Legal Watch Personal Injury January 2014 Issue 004
Damages/Fatal Accident Cases relating to damages in fatal accident cases are relatively rare and the case of Haxton v Philips Electronics Plc (2014) EWCA Civ 4 is therefore of particular interest,
In This Issue:
although, as the court made clear, the point in issue was
• Damages/Fatal Accident
one of some novelty. The claimant had suffered a reduction
• RTA/Liability
in her damages because of the operation of the Fatal
• Civil Procedure
Accidents Act. Could she recover the shortfall as a head of damage in her own claim?
• Civil Procedure/Litigation Friend
The claimant’s husband had died as a result of contracting mesothelioma through exposure to asbestos during his employment with the defendant for over 40 years. Subsequently the claimant, whom the defendant had never employed, was also diagnosed with mesothelioma; as she had come into contact with asbestos when she washed the deceased’s work clothing. Proceedings in the claimant’s capacity as widow and administratrix of her husband’s estate under the Law Reform (Miscellaneous Provisions) Act 1934, and also as a dependant under the Fatal Accidents Act 1976 were settled by consent, and damages for loss of dependency were based on the claimant’s remaining life expectancy being 0.7 years due to the mesothelioma. The claimant had also issued proceedings in her own right for damages for negligence and breach of statutory duty. Liability was again conceded and damages agreed at £310,000, but
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recovery of a further £200,000 was denied in relation to her
MBIG Seminar 22.05.2014 - Wellcome Collection,
future dependency claim. The claimant argued that but for
London, NW1
the defendant’s negligence, her life would not have been cut short and the assessment of her dependency claim in the first action would have been significantly greater. The issue was whether the claimant’s common law dependency claim in her own right was a recoverable head of damage. The claim was dismissed at first instance.
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In her appeal, the claimant submitted that it was in principle
not directly suffered by a claimant, a fortiori that should be
legitimate to allow as a head of damage a diminution in
the case where, as in the instant case, the reduction in the
value of a chose in action resulting from a negligent act.
dependency compensation was a loss actually suffered by
“...the reduction in the dependency compensation was a loss actually suffered by the claimant when her dependency claim under the Fatal Accidents Act was settled” Allowing the appeal, the Court of Appeal held that there was no reason of principle or policy which deprived the claimant from recovering damages which represented the loss she had in fact suffered as a result of the curtailment of her life by the defendant’s admittedly negligent action. The 1976 Act conferred a statutory right to recover for the loss of dependency and in the claimant’s claim under that Act she could not recover more than her actual loss; but there was no reason why the diminution in the value of that right resulting from the defendant’s negligence could not be recovered as a head of loss in her personal action. That did not interfere with the principles governing the payment of compensation under the legislation; they were left wholly unaffected. The claimant’s claim was a common law claim for damages for loss of dependency; it was one for diminution in the value of a valuable chose in action, a statutory right. There was nothing in the language of the 1976 Act or the authorities which suggested that there was any special attribute distinguishing that particular chose in action from any other. That head of loss was recoverable in law. Moreover, in the same way that a loss or diminution of a contractual right might be recoverable even though it was
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the claimant when her dependency claim under the Fatal Accidents Act was settled. The fact that the source of that right was statutory and not contractual was not a material distinction. The claimant’s personal dependency claim was not too remote: it was reasonably foreseeable that a curtailment of life might lead to a diminution in the value of a litigation claim and if a claimant had such a claim, a wrongdoer must take the victim as he finds him. It had to have been foreseeable to the defendant that the claimant would have dependency rights which would be diminished as a result of its negligence. The claimant was entitled to an additional £200,000. Haxton v Philips Electronics Plc (2014) EWCA Civ 4
RTA/Liability There are two cases under this heading. Both were decided
evidence on behalf of the defendant, along with a number
on the basis of what a prudent driver would have done in
of other witnesses who had been passengers on the upper
the circumstances.
deck. The trial was in respect of liability only. Dismissing the claim, the deputy High Court judge held
“The driver’s action was a reasonable reaction of a reasonable bus driver”
that where the claimant’s partner’s evidence conflicted with the defendant’s driver’s, the driver’s evidence was to be preferred. The defendant’s witnesses evidence was not internally inconsistent. The driver’s evidence was consistent with that of the other witnesses whose view was that the accident was the youth’s fault. None of those witnesses criticised the driver. If he had not sounded the horn the
In Cridland (Protected Party) v Stagecoach (South) Ltd [Lawtel 23/01/2014] the claimant had been a passenger on a double deck bus being driven by the defendant’s driver. Ahead of the bus and heading in the same direction was a youth who was riding a push scooter. When the bus was a few feet from the youth it was braked violently and the claimant was thrown forward suffering serious injuries. The defendant argued that the driver had seen the youth ahead of him, maintained observation and when he was a car length away slowed down to 11 mph, and could not overtake the youth because of an oncoming vehicle. He sounded his horn so that the youth could move aside and that his intention was to make him aware of his presence. The youth’s unexpected reaction was to make a gesture which appeared to be to throw his scooter into the air and motioning to throw it at the bus’s windscreen; and that the driver’s action in braking was to avoid that happening. The youth then carried on and disappeared from the scene. Evidence was given by a number of passengers and there was a CCTV recording from the bus. The claimant himself was too unwell to give evidence and had no memory of the accident. Evidence was given by his partner and litigation friend who had also been on the bus. The partner’s evidence was that before and after the sudden braking the driver had made abusive and obscene gestures at the youth and had allowed himself to become cross with him. The driver gave 04
youth would have carried on. The youth’s refusal to get out of the way was clear anti-social behaviour. The defendant had employed the driver for seven years; at the date of the accident he was experienced and properly trained. The driver was a credible witness and had a good personnel record. The defendant’s other witnesses were all on the upper deck of the bus and had a good view of the accident. The youth aggressively swung himself in the air bringing the scooter near the bus’s windscreen. The driver’s reaction in those circumstances could not be faulted. From the CCTV footage the driver’s gestures were not provocative or abusive, in any case the youth did not see them. It was the honking of the horn and not the proximity of the bus that caused the youth to make his gestures. The driver was aware of the oncoming vehicle which was visible from the CCTV evidence. The youth was aware of the bus but chose to remain in the road. His reaction was not one of alarm but a threat of violence. No reasonable driver could have predicted that the youth would have reacted in the way he did. The driver’s action was a reasonable reaction of a reasonable bus driver. He was not speeding and at the critical point he slowed down and braked. It was the youth’s gesture that caused him to brake and he had no alternative but to brake. The driver had not allowed himself to become cross with the youth. The accident was caused by the youth’s anti-social behaviour in making the gesture that he made.
The second case is Train v Secretary of State for Defence
he was satisfied of the motorcycle’s speed. A prudent driver
[Lawtel 23/01/2014].
would have waited until the deceased had passed unless
The claimant’s deceased husband had been riding his motorcycle down a road on a barracks when he crashed into the side of a minibus driven by a soldier, which had begun to turn right in front of the deceased in order to enter a filling station. The soldier said that he had observed the road and seen the deceased, but had concluded that he had enough time to make the turn as the motorcycle was far away, and that he had not seen the deceased after that. Witnesses at the scene gave evidence that the deceased had been travelling very fast and that he had glanced momentarily
he had been sure of the motorbike’s speed. Although the soldier had said that he was certain that he had enough time to make the turn, the court was not satisfied that he had assessed how fast the deceased was travelling. He should have seen that the motorbike was going in excess of 20 mph, and if in any doubt about that, waited. The deceased was the principal but not the only author of his misfortune. Damages recoverable were to be reduced by 80 per cent having regard to the deceased’s part in the accident.
to the left towards a group of soldiers before seeing the
Comment
minibus ahead and braking sharply. It was conceded that
It is a matter of semantics only but it is interesting that the
the deceased had been driving in excess of the speed limit.
judges in these cases both referred to the ‘prudent’ driver.
The issue was who had caused the accident.
In Stewart (Protected Party) v Glaze (2009) the trial judge stated that a driver’s actions had to be considered by
“A prudent driver would have waited until the deceased had passed unless he had been sure of the motorbike’s speed” Finding in favour of the claimant but with a finding that the deceased had been contributorily negligent, the deputy High Court judge held that the starting point was that the deceased had the right of way and that the soldier should only have turned if it was safe to do so. The deceased was travelling certainly in excess of 30 mph and probably in excess of 40 mph before he realised that the minibus was ahead. The soldier had been a consistent witness throughout and his account that he had observed the road before turning right and genuinely believed that there was sufficient time to turn was accepted. By driving over the speed limit and glancing to the left at the soldiers the deceased was unable to stop in time. Nevertheless the soldier should not have turned until 05
reference to the standard of a reasonable driver, whereas in Boyle v Commissioner of Police of the Metropolis (2013) the judge covered both bases by using the term ‘reasonably prudent’ driver . Cridland (Protected Party) v Stagecoach (South) Ltd [Lawtel 23/01/2014] Train v Secretary of State for Defence [Lawtel 23/01/2014].
Civil Procedure In the post Mitchell era it seems inevitable that there will be
an application to extend time for compliance as soon as
a flurry of cases confirming how in the future the courts will
practicable and before the deadline for compliance had
approach various forms of application. In the commercial
passed; (c) the claimant should have made a prompt
case of M A Lloyd & Sons Ltd v PPC International Ltd (2014)
application for specific disclosure of the categories of
EWHC 41 (QB) it was witness statements that were under
document sought and not simply incorporated a wish list of
consideration. This case also illustrates that an agreement
such documents in the body of a witness statement in the
between the parties may not be sufficient for the court.
forlorn hope that the court would make an order of its own
The claimant had brought a claim for breach of a
motion (emphasis added).
confidentiality agreement and passing off. The defendant was a company incorporated under the laws of Brunei. The claimant argued that the defendant was “legally extinct” and had no entitlement to litigate in the United Kingdom. The claimant was ordered to file and serve a witness statement by 25 October 2013 dealing with matters of fact, and a skeleton argument on matters of law, in connection with the defendant’s existence and entitlement to litigate. The defendant was ordered to file and serve a statement in response. By the date of the defendant’s application in December 2013, the claimant had failed to file a statement or skeleton. The claimant thereafter proposed a revised
“In light of the decision in Mitchell, the courts had taken a consistently robust approach to the late service of witness statements”
timetable which the defendant agreed. The claimant therefore did not attend the hearing of the defendant’s application but produced a draft statement which asserted that it had been unable to comply with the order because the registry for companies in Brunei would not release the requisite information without first receiving a number of documents from the defendant. The statement went on to list those documents which the claimant believed it was necessary for the defendant to disclose. The claimant’s counsel attended court the morning before judgment was
As the matter currently stood, the claimant was precluded by the operation of CPR 32.10 from calling at trial any intended witness in respect of the issues identified in the order. The burden of proof in respect of the issues raised about the defendant’s standing fell upon the claimant. In the absence of evidence, the claimant’s contentions in respect of those issues would fail unless the court was persuaded to grant relief from sanctions under CPR 3.9. The court was
to be handed down and made fresh submissions.
entirely satisfied that there was no realistic prospect that
The High Court judge held that the following matters were
decision in Mitchell, the courts had taken a consistently
abundantly clear: (a) the claimant should have informed the court of its alleged inability to provide the evidence before the order was made; (b) if the fact that the claimant would be unable to comply with the order only came to light after it had been made then the claimant should have made 06
relief from sanctions would ever be granted. In light of the robust approach to the late service of witness statements. The claimant’s delay of nearly three months was serious and the resultant breach could not be categorised as trivial. Further, there was no evidence of any good reason for the delay. It was not open to the claimant to allow weeks to pass
without taking positive steps to comply with the order on the basis that further disclosure, for which no formal application had been made, was awaited. The fact that the claimant had proposed a consent order extending time fell far short of salvaging its position. It was clear from CPR 3.8(3) that the time for doing acts ordered by the court could not be extended by agreement between the parties. It followed that even if the parties had reached a concluded agreement on an extension of time it would not have been effective unless the court formally endorsed it. The court declined to take the course advocated by the defendant’s application. Its response to the claimant’s default was unduly timid. In the circumstances, the proper approach was to make an order debarring the claimant from raising any issue at trial relating either to the existence of the defendant or its entitlement to litigate in the UK. The court had power under CPR 23.11
to re-list an
application where it had proceeded in the absence of one of the parties, but it was a power that was to be exercised sparingly. As a result of the claimant’s decision not to attend, the judgment which was to be handed down the following day had to be re-drafted to take into account the fresh submissions raised by its counsel. A disproportionate amount of the court’s time had been taken up. A party could not simply assume that it could absent itself confident in the assumption that CPR 23.11 afforded a comfortable fallback position if the court’s order was not to its liking. We also mention briefly the case of Webb Resolutions Ltd v E-Surv Ltd (2014) EWHC 49 (QB) which shows that the Mitchell approach applies equally to an application seeking permission to appeal out of time. A party in default seeking an extension of time for a renewed application for permission to appeal had to satisfy the same tests as were applied to the default in Mitchell. In the instant case the default was not trivial; the delay had been for a period of about three times that permitted by the rules and there was no good reason for the delay. Accordingly, the earlier order extending time was set aside and permission to appeal was refused. M A Lloyd & Sons Ltd v PPC International Ltd (2014) EWHC 41 (QB) 07
Civil Procedure/Litigation Friend From time-to-time it becomes necessary for one party to
claimant’s solicitor to settle the claim as soon as possible.
litigation to suggest that a claimant’s litigation friend may
The solicitor sought the court’s guidance upon whether
no longer be the most suitable person to fulfil that role. The
the father’s appointment as litigation friend should be
most common situation that we have experienced is where
terminated, and whether the case should be settled even
a mother finds it impossible to detach herself from her role
though it remained unclear whether the claimant had
as mother to make objective decisions as litigation friend.
suffered a brain injury, and what his disabilities might be in
In M (A child) v London Borough of Lambeth and others
the future.
(2014) EWHC 57 (QB) it was the suitability of the claimant’s
The High Court judge dealing with the application held that
father that was under scrutiny.
any settlement would require the approval of the court, but it would not be appropriate for a claimant’s legal advisers to pursue a negotiated settlement unless there was a reasonable
“It was probable that if a new litigation friend were to be appointed the claimant’s parents would remain as unco-operative as they currently were...”
prospect of the court approving it. It was probable that if a new litigation friend were to be appointed the claimant’s parents would remain as unco-operative as they currently were, and that would not assist in advancing the claimant’s best interests. Having considered the evidence, and the claimant’s counsel’s thoughtful submissions, the best course in the circumstances was for the claimant’s legal representatives to seek to negotiate settlement on the basis of the existing medical and other evidence, as instructed by the claimant’s father. M (A child) v London Borough of Lambeth and others
The claimant had fallen from the window of a block of flats and suffered serious injuries. He was aged four at the date of the accident. By the date of the instant hearing he was aged approximately 14. His medical expert stated that he had probably suffered a brain injury and there was “significant brain impairment” caused by the accident. However, the defendant’s experts stated that the claimant’s impairments “were consistent with his pre-injury functioning” and on balance were probably “secondary to his inherent pattern of development and may have been contributed to by social and cultural factors”. The claimant’s father and litigation friend was no longer prepared to co-operate with medical experts and was not amenable to putting recommended support in place for the claimant. He had instructed the
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(2014) EWHC 57 (QB)
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