Legal Watch: Personal Injury 24h June 2015 Issue: 067
Public Liability The case of RXDX (a minor) v Northampton Borough Council
(Defendant) and DXDX (Third Party) (2015) EWHC 1677 (Admin)
In this issue:
a child visiting a swimming pool at a leisure centre which it
• Public Liability
operated.
• Damages
In 2002, when he was six years old, the claimant had visited
• Damages/interim payments
looks at the liability of a local authority for injuries sustained by
the leisure centre with his father and older brothers. They could
all swim but he could not. He was found lying at the bottom of the pool by another pool user, who removed him and took him to a lifeguard for resuscitation. The claimant survived but suffered significant brain damage. CCTV footage showed the claimant climbing out of the pool with his family but becoming separated from them.
One minute later he was seen to sit on the edge of the pool on his own, to turn so that his back was towards the water, and
to lower himself into the water. That was the last time he was
visible on the CCTV. He was lifted from the water about three minutes later. Medical evidence was agreed that the severity of the claimant’s brain damage indicated that he had been
submerged for at least 2 minutes and 40 seconds. There had been two periods of inadequate oxygenation: first a period
of complete lack of oxygen, and second a period of relative hypoxia due to the continuing presence of water in his lungs.
The claimant alleged that the defendant was vicariously liable
for the failures of the four lifeguards on duty at the time to supervise the pool and exercise appropriate vigilance over
him. The defendant brought Part 20 proceedings against the claimant’s father for failing to exercise proper parental
care. The court was required to determine (i) liability and (ii) causation.
Finding in favour of the claimant, the High Court judge held that the advice published by the Health and Safety Commission
entitled “Managing Health and Safety in Swimming Pools” defined good practice for public pools. Although the
• Jackson/Mitchell/Denton
publication was not a statutory code, a material breach
and by failing to keep him under observation and to continue
negligence. It stated that pools should be divided into zones
that he had not gotten into difficulties after entering the pool.
of its recommendations would constitute common law to ensure that all areas were covered, and that each zone should be continuously scanned, both above and below the
surface, in accordance with the “10:20 system”. That was an internationally recognised practice of scanning a particular zone using a 10-second sweeping action. Lifeguards had
to be close enough to their zone to reach an incident within 20 seconds.
The defendant also had its own guidance regarding lifeguard duties. It was a very substantial but totally incomprehensible
document. It said there should be two lifeguards, each watching the whole pool but with one focusing on the shallow end and the other the deep end. It said where
each should be stationed, but it was not clear which one
had which responsibility, or how the scheme would work in practice.
‘The lifeguards had breached their duty of care by failing to identify him as a child at risk…’ None of the lifeguards gave evidence and their statements
did not say how they had been trained or which zone had been allocated to them. The absence of evidence as to how
the local authority had applied the Commission’s guidance was most unsatisfactory. Given the positions of the two lifeguards as seen on the CCTV footage, there was no doubt that the claimant was never more than about seven metres
from them. He had also been in the zone of two other
lifeguards stationed in raised positions. At least two pairs of eyes should have been scanning him every 10 seconds. He
should have been picked up during the scanning as a child
of interest, especially as he was on his own. The lifeguards could not assume that he was a swimmer, or that he was
under parental supervision. The lifeguards had breached
their duty of care by failing to identify him as a child at risk 02
scanning the water and pool bottom to satisfy themselves
There was a causal link between the lifeguards’ breach of duty and the severe injuries sustained by the claimant. If the claimant had been rescued within 30 seconds or a minute of
being submerged, there would have been a rapid recovery and the brain damage would have been avoided. As it was,
once the claimant inhaled water into his lungs, hypoxia
continued to cause him brain damage until the point at which he was intubated at hospital 30 minutes later.
The claimant’s father had not responded to the Part 20 proceedings against him. No judgment has been entered against him, as he was not covered by any insurance and he
was not otherwise a man of means. An order was made on
6 October 2014 whereby he was deemed to have admitted
his fault. If in due course his circumstances radically alter it might become appropriate to revive the claim against him. At the beginning of the trial the judge acknowledged that
should the claimant win against the defendant he could make no finding against the third party in this action but he fully understand why the defendant alleged that there
was a very strong case against the father for failing to exercise proper parental care over this child. He seemed to have been entirely unaware of what was happening to the claimant at any stage until after he was brought out of the pool by another pool user.
Damages The case of Harman (a minor) v East Kent Hospitals NHS
Rejecting the defendant’s submissions, the High Court
arguments about the public funding of a claimant’s care
expressed a preference that the care home fees should
defendant’s limited prospects of winning on this issue.
and that is how they would fund the placement in the event
Foundation Trust (2015) EWHC 1662 (QB) illustrates that
judge held that the claimant’s parents had unequivocally
are still taking place. However, the case also highlights a
be paid from an award of damages against the defendant
The claimant (14) suffered from severe autism and significant
cognitive impairment as the result of his negligent post-
birth management by the defendant. Proceedings were commenced in 2011 and the defendant admitted liability
in 2013. In that year, the claimant moved to a residential care home providing specialist services for those suffering from severe autism. In 2014, the local education authority agreed to fund his placement. The plan was for the claimant to stay at the home until aged 25. Experts instructed by the
claimant and the defendant were confident, in view of the appropriateness of the care home, that the local authority
would continue to provide funding until he reached 25.
that the court made provision for the same. The effect of Peters (2010) was to confirm that the claimant was entitled
to pursue the defendant for those sums rather than have to rely on the statutory obligations of the local authority. By
presenting the situation on the basis that the local authority would continue to pay the fees the trust was misstating the position. The local authority would not continue funding if
the claimant did not claim funding. Peters gave claimants
the option to elect to pursue the tortfeaser for such funding. Simply because funding was already being paid and
would continue to be available if a claimant chose to take advantage of it did not avail a defendant.
His parents wanted the care home fees to be paid from an
The claimant’s parents fought a long and difficult battle to
local authority funding. When the claimant reached the age
only resolved by taking the matter to a tribunal. Their wish
award of damages against the defendant rather than from
obtain public funding for the care home and the issue was
of 25, his parents wanted him to return home.
to elect to take private funding was entirely genuine. There
The defendant argued that (1) as the agreed evidence was
that the local authority was paying the care home fees and
was no need for the court to adjudicate on whether or not that preference was reasonable.
those payments would continue to be made in the future, it
The claimant’s parents had stated unequivocally that they
fees; (2) after the age of 25, it was likely that the claimant
care home. Each case must be looked at on its own facts.
would be in his best interests.
desire of the relatives might be to have the claimant home,
should not be required to assume responsibility for those
wanted their son to move back home when he left the
would be looked after in specialist residential care and that
There might be circumstances in which, however strong the
‘The local authority would not continue funding if the claimant did not claim funding’
there were good reasons for taking a contrary course. The purpose of damages was to compensate the victim and
not to accommodate the wishes of the family whatever inevitable personal sympathy one might have for them.
On the other hand, the wishes of loved ones were by no means irrelevant. Ultimately, the court was of the view that
reasonable compensation for the claimant must involve a private regime at home and in the particular circumstances
of the case, a residential solution would not be reasonable. 03
The determination and enthusiasm of the claimant’s parents to welcome him back to the family home when he left the
care home was entirely genuine. The particular fortitude with which they had coped with the stresses and strains
of looking after the claimant over the years was a strong measure of their dedication. It was not illogical that the
claimant should move from an institutional regime to a
private regime at the age of 25. His time at the care home could reasonably be expected to maximize his potential and prepare him for the rest of his life to the fullest extent.
Although the judge did not expressly deal with the point, his understanding was that the risk of ‘double-recovery’ would
be dealt with by way of ‘an appropriately worded indemnity from (the claimant’s) Deputy’.
A section of this judgment was taken up by criticism from
the judge that ‘the expert evidence (in this case) in some respects fell short, particularly on paper, of providing the court with a level of assistance commensurate with the seriousness of the issue’.
The judge was critical of the length of reports generally and care experts in particular. He went on to say:
‘Against the background of longer and longer reports there
is, however, little sign, in some cases at any rate, that the care and attention spent on analysis and opinion, as opposed to
history and narrative, is being given commensurate attention and priority...’
It will be interesting to see whether other judges begin to pick up on this.
04
Damages/interim payments Another area of concern for defendants is a claimant seeking
The award for pain, suffering and loss of amenity was likely
claim in a case where the final award of damages may
the majority of the claims for past loss. An award of £20,000
a substantial interim payment to fund an accommodation
include periodical payments. In Cousins v Julius and another (2015) EWHC 1682 (QB) the claimant applied for an interim payment of £800,000 in her claim for damages for
personal injury against the first defendant uninsured driver and second defendant, MIB.
The claimant had been severely injured when the first
defendant drove into her: one of her legs had to be amputated above the knee and the other was seriously damaged. Liability had been admitted and the second defendant accepted liability to deal with the claim.
The claimant needed appropriately adapted accommodation for the rest of her life, together with prostheses for her legs and provision for care and assistance. The total of her claim
for lump sum elements was £3,503,455. She had already received interim payments of £310,000. The assessment of damages trial was nine months away. The basis of the
instant application was the claimant’s contention that she
was in urgent need of funds to buy and adapt a house,
and to relocate herself, her husband and young daughter to it. They were living in rented accommodation, where the landlord could serve notice to quit on two months’ notice,
to be at least £115,000. There was no evidence to displace was likely for the purchase of a car. £150,000 was a very conservative estimate of what the trial judge was likely to
award as a capital sum for the cost of adapting a property.
Taking into account those allowances reduced the total of capital claims to £1,056,836. Ninety per cent of that figure was £951,152; subtracting the sum of £310,000 already
paid produced a figure of £641,152. There was a real risk that that sum, allowed under Eeles stage 1, would not be enough to fund the claimant’s pre-trial expenses and the purchase and immediate adaptation of a suitable house.
‘...the court could confidently predict that the trial judge would order a capital payment greater than the sum…available under Eeles stage 1’
and where there was a damp problem. An expert surveyor’s
There was clear evidence that by the time of trial the initial
about £450,000, with purchase costs of about £20,000, and
the claimant’s needs was not likely to be significantly less
offered an immediate interim payment of £400,000.
be about £27,000. Adaptation costs were almost certain to
evidence was that the claimant should buy a bungalow for
purchase cost of accommodation suitable for adaptation for
adaptation costs of £292,672. The second defendant had
than £450,000 and might be more. Relocation costs would
The deputy High Court judge held that, following Eeles
(2009), in assessing the likely amount of the final judgment, it was appropriate to include future accommodation costs
in the interim award. The assessment should be carried
out on a conservative basis and the court should make an interim award on the basis of a reasonable proportion of that assessment.
exceed £200,000. In those circumstances the court could confidently predict that the trial judge would order a capital
payment greater than the sum of £641,152 available under
Eeles stage 1. If such a sum was not awarded, the claimant’s needs could not be met. Her current accommodation was unsatisfactory in several respects and she had a
real and present need to move to alternative purchased accommodation. There was a real need for a greater lump sum, but not as much as the £800,000 she was seeking.
05
The claimant’s schedule of loss in respect of future items
exceeded £2m. Even if the eventual award for future loss, in addition to past loss, amounted to a fraction of the sum
claimed, it would be likely to approach a capitalised value
in excess of £500,000. It would be neither restrictive of the trial judge’s powers nor in any way indulgent to the claimant
to take a figure of approximately £60,000 under Eeles stage
2 to add to the £641,152. Rounding down, an interim award of £700,000 was made.
06
Jackson/Mitchell/Denton
engaging in without prejudice discussions
‘…taking into account Denton it was clear that the claimant’s failure to comply was not serious’
The claimant wanted to serve two witness statements
The reports from the claimant’s care expert would be late,
From the relatively large number of cases that we are reporting under this heading it is beginning to look as though
the post-Denton pendulum is swinging away from the robust approach of the immediate post-Mitchell era, certainly as
far as claimants are concerned. An added feature of this case, however, is criticism of the defendant for delaying in
concerning her night-time care and what was recoverable in her schedule of loss and damage, an updated expert report
and an amended schedule of loss and damage as a result of
potential changes to her night-time care and her weight loss which affected her life expectancy. The defendant opposed
the supplementary evidence on the basis that the claimant had left it too late.
as would the report from the defendant’s expert owing to
her personal commitments. The timetable had gone awry in part because of the claimant’s failure to pursue matters sooner, but also in part because of the defendant’s refusal
to engage in without prejudice talks until May 2015. The
instant court had to have flexibility to deal with matters and
taking into account Denton it was clear that the claimant’s
Allowing the application the High Court judge held that
failure to comply was not serious. The first stage of Denton
late but dealt with a narrow issue that had already been
consider the second and third stages.
the statement concerning night-time care had been raised
had not been passed and therefore it was not necessary to
canvassed. There would be no prejudice in admitting that evidence. It would be troubling if the court did not have all the information necessary to try the case.
The other witness statement, from the claimant’s trustee, concerned an issue of law as to whether the trustee could
recover what was in the schedule of loss and damage. The
trial judge would need to know what the trustee had been doing in order to make that decision and so the trustee’s witness statement was necessary.
The schedule of loss and damage served in 2014 had since been amended due to the night-care issue and the
claimant’s weight loss, which affected life expectancy. The
amended schedule would not prejudice the defendant and
the trial judge should be able to deal with the claimant as she
was now, rather than on the basis of out-dated information.
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