the 30th July 2015, we have a salutary reminder to claimant practitioners that QOCS protection does not apply in a case where an action is struck out when a claimant has shown no reasonable grounds for bringing the proceeding.

Briefly, the claimant’s husband was tragically killed whilst canoeing. She brought an action against the British Canoe Union claiming that it was negligent in that a published guide gave a recommended route down a weir in question whereas earlier guides had recommended portaging the weir. The defendant applied to strike out the claim and obtain summary judgment of the claim on the grounds that there was no duty of care in law and no reasonably arguable claim on causation.

The QOCS provisions apply to claims brought under the Fatal Accidents Act and Law Reform (Miscellaneous Provisions) Act 1934 (Rule 44.13(1). HHJ Lopez said that was no duty of care and struck out the statement of case. He made it clear that if there was a duty of care here, it would mean every publisher/ author of a guidebook could be open to a claim.

Remember that orders made against the claimant may be enforced to the full extent of such orders without the permission of the court where proceedings have been struck out on the grounds that (a) the claimant has disclosed no reasonable cause of action;(b) the proceedings are an abuse of the court’s process; or (c) the conduct of the claim by the claimant, or someone acting on the claimant’s behalf, is likely to obstruct the course of justice.

Where the claimant’s case has been struck out for showing no reasonable cause of action a costs order may be enforced in full.

In this case the action was struck out as showing no reasonable cause of action and the claimant was ordered to pay costs in full (which were stayed pending any appeal).

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It is likely that defendants will use the interlocutory process to knock out weak liability cases by contending that there is reasonable cause of action. The courts will need to be astute in striking clear cases where liability cannot be established cases otherwise the central plank of the Jackson reforms in personal injury cases will be severely undermined.

Practitioners also need to make it clear to clients of the risks in tricky cases otherwise they could end up with a professional negligence claim: see the recent High Court case of Thomas -v- Albutt [2015] EWHC , which dealt with the duty to warn clients of litigation risks.

Children and Additional Liabilities: A Red Card for Practitioners?

I have warned elsewhere of the dangers of setting automatic success fees in personal injury cases and taking out unnecessary ATE premiums. In The Weighted Dice-Opinion Piece for NLJ in April 2014,-I stated the following: ” Practitioners have been left to their own devices and we now have a number of firms automatically setting success fees at 100%. It works like this: client has simple RTA portal claim and portal costs are £500, but you set a success fee of 100%. The client gets £2,000 in damages and you get another £500. You take a simple employers’ liability case where liability is admitted quickly and set a success fee of 100%. The client gets, say, £4,000 and you get another £900...

It’s called doubling your money, but unlike casinos the dice are weighted. When the roulette ball rolls it always lands on the same number, number 100. There are those who may try to justify this practice, but remember: we owe clients a fiduciary duty to act in their best interests and it cannot be right that a client gives informed consent in such circumstances” We now have in an infant case, A & B -v- The Royal Mail Group [2015] EW Misc B24(CC)(14th August 2015), a scathing judgement by a District Judge ( reported in BAILII) of the setting by a claimant law firm of a 100% success fee and the purchase of a ATE premium in a simple RTA case.

The relevant parts of DJ Lumb’s judgment are as follows:

“It was clear in hearing from MS that he believed that Scott Rees had advised

him that the deduction of the success fees and ATE insurance premiums would

be automatic. This is confirmed by paragraph 25 of the skeleton argument

“The Litigation Friend accepted [the liability to pay the success fee] in the

knowledge that they (sic) would be indemnified out of the successful recovery

of damages on behalf of the Claimants.” MS did not appreciate that the

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true position was that he had a potential personal liability to Scott Rees for

these sums totalling £1865 and that this sum would only be deducted from

the children’s damages if the Court gave permission as part of the approval

process. The position where that adult is a Litigation Friend acting for a person

who lacks capacity such as a child is subtly different as if it is proposed that

those costs irrecoverable from the other side are sought to be paid from the

child’s damages then before any payment can be made the Court has to

approve it under CPR 21.12. While the adult Litigation friend may remain liable

under the retainer for the full costs to the solicitor (subject to any waiver) the

Court will only give approval to the deduction from the damages if the costs

have been reasonably incurred and are reasonable in amount...

The suggestion that solicitors would not undertake the work without the

enhancement of a success fee in (at least in as much as it relates to simple

and straightforward cases) is unfounded by the experience of the Courts in

dealing with the many thousands of these cases throughout the country. On

the contrary, it seems there are many solicitors who are quite prepared to do

the work without a success fee. There is no compulsion on solicitors to do the

work. They may choose not to do so if it is uneconomic for their firm. Other firms

will do that work instead.

No doubt any competent solicitor would advise a prospective Litigation Friend

that other solicitors may be prepared to accept instructions without insisting

upon a success fee. Such advice would surely form part of the professional

requirements in the Solicitors Code of Conduct when discussing funding

arrangements with a prospective client”

It is curious that the learned DJ stated that the experience of the courts was that firms were not claiming success fees when in reality, from my experience, is that 95% of firms are doing so. He also went perhaps too far in saying that firms should, if they wish to claim a success fee, tell the litigation friend that there are firms who will do this work without charging a success fee!

This is a controversial judgement but confirms my view of the continuing judicial distaste of success fees in straightforward personal injury cases. The lesson is that if you are going to charge over the 10% mark you need to justify this.

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Case Law Update Sinclair (a Protected party by her Litigation Friend) v Joyner [2015] EWHC 1800 (QB).

As the Defendant drove past the oncoming, cycling Claimant there was an alleged collision between the offside of the bicycle’s front tyre and the rear offside tyre of the car, causing the Claimant to fall to the right and on to the road, striking her head and suffering serious injuries. The driver was found negligent in not responding to the hazard that presented in the road: she should have stopped the car to allow the cyclist to safely pass.

The Claimant was found to have contributed to the accident by her own negligence by cycling too closely to the middle of the carriageway. Whilst a failure to wear a helmet had been an alleged contributing factor, it was not relied on at trial and was therefore disregarded. The reduction for contributory negligence was determined at 25%.

Mrs Justice Cox stated the following: “Motorists have to anticipate hazards in the road, particularly from vulnerable road users, and to be ready to react to them. In my judgment the Defendant cannot be relieved of that duty of care by seeking to blame the Claimant, who was obviously in difficulty, for deviating into her side of the road and colliding with the rear offside tyre, after the front of the car had gone past her. The fact that a collision occurred demonstrates that there was not sufficient room for her to pass the Claimant safely, and that the Defendant’s assumption to the contrary was in error. She ought to have appreciated that her car was too close to the centre of the road for her to have passed this cyclist safely”.

In Vaughan v Ministry of Defence [2015] EWHC 1404 (QB), the High Court held that an employer’s liability does not extend to employee’s activities in his free time, even if the employee was abroad at the time on trip organised by his employer.

This case considers the boundaries of an employer’s duty of care and is likely to prove useful to defendants faced with claims made by employees arising from accidents occurring during periods of free time or while on trips abroad.

The Claimant Royal Marine suffered injuries leading to incomplete tetraplegia as a result of a shallow dive carried out on a public beach in the Canary Islands. The Claimant was in the Canary Islands as a participant in an Adventurous Training sailing trip organised by the Royal Navy. During a period of free time the Claimant went the beach with fellow marines.

The Claimant argued that the Ministry of Defence owed him a duty of care to warn him about the dangers of diving into shallow water because his visit to the

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beach during the Adventurous Training trip was in the course of or incidental to his employment. As a Royal Marine the Claimant was required to maintain a high level of physical fitness and it was argued that by swimming at the beach the Claimant was complying with this instruction.

Mr Justice William Davis held that the Claimant had chosen how to spend this free time and that he visited the beach in order to relax and enjoy himself. Whilst the Claimant did swim at the beach, he did not do so as part of the requirements of his employment.

It accepted the Defendant’s contention that there was no duty on the part of the Ministry of Defence to risk assess activities that took place outside of the scope of the employee’s employment. The Court also had no hesitation in distinguishing the main authority on which the Claimant relied: MoD v Radclyffe [2009] EWCA Civ 635. In that case, Lt Radclyffe, whilst on a training exercise in Germany, had sustained serious injuries after being pressurised by a superior officer into jumping from a bridge into a lake 65 feet below. William Davis J held that the case had no application to Mne Vaughan’s claim: the expedition leader was not at the beach when the accident took place, there was no pressure on Mne Vaughan to undertake the dive that he did, and in any case the activity was of an entirely different nature from the leap undertaken by Lt Radclyffe.

Medco: There May be Trouble Ahead...

The new system under which all expert reports in soft tissue (not just whiplash cases) must be commissioned was effective from the 6th April 2015, but it has been plagued with problems.

The Ministry of Justice sees the site, which randomly allocates experts, as the way to ensure independence in the provision of medial reports, removing any perceived financial interest between the parties involved.

Before it even went a live, a group of seven personal injury firms, backed by five MROs, prepared a judicial review challenge to the scheme, claiming it will impede a claimant’s ability to prepare their own case and ultimately deny access to justice to those with personal injury claims.

Apart from technical problems in the early days the Ministry has now disclosed “concerns” relating to the behaviours exhibited by some MROs which “have the potential to undermine both the government’s policy objectives and public confidence” in MedCo.

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In a statement posted on the MedCo website, Richard Mason, Deputy Director for Civil Justice at the Ministry of Justice said that established high volume MROs have registered multiple new smaller MROs : “The system was neither designed nor intended to permit this type of behaviour” Mason assured that MedCo’s application of the qualifying criteria, its user agreements and ethics policy, is able to address the abuse. And the site informs readers that MedCo has begun auditing registered companies to ensure compliance.

It notes: ‘The MedCo board recognises that this is a rapidly evolving market and that some behaviours, may undermine the original policy intention...Processes will be updated in the future to address these concerns and users will be notified.”

The Ministry said it will “follow developments closely” and conduct an evidencebased review of how the new system is operating “with a view to making adjustments if necessary”.

The Medco system is here to stay but there are bound to be changes to prevent MROs from developing their practice and/or moving between tiers. There is bound to be trouble ahead for a number of MRO’s!

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Chapter 11 October 2015

Social Media and Litigation Defendant insurers and their advisors routinely check social media sites to see if there is anything that may call into question the claimant’s credibility. The judgment of Judge Seymour in Cirencester Friendly Society -v- Parkin [2015] EWHC 1750(QB) provides another example of how the social media can be a powerful weapon in litigation Here we have a case of a defendant helpfully providing compelling evidence against himself.

The claimant friendly society commenced an action for a declaration that it was not liable to pay sums to a “member” due to non-disclosure. The Financial Ombudsman had, twice, held that that the claimant should pay. On the second occasion the claimant refused to pay and issued proceedings. The defendant did not really engage in the proceedings. However it was necessary for the claimant to obtain a judgment.

The learned judge stated: “Nemesis overtook from Mr Parkin most dramatically because, like so many people nowadays, in particular those who seem minded to seek to perpetrate frauds, he seemed incapable of keeping off the Internet and sharing the true nature of his activities through social media”...

“I set aside the award made by the Financial Ombudsman Service on 10 September 2010 and I declare that Mr Parkin obtained the award by the Financial Ombudsman Service on 10 September 2010 by fraud and, as a consequence, that award is, and was, unenforceable. I set aside the award made by the Financial Ombudsman Service on 25 July 2012 and I declare that the defendant, Mr Parkin, obtained that award by fraud and that, as a consequence, that award is unenforceable”.

Relief from Sanctions: Recent Cases For those who think that the effects of Mitchell have completely dissipated think again. In Ali v CIS General Insurance (2015), unreported, Judge Cryan sitting in Central London County Court upheld the decision of District Judge Coonan, to strike out the claimant’s claim for failure to comply with an order for specific disclosure.

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Applying the three stage test set out in Denton, the Judge concluded that the claimant’s breach of the order was real and far from trivial, that the claimant had failed to give an explanation for the failure to comply with the order and that the claimant’s failure to comply threatened the trial date that had been set. The Judge also concluded that the District Judge’s order, striking out the claim was within in her discretion.

On the other hand, relief from sanctions following late service of the notice of funding was granted by Mr Justice Simon in Jackson -v- Thompson Solicitors (& others) [2015] EWHC 549 (QB).

Here the claimant had lost an action against multiple defendants and was ordered to pay the costs. One of the defendants (Lord Prescott) entered into a CFA with his solicitors. Notice of funding was given on the 3rd May 2012 which was late (either three or seven weeks late).The claimant took the point on assessment and also took the point that no formal notice had been given of the CFA between Lord Prescott and senior and junior counsel, although this had been notification in correspondence the relevant dates had not been given.

The delay in serving notification of the CFA was neither serious nor significant. It had no impact on the conduct of litigation, nor had it impacted on other court users. The claimant raised no objection to the notice when it was sent and had not indicated that he was prejudiced by the delay. The court was concerned with the seriousness and significance of the breach and the claimant had not been able to point to any material prejudice caused by the delay. Looking at the issues, including issues of proportionality and compliance, relief from sanctions should be granted.

Fundamentally Dishonest and Exemplary Damages An experienced Circuit Judge, HHJ Gregory ( I have had PI trials before him), has given judgement against two Claimants who were found to be fundamentally dishonest and were ordered to pay exemplary damages of £3,000 as well as indemnity costs after being found to be ‘complicit in a criminal conspiracy to defraud’ Royal & Sun Alliance Insurance plc (RSA). Husband and wife, Parveen Akhtar and Mohammed Khan of Birmingham, had sought damages for personal injury following a road traffic accident on 17th July 2013 when Rebecca Ball, a teacher insured by RSA collided with the rear of a vehicle being driven by Mrs Akhtar.

It was claimed that Khan was a front seat passenger in the vehicle at the time of the accident.

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This case is a rare example of a court, not only dismissing a claim on grounds of fundamental dishonesty and suspending QOCS, but also awarding the defendant exemplary damages: Akhtar & Khan v Ball Walsall County Court 10.7.15 Before HHJ Gregory, reported by DWF solicitors.

Children and Motorists: Guidance on Contributory Negligence In last month’s newsletter I referred to the High Court case of Sinclair (a Protected party by her Litigation Friend) v Joyner [2015] EWHC 1800 (QB) involving a cyclist.

Another vulnerable group are of course children and I thought it was a sensible to go back to basic principles to remind readers what needs to be considered.

The landmark Scottish case that was heard earlier this year by the Supreme Court, Jackson-v-Murray, [2005] PIQRP 249 deals directly the principles for the assessment of the proportions of liability of drivers of vehicles and pedestrians with whom they come into collision. Lord Reed in his judgment summarises succinctly the facts: “A school minibus draws up on a country road on a winter’s evening. Two children get off. One of the children tries to cross the road. She steps out from behind the minibus, into the path of an oncoming car. The driver is driving too fast: he has seen the bus, but has made no allowance for the possibility that a child might attempt to cross in front of him. He is not keeping a proper look-out, and does not see her, but he is going too fast to have stopped in time even if he had seen her. His car hits the child, causing her to sustain severe injuries. If he had been driving at a reasonable speed, and had been keeping a proper look-out, he would not have hit her.”

The trial judge found that the principal cause of the accident was the recklessness of the pursuer in attempting to cross the road when it was dangerous to do so.

However, the defender, seeing the school bus stationary, ought to have foreseen that a child might attempt to cross the road. As the car was only 30 to 40 metres away when the pursuer stepped out from behind the bus, contributory negligence should be fixed at 90%. On appeal, it was held that one had to take into account the lack of experience of a 13 year old child, who would not necessarily have the same level of judgment and self-control as an adult. Furthermore, it was clear that if only the car had been travelling at a lower speed, the accident would not have happened. They reduced the responsibility of the pursuer to 70%. On a further appeal to the Supreme Court, that court, by a majority of three to two, reduced the element of contributory negligence to 50%.

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In his judgment Lord Reed reviews and approves some of the well-known authorities on s.1(1) of the Law Reform (Contributory Negligence) Act 1945 which deal with the proper approach to assessing the extent to which an injured party’s damages should be reduced. This is the starting point directing a court to have regard to a claimant’s share in the responsibility for the damage and to reduce the damages to such extent as the court thinks just and equitable. In Baker v Willoughby [1970] AC 467 the House of Lords had confirmed that causation and blameworthiness were the two elements in any assessment of liability under the Act. It was in that case that Lord Reid stated that it was quite possible for a motorist to be very much more to blame than a pedestrian due to the fact that a pedestrian while crossing a road has to look left and right as well as forwards while a driver does not. In addition, the pedestrian is generally not posing a danger to anyone else whereas the consequences of a driver travelling at considerable speed relaxing his observation may be catastrophic.

The recent development of that approach by Hale LJ in Eagle v Chambers[2003] EWCA Civ was endorsed in Jackson. In that case Hale LJ found that the respective causative potency of the parties’ actions and their respective blameworthiness had to be considered when apportioning liability. In particular, the potential “destructive disparity” between a pedestrian and the driver of a vehicle meant that the courts placed a higher burden on drivers. That reflected the potentially dangerous nature of driving.

The Supreme Court’s decision now confirms that these cases, and perhaps most significantly the views of Hale LJ in Eagle v Chambers, set out the proper approach to apportionment. This case was neither a classic ‘stepping out’ type of case (like Ehrari v Curry [2007] EWCA Civ 20) nor was it an Eagle v Chambers type case where the pedestrian was in the driver’s line of vision for long enough to have easily avoided her.

Inquests are Not Civil or Criminal Trials In Wilson -v- HM Senior Coroner for Birmingham and Solihull [2015] EWHC 2561 (Admin) l the Divisional Court rejected an application for judicial review of a Coroner’s narrative verdict stating: “An inquest is the culmination of an investigation which must determine how, when and where the deceased came by his death: section 5 of the 2009 Act. As Sir Thomas Bingham noted in R v North Humberside Coroner, ex parte Jamieson [1995] QB 1,it is for the coroner fully, fairly and fearlessly to investigate deaths and it is for the coroner to set the bounds of the inquiry. An inquest is an inquisitorial process and not

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comparable to a criminal trial or civil proceedings. Lord Lane CJ memorably stated in R v South London Coroner, ex parte Thompson (1982) 126 SJ 625, DC...

Fairness in an inquest must be fashioned in an environment where there are no pleadings and in which those given leave to appear as interested persons do not have a case to put. The evidence at inquests often takes an unexpected turn and calls for a degree of flexibility in the procedure to be followed as a consequence.

The rules of evidence applied in criminal and civil proceedings do not apply.

Questions of fairness to those involved in inquest proceedings must be judged against all these essential features and also in the context that the statutory scheme prohibits a finding of criminal liability on the part of a named person, or of civil liability.”

Witness Evidence, Letters before Action and Pleadings His Honour Judge Lopez has been very busy in the Birmingham County Court (see last month’s newsletter and the case of in Wall -v- British Canoe Union). In the recent case of Bartlett -v- The English Cricket Board Association of Cricket Officials [2015] WL 5037730, he provides us with some useful points on the reliability of witness evidence after the passage of time and the dangers of inconsistency.

The claimant brought a personal injury claim after he was injured when fielding in a cricket match and performing a sliding stop. The basis of his claim was that the pitch was unsafe to play and that the match officials had negligently allowed cricket to be played on a ground that was too wet.

In finding against the claimant, he stated: “I find the account given by the Claimant in the letter before action and his detailed statement in these proceedings as to the way in which he executed the sliding stop technique was accurate and that which he gave in his oral evidence was incorrect.

“It is a matter of common sense and experience that, in general, the recollection of a witness is likely to be better closer to the index incident than further from the event in question. Put bluntly, memories are likely to fade and the more time that passes the greater that risk. Further, it also the case that, in general, a witness’ recollection of an event is likely to be better if it involves an unusual incident or an unfolding series of events rather than an occurrence which is of no real interest at the time and only later becomes relevant or important.”

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“There is a real danger that with the significant passage of time a witness may replay the events in their mind resulting in a greater chance that their “recollection” becomes influenced by hindsight, sympathy or extraneous materials. In such a case there is a real risk that the witness may recount what they consider to be a genuine recollection of the events although the same has been affected by the passage of time and tainted by hindsight”.

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Chapter 12 November 2015

CPR 36: OFFER LETTERS At a recent lecture I gave with Professor Regan in Manchester, we both shared similar stories of practitioners who recounted the same story: personal injury claimant firms were routinely failing to comply with the rules when making offers to settle under CPR36.

Remembers of course that CPR 36 is a highly prescriptive and self-contained code: Gibbon v Manchester City Council [2010] 1 WLR 2081.

The decision of Mr Justice Morgan in Tim-Alexander Gunther Nikolaus Hertel -vArtemis International Sarl [2015] EWHC 2848 (Ch) although a complicated nonpersonal claim is worth reading. The fact that the offer made was not a Part 36 offer (despite both parties calling it such and, initially, agreeing it was) made a major difference in relation to the award of costs.

Morgan J stated: “The Claimants sought to avoid this prima facie result by relying on r. 36.3(2) which provides that a Part 36 offer may be made at any time, including before the commencement of proceedings. The offer letter in this case was not sent before the commencement of proceedings so that this rule has no direct application in this case. However, it was argued that if it were right that it is possible to make a Part 36 offer in relation to a claim before proceedings are commenced then it followed that for the purposes of r. 36.2(2)(d), the references to the whole of the claim or to part of the claim included references to a claim which had not been brought when the offer was made but which was subsequently brought. It was then submitted that (on the basis of my findings as to when the amendment to the claim was made in this case) the offer was made in relation to a part of the claim which although it was not part of the claim at the date of the offer, it later became part of the claim when the Deputy Master granted permission to amend. It was said that what had happened was essentially what was covered by r. 36.3(2). I do not accept that argument. R. 36.3(2) does not in terms cover this case. To deal with the circumstances of the present case, there would need to be a further provision which extended that rule to a case like the present. As Part 36 is a highly prescriptive and self-contained code,

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it does not seem to me to be right to add in further provisions on the basis that they would have an analogous effect to the express provisions of Part 36”

PART 36 OFFER BY CLAIMANT ATTRACTS INDEMNITY COSTS ONLY FROM THE DATE OF EXPIRY OF THE OFFER In RXDX -v- Northampton Borough Council [2015] EWHC 2938 (QB) Mr Justice Colin Mackay revised an order in relation to indemnity costs following a Part 36 offer.

On the 12th March 2015 the claimant offered to settle the issue of liability by accepting 80% of damages. The defendant did not accept the offer and the action proceeded to a trial on liability where the claimant was wholly successful. The judge invited written submissions as to costs and ordered that indemnity run throughout the case. The judge did not make an order under 36.14(3) (a) and (d) (additional interest and additional damages) and now set out in CPR36. 17 (4) as he felt it would be unjust.

It was appropriate for a court not to order that all the provisions of CPR 36.14 apply if it felt it was unjust to do so.

However, he held that indemnity costs should run from the date of the expiry of the offer and not throughout the entire action.

ALLOCATION AND FIXED RECOVERABLE COSTS UNDER CPR 45.

In Quader -v- Esure Services Limited (Birmingham County Court 15th October 2015) His Honour Judge David Grant considered the issue of whether fixed costs applied to a claims portal case that was transferred to the Multi Track.

The judge considered a case where the value of a road traffic claim was limited to £15,000. The defendant alleged that the accident was deliberately induced by the claimants. The action was allocated to the Multi Track and the parties ordered to file costs budgets. When the matter came before the District Judge it was held that: “CPR 45.29A fixed costs will apply to the claimant’s costs. Costs management does not apply to this case.”

The claimants appealed to the Circuit Judge. That appeal was dismissed. The judge dismissed the claimants’ appeal against an order that Fast Track fixed costs applied to a personal injury case that was allocated to the Multi Track.

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The judge held that “The text of CPR rule 45.29A is quite clear: it states that Section IIIA of Part 45 will apply when a claim is started under the RTA Protocol, but no longer continues under that Protocol or the stage 3 procedure set out in Practice Direction 8B.” The judge rejected an argument that the rules had to be interpreted so as to implement the Jackson reforms. There were cases where parts of the proposals were not accepted by the Rules Committee. (For instance the wording of CPR 3.9 is materially different to the proposals from Jackson LJ).

There was no ambiguity or lack of clarity in the wording of the rules which requires a judge to construe or interpret them in a purposive manner. ”Instead the task is simply to apply the plain meaning of those words and expressions.”

FAILURE TO GIVE DISCLOSURE IN RELATION TO LATER ACCIDENT: RELIEF FROM SANCTIONS REFUSED In Ali -v- CIS General Insurance [2015] WL 5037781, His Honour Judge Cryan upheld a decision striking out a claim for failure to comply with disclosure.

The claimant was bringing a claim for damage to her car. There were no injuries.

The claim related to damage to the car, recovery, storage and credit hire charges.

The claimant’s husband was driving the car.

A week after the accident the claimant was involved in a second accident, driving another vehicle, this accident was her fault.

The claimant had not put forward any reason for failing to comply with an order for disclosure.

The District Judge struck out the claim on the defendant’s application.

The Circuit Judge, on appeal, held it the District Judge acted within her discretion and did not allow the claimant’s appeal.

The claimant had not, expressly, made an application for relief from sanctions, however the court considered that the Denton principles were relevant to the overall exercise of the discretion.

The learned judge stated: “The failure to comply with the order for disclosure was a serious failure to comply with a specific order. The disclosure sought was rightly sought and rightly ordered”

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ASSIGNMENT AND CFA’S: A SETBACK FOR LAW FIRMS? In recent years, transferring files either as a fee earner leaves to join a new practice or where the practice closes or sells its personal injury WIP, has become commonplace.

It’s an area I am familiar with and one where I have to declare an interest in as I spend half my time working with firms who are selling and buying caseloads and it is a market which has grown rapidly for all sorts of reasons (see www.accquiralegal. co.uk). However, the legal basis of such transfers or specifically the burden of the success fee where there is a pre-April 2013 CFA has always been a grey area.

Simon Edwards, barrister, of Thirty Nine Essex Street explains: “To have any chance of maintaining the ability to collect from a losing party a success fee in relation to work done after 31 March 2013 when the client moves firms after that date, you must try to assign the CFA. That was allowed in Jenkins v Young Brothers Transport Limited [2006] 1 WLR 3189 (a case that has not escaped criticism).

“The danger is that the ‘assignment’ may be interpreted as a novation (so a new contract) and, if so, will have to comply with the post-31 March regulations. If it did not comply by (say) specifying too high a success fee in a personal injury case, it would be unenforceable. Also, the losing party will not have to pay any success fee under the new agreement.

“The assignment must look like an assignment; so the temptation to introduce new terms to ‘improve’ the old ones or to incorporate the new firm’s own standard terms and conditions should be avoided.

“Also, you should include a fall-back provision just in case the ‘assignment’ is held to be a novation. Such a provision should provide that any new contract is one that complies with the new regulations”: New Law Journal March 2014.

The law relating to the assignment of contracts is a complex but in simple terms the general rule is that there can be an assignment but not for so –called “personal contracts”. Most of the case law arises out of performing artists or publishers ( see Don King and Frank Warren’s dispute back in 2000) and seems completely alien to a routine CFA client where they rarely see a lawyer or if they do it is usually a paralegal.

Nonetheless, we now have an important decision from Liverpool County Court, Denise Jones –v- Spire Healthcare Limited that seems to adopt a Victorian approach to such an assignment of a pre-April CFA.

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In Jones, a well-known firm in the Liverpool area purchased the WIP of several large firms who had run into financial difficulties. A number of cases were transferred and existing CFAs were assigned.

District Judge Jenkinson, who is the regional costs judge, found that these assignments had not been motivated in any way by particular trust and confidence in a particular fee earner, and therefore the purported assignment fell outside the exception established in Jenkins, meaning that such assignment was not possible and that what had actually occurred was a novation.

Moreover, as that novation had occurred after 1 April 2013, and was contrary to the Conditional Fee Agreements Order 2013 for want of spelling out that the success fee would not exceed 25% of damages for pain, suffering, loss of amenity and past pecuniary loss, no costs were recoverable under the CFA from the date of novation.

I understood -on good authority -that Jones is being appealed, possibly being leapfrogged straight to the Court of Appeal with hopefully an authoritative decision in the next few months. Hopefully the Court of Appeal will grasp the practical reality here of the commercial issues and adopt the approach which was advocated by Professor Bridge in an illuminating article several years ago when he said “The law should be slow to conclude that particular categories of contract invariably give rise to non-assignable rights”. Watch this space!

CLAIMS PORTAL NEWS There are two news items worth mentioning in this newsletter. Firstly, the news picked up by the Law Society Gazette that claimant lawyers are set to have to pay a fee for every new claim lodged with the portal from next year, it has emerged.

Claims Portal Ltd has contacted solicitors outlining plans for 2016, with the changes divided into two phases.

The first phase, in April, will see interim improvements to the service including more functions for users and easier access to ongoing claims.

The second phase, scheduled for December 2016, will include the introduction of ‘User Pays’, meaning the company will apply a charge to claimant representatives using the portal at the point of submitting a new claims notification form.

A spokesman for Claims Portal said the charge is likely to be between £1 and £3 per claims notification form, which will be non-refundable.

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It will not be recoverable by claimants from compensators as a disbursement and will be used to cover the cost of the portal and related services.

There is no further detail on how much claimants will have to pay to begin claims, but it is a move that is unlikely to be welcomed by a sector that has faced significantly reduced fixed costs in recent years. With already tight margins, this is another additional cost for those firms undertaking this work who no doubt will have to pass this onto the client.

The second piece of news worth reporting relates to the judicial review of the controversial Medco system for obtaining medical reports. Mark Jones, a partner at north-west firm JMW Solicitors, who had been acting for the PI lawyers’ group, confirmed at the end of October that a decision had been taken to discontinue attempts to seek a review.

‘Despite agreement on the merits of the action, those firms involved simply came to the conclusion that the costs which they would incur in pursuing the case were prohibitive,’ said Jones.

‘Even if the action had been successful, it is now likely that MedCo itself would have remained and merely incorporated such changes as necessary to abide by a court ruling in our favour.’

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