Legal Watch: Personal Injury 19th August 2015 Issue: 074
Civil procedure/admission of liability Where a defendant wishes to resile from an admission of liability made before the commencement of proceedings it must address CPR 14.1A which states:
(3) A person may, by giving notice in writing, withdraw a preaction admission
(a) before commencement of proceedings, if the person to
In this issue: • Civil procedure/admission of liability • Psychiatric injury/secondary victim • Credit hire
whom the admission was made agrees;
(b) after commencement of proceedings, if all parties to the proceedings consent or with the permission of the court. (4) After commencement of proceedings– (a) any party may apply for judgment on the pre-action admission; and
(b) the party who made the pre-action admission may apply to withdraw it.
(5) An application to withdraw a pre-action admission or to enter judgment on such an admission –
(a) must be made in accordance with Part 23; (b) may be made as a cross-application. In Cavell v Transport for London (2015) EWHC 2283 (QB) the
defendant applied to resile from such an admission. The case
also looks at the impact of an admission of liability on a party’s ability to seek contribution or indemnity from a third party.
In October 2011, the claimant, a cyclist, had fallen from his
bicycle at the point where a cycle path joined a bus lane.
He told a paramedic that he fell “due to uneven ground”. In September 2012, he emailed the defendant alleging that a “pothole” had caused the accident. He included a clear
digital image of the scene with the defect marked. A claims
handling firm instructed by the defendant reviewed the case
and, in August 2013, issued a denial of liability on the basis that inspection records for the site indicated regular inspection
Events 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: The Major Bodily Injury Group (MBIG) | Spring Seminar - You the client | 21.04.16 | The Wellcome Collection, London
with no defects identified. The claimant sent images from
the conduct of the parties, and whether withdrawal was in
he claimed undermined the inspection records.
had been offered for the erroneous admission. The claims
July 2013 showing that the defect was still present, which
A second claims handler reviewed the case and, in December, concluded that the lack of contemporaneous evidence of the road’s condition made it difficult to assess whether the inspections had been carried out reasonably. In
November 2013, an employee of the defendant repaired the relevant part of the road, describing the fault as a “pothole in bus lane”. The claimant was unaware of this development.
In March 2014, the claimant’s solicitors contacted the claims
handling firm, which issued an admission of liability within
24 hours. The issues to be determined in the defendant’s application were whether (i) the admission should not
have been made because there was no contemporaneous evidence to support it; (ii) if the admission was not withdrawn, would the defendant be able to claim any contribution or
indemnity from the contractor responsible for inspection and repair of the highway.
Dismissing the application, the High Court judge held that
the claimant’s digital images were a contemporaneous
record of the defect. The inspection records would carry more weight if the defect apparent in September 2012 had not still been present in November 2013, when it was
assessed by the defendant as a pothole. While the claimant had not informed medical professionals of the pothole, he had told the first person to treat him at the scene about it.
‘It would not be in the interest of the administration of justice to permit withdrawal of an admission made...’ The court had to consider the factors listed in CPR PD 14 - 7.2, including whether new evidence had come to light that was not available at the time the admission was made, 02
the interests of the administration of justice. No explanation
handling firm was experienced in the type of claim involved. The initial denial was followed by a lengthy review of that
decision and, during that time, repairs were carried out to the road. All the external evidence suggested careful consideration of the available material and a reasoned decision based on that material. There was no new evidence
to undermine that proposition. It would not be in the interest of the administration of justice to permit withdrawal of an
admission made after mature reflection of a claim by highly competent professional advisors without evidence to suggest that it had not been properly made.
Under the Civil Liability (Contribution) Act 1978, the
defendant would have to prove the defect, something which
the cyclist could assist with. It was therefore not prevented from obtaining a contribution or indemnity if the admission was not withdrawn.
Psychiatric injury/secondary victim Although it is a clinical negligence claim which failed on
causation, Owers v Medway NHS Foundation Trust and
another (2015) EWHC 2363 (QB) is of wider interest as an example of a claim for psychiatric injury by a secondary
victim. There will be many cases where a close relative witnesses a loved one being treated in hospital following trauma.
According to the claimant’s deceased wife, she had first awoken at 05.50 on 14 March 2010 and had then returned
to bed and slept until 07.00. At that time, she got up feeling unwell. She felt her right arm growing weaker and experienced difficulties with her speech. She was admitted
to hospital with a suspected stroke. At 08.20, a history was
taken by a triage nurse. She was then returned to A&E,
where she was seen by a senior house officer (SHO). He discussed the claimant’s wife’s case with another doctor, as he was unsure of the cause of her condition. At 09.40 the wife’s condition deteriorated.
The SHO accepted that his failure to re-examine her at that time was a significant failure on his part. The claimant’s wife was discharged from hospital at 11.36, which the first defendant accepted was negligent. Due to the wife’s
deteriorating condition, the claimant drove her to another hospital. She was diagnosed as having suffered a rare type of stroke. She died in August 2014.
It was common ground that, in the case of strokes,
thrombolysis could be used to break up the blood clot if administered within three hours of the onset of symptoms.
According to the first defendant, however, the claimant’s
wife was suffering from stroke symptoms at the time of awakening and was therefore excluded from thrombolysis treatment on the basis that the three-hour window might
have passed. There was no record of the 05.50 incident
first defendant accepted that aspirin should have been prescribed at some point between 10.40 and 11.00, but the wife claimed that that should have been done before 09.40. The claim brought by the claimant on his own behalf was
based on symptoms of post-traumatic stress disorder that he exhibited after witnessing the events after 09.40.
Dismissing both claims, the High Court judge held that
on the balance of probabilities, the 05.50 incident had not occurred. The claimant’s wife had awoken with some right-
sided heaviness and had experienced ataxia immediately after getting out of bed. Accordingly, the neurological deficit
probably existed before she awoke and there was no basis on which she should have been thrombolysed.
There had clearly been procedural failings, in particular as
to whose responsibility it was to make a diagnosis and to whom a patient should be referred in a difficult case such as the instant one where there were fluctuating symptoms
and a stroke could not be excluded. On the balance of
probabilities, the nurse’s training should have been such
that she did not refer the patient back to an SHO on the findings of her examination. The claimant’s wife should have been seen urgently after 08.20 by a more senior doctor.
However, since a stroke diagnosis would probably not have been made at that stage, the first defendant was not
negligent in failing to prescribe aspirin before the 09.40
deterioration, but shortly thereafter. On the expert evidence
it was not possible to conclude that, had the wife been prescribed aspirin at any time, she would have had a better
outcome. Therefore, it had not been demonstrated that
the first defendant’s breach of duty in failing to treat her promptly with aspirin had caused or materially contributed to her eventual outcome.
in the wife’s hospital notes. However, she claimed that the 05.50 incident showed that she was symptom-free at that
time so that the onset of symptoms could not have occurred until later, making her a candidate for thrombolysis. The
03
‘…there was no sudden appreciation of a “horrifying event” by objective standards…’ The claimant had a close tie of love and affection with his wife, was close to the incident in time and space and had
directly perceived the incident. What he had witnessed
from 09.40 was very distressing, consisting of the failure properly to diagnose and treat and the negligent discharge
of his wife who was, by then, very seriously ill. However,
there was no sudden appreciation of a “horrifying event” by objective standards and by reference to persons of ordinary
susceptibility; nor were those events wholly exceptional. It followed that the claimant’s claim as a secondary victim did not succeed.
04
Credit hire Although it is not directly related to personal injury claims, those involved in credit hire cases may be interested in
Accident Exchange Ltd v George-Broom and others (2015) EWHC 2205 (Admin).
The claimant was a car hire company which provided
vehicles to persons whose cars were off the road after a
road traffic accident. The cost of hire was usually borne by insurers, who often challenged the charge that was made. The four defendants were employed as rate surveyors
by a company which gave expert evidence on behalf of defendant insurers seeking to reduce such claims. The claimant brought proceedings against the defendants for contempt of court on the basis that they had given fraudulent
evidence of having checked the spot rates for comparable
vehicles within the relevant locality to demonstrate that the
claimant’s charges were inflated, whereas in fact no such checks had been made. The claimant relied on evidence
which it claimed established wide-ranging dishonesty and
fraud, consisting of records of telephone calls, some of which might have been material to their case but had been
deleted by the holder after 185 days. A police investigation concluded that the claimant’s allegations were not made out and that there was no basis for a criminal prosecution.
Pursuant to the Practice Direction to CPR 81, the defendants claimed that the proceedings against them had no real
prospect of success since the evidence of falsity was based
on hearsay or there was no proper evidence in support of the allegations.
They argued that the only admissible evidence in relation
to any specific allegation made by the claimant was that
which strictly and directly related to that allegation, and that broader evidence relating to events at the company
at which they were employed was not admissible. They
also submitted that there was insufficient public interest in pursuing the proceedings.
Refusing the applications, the High Court judges held that
for the purposes of the test in PD81- 16, it was not enough
to point to aspects of the claimant’s evidence which were of doubtful weight or questionable strength. The defendants’
contention as to the admissibility of evidence was wholly unrealistic and contrary to principle. There was much force
in the proposition that the court had to consider matters as a whole, not look at each allegation in isolation. The instant
case was not remotely one in which the contempt claim should be struck out for insufficiency of evidence.
Although the defendants had not gone so far as to submit
that the contempt proceedings ought to have been heard
within the 185-day period during which the telephone
records were held if they were not to fail for want of a fair trial, that was the corollary of their reliance on that material. The only basis on which delay might support a strike-out would be that a fair trial was impossible; it was not sufficient
merely to show that the passage of time had caused some difficulties for a party.
Whereas it was the first duty of the police and the Crown
Prosecution Service to investigate crime and bring criminals
to justice, it was the specific duty of the court to protect the integrity of the justice process. Those were different, albeit overlapping, aspects of the public interest. It appeared that
the decision not to prosecute the company or the defendants
was taken on the footing that the relevant evidential test had not been met. That test had no application to the instant proceedings; therefore, the question whether a prosecution would be in the public interest was never arrived at. As for
the position in the instant court, it appeared on the face of it that there was a substantial case to the effect that the course of justice had been comprehensively perverted throughout the country and that the defendants had played a part in that. There was therefore no basis on which the contempt claims should be struck out.
05
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.