Legal Watch: Personal Injury 19th June 2015 Issue: 066
Public Liability In a week in which the fallout from the Alton Towers accident is
still being felt, the case of Lowdon v Jumpzone Leisure UK Ltd (2015) EWCA 586 will no doubt attract interest.
The defendant/appellant operated a ride known as the
‘Hyper Jump’, which involved customers being strapped
In this issue: • Public Liability • Expert Evidence
into a harness with elastic ropes on either side. The operator
• Costs
rider signalled they were ready. Once released, the rider was
• Article – Heavy fines likely in the future for large
counted down from three and released the ropes when the propelled into the air and bounced up and down for a matter
of seconds. The claimant/respondent alleged that he was released without warning on his second ride. He said that he
was not aware of any injury at the time, but found his neck to be stiff and painful over the following few days. He then suffered a loss of vision and was found to have suffered a dissection of the vertebral artery.
The claimant claimed that the persons who had been operating the jump had acted negligently in releasing him
without warning. The judge’s unchallenged finding was that
the claimant had been released without warning while his head was down. She held that the injury was sustained as a result
of the company’s negligent operation of the equipment and
failure to give an adequate warning, and that such injury had been reasonably foreseeable. She referred to the fact that the company’s guidelines highlighted the possible risk of death if
security rules were not followed. Those rules included asking the customer if they were ready.
The judge assessed general damages for pain and injury
and loss of amenity at £17,000, which included £5,000 for
being unable to drive a car for two years. The claimant was also awarded special damages of £6,500 for loss of profit on business mileage, plus interest, making a total sum of £25,616.34.
The defendant appealed and argued that the jump had
operated without injury for many years with thousands of
• Jackson/Mitchell/Denton companies convicted of criminal offences
customers, and that it was not reasonably foreseeable that a customer who was properly strapped in could be
caused injury by being released without warning while their
head was down. The award for general damages was also challenged.
Dismissing the appeal the Court of Appeal held that the judge had not placed too much emphasis on the defendant’s own
guidelines when concluding that if no warning was given injury might result. Its argument that the failure to adhere to its own strict guidelines did not give rise to a foreseeable risk of injury was a late development; its pleaded case
admitted that the guidelines were intended to reduce the risk of injury to ride participants. Its case had been that the claimant had not been launched without warning and that
his head had not been thrown about violently. The judge
properly considered, and rejected, the argument that it was
not a breach of duty of care to launch a customer without warning. She concluded that the company normally strictly
followed its guidelines in that respect, though that might be modified during the operation of a second ride to simply
asking the customer if they were ready rather than giving a 3, 2, 1 countdown.
There was nothing in the expert evidence to support the
defendant’s thesis that risk of injury was not foreseeable in the absence of a warning. On the contrary, the expert
evidence directly supported the proposition that there was an increased likelihood of injury being caused if the customer
was not warned to brace themselves before launch. In the circumstances, it was perhaps not surprising that there was
no broader analysis about the extent to which personal
injury, or neck injury, was the foreseeable consequence of an unexpected launch. The issue had not arisen as a significant issue before trial. The parties had not engaged in
a broad assessment of the experiences of other businesses operating the ride in similar circumstances, and the absence
of any previously reported injuries in the operation of the
ride did not therefore, per se, demonstrate that such injury was not reasonably foreseeable.
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‘The judge had been entitled to conclude that the risk of neck injury was a foreseeable consequence of launching a customer without warning…’ A number of factors could have contributed to the fact
that the defendant had not been the recipient of previous complaints, including the fact that soft-tissue neck injuries
rarely presented themselves until several hours after an accident and customers might not complain about short-
lived symptoms. The judge had been entitled to conclude that the risk of neck injury was a foreseeable consequence of launching a customer without warning when not braced.
It would not, therefore, be appropriate to interfere with her findings of fact in relation to liability.
The judge had been entitled to make an award of general damages which reflected the claimant’s loss of use of his
car, despite the fact that the result was an increase beyond the relevant guideline bracket. She was also entitled to
conclude that a total general damages figure of £17,000
accurately reflected the claimant’s loss of amenity because
of the special features of the claim. It was not appropriate to interfere with that assessment.
Expert Evidence There is a steady increase in the number of reported cases
concerning the substitution of one expert witness for another. The commercial case of Cintas Corp No. 2 v Rhino
Enterprises Ltd and others [Lawtel 11/06/2015] is the latest example.
The parties were involved in litigation arising out of the applicant’s purchase of the respondents’ document storage company. A trial had been listed for October 2014, but
was adjourned twice because of illness and additional documents becoming available. The claimant had made 91
The applicant submitted that (1) there was a good reason to adduce the evidence of an alternative expert; (2)
any communication referred to in its solicitor’s witness
statements prior to 11 May was to be taken as background
and the relevant ‘transaction’ related to the second joint report of 11 May. The respondents submitted that the points made in the solicitor’s witness statements could not be
taken to relate to a transaction so narrowly defined, as the solicitor had referred to the expert’s advice at stages earlier than 11 May.
not agree.
‘…the current expert’s conduct had been improper and dishonest’
The additional documents became available in March
Allowing the applications the High Court judge held that
inconclusive issues, six were resolved in the respondents’
already been adjourned twice. Had the applicant sought
applicant’s expert signed the second joint report on 11 May
expert had conceded matters that it did not want him to, the
solicitors were surprised at the content. The expert
quite different and the current expert’s conduct had been
had sent the respondents’ expert the amended version and
individual’s evidence on one issue and find that they had lied
the applicant’s expert had not sent his amendments, and
to continue to instruct its current expert.
allegations against the respondent, of which 46 were agreed,
by the respondents’ expert and the applicant’s expert not to
be breaches of duty; 12 were established as breaches of duty; 30 were inconclusive on the evidence available; and seven remained the subject of dispute, as the experts could
2015 and a second joint report was prepared; of the 30
the court was disinclined to vacate the trial date as it had
favour and the remaining 24 were inconclusive. The
permission for an alternative expert because the current
2015 and sent it to the applicant’s solicitors. The applicant’s
application would have failed. However, the situation was
suggested that he had signed the wrong version but that he
improper and dishonest. Although a court could accept an
assumed that the changes would be incorporated. However,
about another, it was not reasonable to expect the applicant
forwarded them for the first time on 11 May. The applicant’s
It was noteworthy that the expert’s proposed amendments
solicitors had submitted witness statements referring to some of the communication between them and their client’s expert in support of the instant application.
did not relate to the six issues resolved in the respondents’
favour. Therefore, there was no reason to think that his views
on those six or the earlier 46 issues had not been honestly
The applicant applied for permission to call a new expert
and reasonably reached. On those 52 issues the expert had
The respondent applied for the disclosure of documents
be right to allow the applicant a second bite at the cherry
previously-instructed expert.
dispute and the 24 inconclusive issues, had the applicant
on fire safety and to vacate the existing trial window.
formed a view favourable to the respondent and it would not
concerning communication between the applicant and its
in relation to those issues. In relation to the seven areas of continued to instruct the current expert, he might have been
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required to give evidence on those matters. Therefore, it
would be inappropriate to prevent an alternative expert from adducing evidence on those points.
Notwithstanding the reluctance to vacate the trial and the fact that the respondents were not at fault, the exceptional circumstances required that the applicant be permitted to
adduce the evidence of an alternative expert, but only on
the seven areas of dispute and 24 inconclusive issues. It was not in the interests of justice to insist that the applicant continue to instruct the current expert or be left without an expert.
The respondents were right to argue that waiver of privilege could not be confined in the manner in which the applicant
sought. The applicant had, through its solicitor, referred not merely to what had happened on 11 May and thereafter, but also to views expressed by the expert following the disclosure of the additional documents in March 2015. It might well be the case that the documents in respect of
which privilege had been waived were of little importance and that the expert’s opinion on the additional documents might have little significance, but those materials were
relevant and privilege had been waived. The disclosure that
the applicant had made through its solicitor’s statements
had not exhausted the need for disclosure for material in respect of which privilege had been waived.
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Costs If a receiving party fails to commence detailed assessment
The appellant submitted that the email should be admitted
open to the paying party to give notice to the receiving party
had made full and frank disclosures when the impression
proceedings within three months of a claim concluding, it is
to do so and in default an application may be made to the court for an order. The case of FN and another v Secretary of State for the Home Department [Lawtel 12/06/2015] looks
at the costs consequences of such an application and the resulting order.
The appellant had been awarded its costs following a successful claim against the respondent. The detailed
assessment proceedings should have commenced in September 2012, but that had not happened. Costs
schedules were served in May and June 2014 and the parties began negotiations, but without agreement. The respondent made an offer in August 2014 and warned that,
in the absence of a bill of costs within seven days, an unless order would be sought. The appellant replied that no there
was no deadline to issue a bill of costs and that it was the respondent’s prerogative to make applications as it saw fit.
In an email about another case, the appellant’s solicitor
informed the respondent that six to eight weeks would
ordinarily be required to commence detailed assessment.
Seven weeks after its warning, the respondent obtained, without notice, an order that, unless formal detailed assessment proceedings were commenced within seven
days, costs would be assessed at nil. The master provided time for the appellant to apply to vary, stay or set aside that order and made a costs order in favour of the respondent.
and that the master had erred in finding that the respondent had been given that the appellant had taken no steps to resolve the matter.
Dismissing the appeal, the High Court judge held that the email was not fresh evidence as it had been available to
the appellant at the time of the hearing and had not been
put before the master. It was very difficult to see how an application to adduce it on appeal could be made. If it was important, it should have been adduced before the master, and it was too late to adduce it at the appeal stage.
If the email could not be relied upon, the basis for the
appeal was slender. The email had stated the time which the appellant’s solicitors required for an assessment. Without
reference to that there was little which indicated if or when the appellant intended to commence detailed assessment. The master had been entitled to conclude that he had not
been misled. By the time of the application, seven weeks had passed without a clear statement from the appellant
about when an assessment would commence. Even if the
email was taken into account, the conclusion would be no different. The email related to a different case and could not
be taken to refer to the appellant’s case. The solicitor should have clearly stated that six to eight weeks were required in
the appellant’s case. The appellant had been on notice that
an application would be made and it had been incumbent on him to reply and state the time needed.
The appellant applied to set aside the order and by the
If there had been material non-disclosure, the seriousness
commenced and the only issue was the costs of the unless
had failed to refer to prior correspondence, that was
time its application was heard, detailed assessment had
order. The appellant contended that the respondent had failed to make full and frank disclosure of the correspondence
between the parties and had misled the master. The email about a separate case was not placed before the master and he found that he had not been misled and that it had
not been unfair or unnecessary to make the application on a without notice basis.
of that breach had to be considered. If the respondent understandable. The application had not been for immediate relief, and it had not been intended that the unless order
would take effect until the appellant had had an opportunity to apply for it to be set aside or varied. It was not a case in
which non-disclosure had had an immediate and draconian effect. If non-disclosure occurred as a result of erroneous
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decision making, that was not highly culpable behaviour.
The master had taken the correct view that disclosure of
prior correspondence would not have made a material difference.
‘The general position under CPR 47.8 was that a party which had not commenced detailed assessment would be ordinarily required to pay the costs of consequent applications’ The order had been made when the appellant was two years
out of time and where a further seven weeks had passed since the appellant had received notice that an application
for an unless order would be made. The general position under CPR 47.8 was that a party which had not commenced
detailed assessment would be ordinarily required to pay
the costs of consequent applications. The appellant’s reply that no deadline existed and that it was the respondent’s
prerogative to make any application had not been the most
appropriate response. It had not been inequitable to make the unless order and there was no reason why the costs order should be set aside.
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Jackson//Mitchell/Denton The legal profession and the courts are facing increased numbers of litigants in person (‘lips’). Lawyers have been
told that they must take reasonable steps to assist lips; that they must not take unfair advantage of them; and must warn
their own clients that these steps may lead to an increase in costs. It is therefore interesting to see how far a court
will go to assist a lip who breaches a court order. This was the situation in the commercial case of Chadwick v Burling (2015) EWHC 1610 (Ch).
The claimant, a trustee in bankruptcy, had applied for
possession and declarations as to his beneficial ownership of two properties, ‘Rayleigh Road’ and ‘Selwood Road’. The respondents to that application were the bankrupt and
his former wife. The former wife was a litigant in person who claimed that she had some interest in the properties. In March 2014 the court directed her to file her evidence.
She did not do so, and in May 2014 the court made an unless order to the effect that unless she filed and served
written evidence by 5 August, she would be debarred from relying on any such evidence without the permission of the court. The substantive proceedings were adjourned until 6 October. The former wife did not comply with the unless
completely different light on the whole thing and that might
be something I would take into account but...I cannot even come to that conclusion”.
The former wife appealed and submitted that the judge had
erred in law by reaching a conclusion on the basis of the
first two stages of the Denton test without contemplating the third.
The High Court judge held that in relation to Rayleigh Road, the deputy registrar’s judgment displayed an error of
principle. While he might have had all the relevant factors in mind, he failed to address them all in his judgment. Moreover, he appeared to have taken what he saw as the
weak merits of the former wife’s case into account as part of “all of the circumstances of the case” when he should
not have done so. Some of the documents which she was seeking to adduce suggested that she might have
a claim. The actual merit of that claim was not a relevant
consideration at the third stage of the Denton test: if the case was one which would otherwise qualify for relief, then the former wife should be permitted to put in evidence in support.
to grant relief from sanctions. Applying the three-stage
‘The fact that the court was dealing with a litigant in person could only be relevant at the margins…’
of time for compliance and had given no good explanation
To that extent, the appeal would be allowed. Nevertheless,
on to the third stage and consider all the circumstances
to grant relief. While she had eventually sought legal advice
the former wife sought to adduce, saying “...if I am looking
likely to be significant in terms of delay and costs, the
these are terribly important documents and they throw a
explanation. The court was not obliged to enquire into the
order. On 6 October, she attended court with a bundle of documents which she sought to adduce by making an
application for relief from sanctions under CPR 3.9. The
documents provided some evidence in support of her claim
in respect of Rayleigh Road, but took her claim no further in respect of Selwood Road. The deputy registrar refused
test in Denton he found that the former wife was way out for her non-compliance. He indicated that he need not go
it was not appropriate for the court to exercise its discretion
of the case. However, he referred to the documents which
and the consequences of her non-compliance were not
at all the circumstances of the case, I might be saying...
former wife was well out of time and had given no proper
state of knowledge and intellectual capacity of every litigant 07
in person who said that she did not understand the process
or realise that she had certain rights. The fact that the court was dealing with a litigant in person could only be relevant at the margins, where, for example, there was some extremely
complex factor or complicated order which a lay person might find it difficult to understand. The instant directions were straightforward and easy to understand.
The deputy registrar’s judgment in respect of Selwood Road
displayed no error of principle, and his conclusion was well within the range of decisions open to him. He was entitled
to take account of the merits of the defendant’s case on that property, because even if all the evidence on which she sought to rely had been admitted, it did not provide her with
an arguable case on the merits. Even if the judge should have taken into account other factors which he did not
expressly take into account, he could only properly have reached the conclusion he did.
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Article – Heavy fines likely in the future for large companies convicted of criminal offences R v Thames Water Utilities Ltd (2015) EWCA Crim 960
The Court of Appeal reaffirmed the section of the guidelines
On 3 June 2015 the Court of Appeal, including the Lord
exceeds the threshold for large companies (£50m and over),
Chief Justice, handed down judgment in this appeal against a fine of £250,000. The appeal was emphatically rejected,
with the Lord Chief Justice stating that the court would have no hesitation in upholding a “very substantially higher fine”.
relating to very large organisations, that states “where
a defendant company’s turnover or equivalent greatly it may be necessary to move outside the suggested range
to achieve a proportionate sentence”. Thames Water had
a relevant turnover of £1.9bn (profit £346m) and as such the court wanted to provide some guidance for sentencing
Although this was an environmental prosecution, the Lord
so called ‘very large organisations’. They indicated that the
what can be expected when the draft sentencing guidelines
the level of culpability is negligent (medium) or higher;
(‘the draft guidelines’) are introduced either later this year or
the fine has to be sufficiently large to send a message to
Chief Justice’s comments should be seen as a harbinger of
size of a company becomes much more important when
for health and safety and corporate manslaughter offences
even in the case of companies with an impeccable record
early 2016.
the directors and shareholders; and in the case of repeat
The guidelines for sentencing environmental cases are
similar to the draft guidelines and take into account factors
such as culpability, level of harm and size of the offending company. The starting points and ranges of fine are significantly lower for environmental offences:-
For a large company (turnover of £50m and over) with very high culpability (deliberate) and involving harm category 1
the starting point and ranges for fines under the respective guidelines are as follows:-
• Draft guidelines - starting point £4m; range £2.6-£10m • Guidelines for environmental offences – starting point £1m; range £450k-£3m
In this case, Thames Water pleaded guilty to an offence arising from the discharge of untreated sewage into a brook on a nature reserve. At first instance, the sentencing judge
assessed culpability as ‘negligent’, which is equivalent to ‘medium’ in the draft guidelines.
This was the first environmental prosecution to come before
a court since the guidelines for environmental offences were implemented and the judge at first instance faced a difficult task in assessing the appropriate level of fine.
offenders the fine should be far higher and rise to such a level that the company reforms and ensures that it meets its statutory obligations.
Despite significant mitigation by Thames Water in the form
of a statement from a senior officer stating that the company was taking the issue of environmental pollution seriously and was spending substantial sums to modernise and improve its infrastructure, the Lord Chief Justice indicated
that the fine of £250,000 was lenient and they would have no hesitation in upholding a very substantially higher fine.
The most concerning issues arising out of this judgment, however, are the Lord Chief Justice’s remarks in relation
to the approach to be adopted in sentencing very large organisation run for profit:-
• the object of the sentence is to bring home the
appropriate message to the directors and shareholders of a company and sentences imposed in the
environmental arena hitherto had not been adequate to achieve that object;
• previous convictions will always be relevant aggravating features and in some cases seriously aggravating
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features. By way of example, to bring home the
message to directors and shareholders of organisations which have offended negligently once or more than
once before, a substantial increase in the level of fine, sufficient to have a material impact on the finances of
the company as a whole, will ordinarily be appropriate. This may result in fines measured in millions of pounds; • in the worst cases - i.e. cases involving category 1
harm caused by deliberate action or inaction - the need to impose a proportionate penalty will necessitate a
focus on the whole of the financial circumstances of the company. In such cases the objectives of punishment, deterrence and the removal of gain must be achieved
by the level of penalty imposed. This may well result in
a fine equal to a substantial percentage, up to 100% of
the company’s pre tax net profit for the year in question, even if this results in fines in excess of £100m.
The Lord Chief Justice’s reference to fines in excess of
£100m is startling and greatly exceeds anything that is
mentioned in the draft guidelines - e.g. for the offence of corporate manslaughter the top end of the range for large
companies is £20m. However, this should be seen as a clear warning to organisations that there are likely to be very significant increases in the levels of fines imposed for H&S offences across the board when the draft guidelines are implemented. It is anticipated that there will also be a
substantial increase in the level costs incurred defending H&S prosecutions as expert evidence may be required in
relation to the level of culpability which will impact upon the starting point for any fine and in the case of larger
companies from forensic accountants to demonstrate the true size of a company.
The guidelines will be retrospective and therefore it is crucial that, in appropriate cases, prosecutions are concluded
before the draft guidelines are introduced in order to minimise the level of any fines.
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For further information about the article please contact Peter James T: 0844 245 5319 E: peter.james@plexuslaw.co.uk Thomas Middlebrough T: 0844 245 4132 E: thomas.middlebrough@plexuslaw.co.uk
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