Legal Watch: Personal Injury 5th August 2015 Issue: 073
Public liability Insurers may be concerned by the court’s findings in regard to the householders’ duty of care in the case of Pollock v Cahill and another (2015) EWHC 2260 (QB).
The claimant was blind and had been a guest at the house. He was given a bedroom, but was not aware where the window
In this issue: • Public liability • Civil procedure
was. When the claimant fell from the second-floor window,
• Civil procedure/expert evidence
injuries which resulted in him being paralysed from the waist
• Jackson/Mitchell/Denton
which had been left open, he sustained brain and spinal down.
• Costs
The defendants argued that there were three possible explanations of how the claimant fell from the window: it was
a complete accident; he had overbalanced after deliberately leaning out; or he had been sleep-walking and climbed out.
The last two of those explanations did not involve any breach of duty on their part and the evidence was too unsatisfactory
and too few facts were known for the court to exclude the last two possible explanations. They also argued that a fall through the window, while possible, had not been a real risk that would
Events
such care as was reasonable in the circumstances to see that the claimant would be reasonably safe.
Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next few months:
Finding in favour of the claimant, the High Court judge held
The Major Bodily Injury Group (MBIG) | Spring
influence the mind of a reasonable man, and so they had taken
that on the evidence, although she did not recall it, the second defendant had opened the window in the bedroom used by the
claimant when she was making up the room. The defendants’ two alternative explanations were not genuine possibilities: the claimant could not have leant out of the window as he did
not know it was there or that it was open; and there was no
evidence that he was prone to sleep-walking. On the balance of probabilities, the claimant had fallen through the open
window as he was trying to make his way to the bathroom after he had awoken, having lost his sense of direction.
Seminar - You the client | 21.04.16 | The Wellcome Collection, London
‘The common duty of care owed by occupiers… required them to have regard to any known vulnerability of the visitor’. The common duty of care owed by occupiers pursuant to S2
Occupiers’ Liability Act 1957 required them to have regard
to any known vulnerability of the visitor. An open window created an obvious risk for a blind person, particularly when it was on the second storey of the house with
nothing to prevent a fall to the ground below. The evidence
demonstrated that the risk had been apparent to the second
defendant albeit that she clearly misjudged the extent of the risk. The defendants had failed to discharge the common
duty of care they owed as occupiers: the open window had been a real risk to the claimant; they created that risk; and they ought to have appreciated the risk and taken steps to
prevent it by keeping the window closed or by warning the
claimant about it with particular reference to the extent of the drop from the window.
02
Civil procedure Although it is a commercial case on its own facts, NGM Sustainable Developments Ltd v Wallis and others (2015)
EWHC 2089 (Ch) contains reminders that parties should
not forget the basics of civil procedure, including that at any hearing questioning must be consistent with a party’s statements of case.
The claimant company sought partial rescission and damages in respect of obligations entered into with the
defendants, which they maintained had been induced by
‘The claimant’s counsel had regularly strayed from (the) golden rule, trying to assert the opposite of his pleaded case’
the defendants’ fraudulent misrepresentations. The facts
It was especially important, in fraud cases, for the claimant
High Court judge made a number of comments that are of
regularly strayed from that golden rule, trying to assert
were hotly contested but in finding for the defendants the
to stick to the pleaded case. The claimant’s counsel had
general relevance.
the opposite of his pleaded case. The claimant’s case
The claimant’s counsel had repeatedly strayed in cross-
examination from his pleaded case. It was a fundamental tenet of the adversarial process that a case had to be put against the opposing party so that they had an opportunity
to deal with the allegations in the witness box. It was equally
vital for judges assessing witnesses’ credibility to see how they reacted to the allegations.
Several times, counsel put rolled-up questions. The witness answered only the last question so that it was not clear what
was weak when it began, and had become progressively weaker during the trial. On the evidence, there had been no fraudulent misrepresentation. The defendants had put
the maximum pressure on the company, but there was no allegation of undue influence or duress. They had simply
exploited their strong position and the company’s weakness. That was not, in itself, actionable, and happened every day
in the commercial world. The real reason for the breakdown between the parties was a clash of personalities.
his response to the former would be. Equally witnesses
often said “yes” when they meant “no”, or “ok” when they were not agreeing a question but merely acknowledging that they understood it. Trial judges had to be alert to ensure
that errors did not creep in. At the start of any long trial where issues of fact were hotly contested, it was essential
for counsel to put their case to the opposing side in crossexamination so that any criticism of their testimony could be put to them straight away.
03
Civil procedure/expert evidence The case of Wilson v Al-Khader [Lawtel 3/08/2015] is a relatively rare case looking at the operation of Part 35.6: written questions to an expert witness. It also illustrates
the difficulty of successfully appealing a case management decision.
The claimant/respondent had suffered catastrophic brain damage due to a medical accident, as a consequence of
which she remained in a persistent vegetative state. She served a medical report which, on the issue of her life
expectancy, simply said that she could survive for many years and that it was premature to conclude anything else at that stage.
The claimant’s schedule of loss was uninformative and did
not contain a single figure with regard to the size of the claim. In January 2015, the defendant/appellant admitted liability
and causation and so the case proceeded on quantum
only. When the matter came before the master for case management, the defendant applied, purportedly under
made an error of law, or, in exercising his case management discretion, had taken into account irrelevant material, failed to take account of relevant material, or had come to
a conclusion that was so outside the range of reasonable responses that no master could have reached it. It was not
for an appeal court to substitute its own opinion, but to review the lower court’s decision within those parameters.
‘The questions asked had been…not clarifications but invitations to express an opinion that the expert had conspicuously not previously expressed’
CPR 35 for clarification as to the claimant’s life expectancy.
Under CPR 35.6(2) (c) questions to an expert about an
of a person in a persistent vegetative state was, and also
The questions asked had been, however, not clarifications
was. The expert informed the judge as to the difficulties in
conspicuously not previously expressed. The claimant’s
records, and said that determining the matter at that time
did not have to answer the question, as they were not CPR
best interests. The master found that, in the absence of any
entitled to take the view that absent any evidence to the
he would not make the order.
expert’s unwillingness to answer a question. The defendant
He asked generally what the anticipated life expectancy
expert report had to be for the purpose of ‘clarification’ only.
what the specific anticipated life expectancy of the claimant
but invitations to express an opinion that the expert had
assessing life expectancy in the absence of old medical
solicitors had been entitled to advise the expert that he
might not be accurate and would not be in the claimant’s
35.6 legitimate questions. Moreover, the master had been
evidence from the defendant contradicting that evidence,
contrary, it was not appropriate to go behind a professional
The defendant appealed and argued that it was impossible
to value the case without the information sought. He further submitted that the master had failed to take into account
the overriding objective and the need to promote expedition and proportionality.
Dismissing the appeal, the deputy High Court judge held that the court would not allow an appeal unless a master had 04
had sought to force a professional to express an opinion that
he had declared himself uncomfortable in giving. Further, the fact that the master had not recorded his consideration
of the overriding objective did not mean that he did not have it in mind. An experienced master was assumed to be fully
aware of the overriding objective and the need to apply it. In any event, any opinion given by the expert would have
been valueless because the annual costs of the claim had
not yet been evidenced, and so the life expectancy figure did not yet have core significance. Some masters might have met that by directing that the claimant should provide the outstanding evidence in accordance with a timetable, and to provide a better particularised schedule of loss,
thus allowing the defendant to know the case they had to meet. However, simply because there were other ways that
the matter could have been addressed did not make the decision wrong. It was legitimate to seek the information,
but the preferable way was through case management
directions and the claimant properly particularising the claim. That did not alter the conclusion that there had been no error of law. The master’s decision had not been so far outside the range of orders so as to make it perverse.
05
Costs In Caseldine v Diocese of Llandaff Board for Social
Responsibility [Lawtel 4/08/2015] we have an early case on the application of QOCS, albeit only at county court level.
The claim had been dismissed and the judge ordered that the issue of the defendant’s costs, if not agreed, should be
subject to a detailed assessment and should be referred to the regional costs judge to determine the preliminary issue
on QOCS. QOCS provided, with some exceptions, that in
the event of a claimant losing his case at trial, he would not be ordered to pay the defendant’s costs. The claimant had instructed solicitors to act for her and had entered into a
conditional fee agreement with them as well as obtaining an after-the-event (ATE) insurance policy. They terminated that CFA without issuing proceedings and the claimant then entered into a second CFA with her current solicitors. The instant proceedings were subject to the second CFA.
The defendant submitted that as the claimant had entered into a CFA with the first solicitors at a date prior to the
introduction of the QOCS rules on 1 April 2013, she could not rely on QOCS protection. The claimant contended that the court had to take into account the background to the
changes, which dealt with the abolition of the recoverability of additional liabilities from defendants and the introduction of the QOCS, and that the changes had to be taken together
to effect a quid pro quo. She further argued that the definition of pre-commencement funding arrangements in CPR 48.2
was directed squarely at the issue of whether additional liabilities could be recovered and that in the instant case
the proceedings were subject to the second CFA so that if she won at trial the defendant would not have had any
liability to pay any additional liabilities; and that in those circumstances she was entitled to rely on the protection afforded by the QOCS.
in the instant case proceedings were never commenced in relation to the first CFA but only to the second.
‘…the court was never in the position to order the defendant to pay the claimant’s additional liabilities’ So far as the first CFA was concerned, it was the solicitors
who terminated it and therefore they were not entitled to payment of any success fee or costs. The meaning of the
word ‘proceedings’ had to be decided in the context in which it appeared. CPR 48 dealt, amongst other things, with
the recoverability of additional liabilities and CPR 44.13 to CPR 44.17 dealt with QOCS. Both changes to the rules were brought in at the same time and there was good reason for
that. In respect of funding arrangements entered into on or after 1 April 2013, a claimant would no longer need to take out ATE insurance to cover the defendant’s costs because even if he lost at trial, he would no longer be required to
pay the defendant’s costs subject to the exceptions set
out at CPR 44.15 and CPR 44.16. At the same time, in relation to such funding arrangements, defendants would no longer be liable to pay any additional liabilities to the
claimant in the event of the claimant winning. In the instant
case the claimant had issued proceedings pursuant to the CFA entered into with her current solicitors. That CFA had
been entered into after 1 April 2013 and therefore the court
was never in the position to order the defendant to pay the claimant’s additional liabilities. That was an important
Finding in favour of the claimant, the county court judge
consideration when determining the meaning of CPR 44.17
The case of Landau (2014) was distinguishable because in
the success fee was payable. The reference later in the
held that there was no binding authority on the instant issue.
and CPR 48.2, which itself referred to the person by whom
that case two sets of proceedings had been taken, whereas
rule to the matter that was the subject of the proceedings
06
did not entitle the court to order the claimant to pay the
defendant’s costs having regard to the circumstances of the
instant case, and the fact that no proceedings were ever issued in relation to the first CFA. In those circumstances
it could not be right that the claimant should not be able to rely on the protection afforded by QOCS. The claimant
should not be responsible for payment of the defendant’s
costs and could rely on the protection afforded to her by
CPR 44.17. She had not entered into a pre-commencement funding arrangement as defined by CPR 48.2.
07
Jackson/Mitchell/Denton The case of M v Hicks and others [Lawtel 31/07/2015] is
the latest case concerning an application for relief from sanctions. More importantly it emphasises the need to instruct a psychiatrist in a claim for psychiatric injury and
not a non-medically qualified ‘expert’ whose evidence a court may still consider adequate.
The claimant had brought a claim against the first defendant in relation to alleged sexual abuse he had suffered as an
adolescent when at a seminary school run by the first
‘Under CPR 35.1 expert evidence was restricted to that which was reasonably required to resolve proceedings’
defendant. Permission had been given to rely on expert
The court had a discretion to manage proceedings in a
fact, the claimant had previously instructed a different expert
guidance under the CPR. Under CPR 35.1 expert evidence
judge in an unrelated case. Accordingly, the psychotherapist
resolve proceedings. The claimant and first defendant had
then instructed a further expert as he wanted a second
face of it was more than sufficient to resolve the proceedings.
particulars of claim and his first witness statement; (ii) serve
that there should not be a knee-jerk reaction that refused
third party; (iv) serve a supplementary statement.
of loss of confidence in the first. However, that was not the
evidence and the claimant instructed a psychotherapist. In
way which best reflected the overriding objective and the
who had been dis-instructed after he had been criticised by a
was restricted to that which was reasonably required to
was the claimant’s second expert consulted. The claimant
both instructed a medical expert and that evidence on the
opinion. The claimant sought permission to: (i) amend his
In Edwards-Tubb (2011) the Court of Appeal had indicated
a new psychiatric report; (iii) serve a witness statement by a
a party the right to rely on a second expert report because
In relation to the psychiatric report, the claimant submitted that there was an imbalance between his second expert’s report and the first defendant’s, with the second expert
being a psychotherapist and the first defendant’s expert
a professor of psychiatry, and so a second opinion was needed. The first defendant submitted that there had to be
close policing of experts and that the claimant was expert
shopping. It was further argued that that the trial was fixed for November 2015 and there had not been time to consider
the new report. Allowing the application, but only in part,
position in the instant case. The claimant had instructed his
first expert, subsequently lost confidence in him and had already instructed a second expert. The second expert’s
report had been obtained and served. It was that report that had been considered by the first defendant’s expert. It supported the claimant’s case and was sufficient to resolve
the proceedings. The new expert had been instructed
without any notice to the first defendant or the court, where the trial date was in less than five months. It was not appropriate to grant relief from sanctions.
the High Court judge held that the first defendant had not
There was no serious prejudice in allowing the third party’s
or his first witness statement and the court granted him
permission.
objected to the claimant amending the particulars of claim
witness statement to be served and the court granted
permission him amend them.
The claimant’s supplementary statement dealt with the same
issues as in his first witness statement. It was unnecessary for resolving the proceedings.
08
Publications If you would like to receive any of the below, please email indicating which you would like to receive. Weekly: • Legal Watch: Personal Injury Monthly: • Legal Watch: Property Risks & Coverage Quarterly: • Legal Watch: Health & Safety • Legal Watch: Professional Indemnity • Legal Watch: Disease
Contact Us
For more information please contact: Geoff Owen, Consultant T: 01908 298216 E: gro@greenwoods-solicitors.com
To unsubscribe from this newsletter please email: crm@greenwoods-solicitors.com
www.greenwoods-solicitors.com
www.plexuslaw.co.uk
The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 12 Dingwall Road, Croydon, CR0 2NA. Parabis Law LLP is authorised and regulated by the SRA.