Legal Watch Personal Injury March 2014 Issue 009
Occupiers’ liability Biddick (deceased) v Morcom (2014) EWCA Civ 182 is a case which deals with a householder’s liability towards a contractor, injured whilst working at his property. It
In This Issue:
illustrates the level of involvement required on the part of the
• Occupiers’ liability
householder to attract liability for the contractor’s injuries.
• Employers’ liability
The appellant/defendant, the personal representatives of
• Jackson/Mitchell
the deceased householder, appealed against a judgment
• From within Plexus
that his estate was liable to the respondent/claimant in negligence. The claimant cross-appealed against a finding
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that he was two-thirds contributorily negligent. The claimant, a multi-skilled tradesman, had been seriously injured while fitting insulation in the deceased’s loft. Entry to the loft was via a ladder through a hinged hatch door, which opened by being pulled downwards with a long pole. A hook in the pole could be used to lock the door. The deceased, who was 80 years old, suggested that while the claimant was insulating the inside of the hatch door, he, the deceased, would stand underneath, keeping the door in the locked position with the pole to prevent the mechanism working itself loose from the vibrations of the claimant’s drill. The claimant thought that was a fanciful possibility, but agreed to the proposal. The claimant fell through the loft aperture when the deceased left his position to answer the phone. The claimant’s primary case was that the hatch opened as a result of vibration. The judge rejected that claim. He also rejected the possibility that the claimant had fallen on the door. He thought it most likely that the lock had not been fully in position and that the claimant had overreached himself, applying a degree of force to a hatch door that was only partially supported. He concluded that if the deceased had not involved himself in the work performed by the claimant,
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there would have been no basis for a finding of negligence,
properly to perform the small task which he undertook, but
but that he had brought himself into close proximity with
the claimant was principally to blame for the unsafe method
the claimant by virtue of his proposal. Leaving his position
of work which he chose to adopt.
to answer the phone, the deceased had failed to exercise his duty of care to the requisite standard and was liable to the extent of a third. The issues on appeal were (i) the cause of the claimant’s fall; (ii) the alleged duty of care by the deceased; (iii) the extent of contributory negligence by the claimant. Rejecting both the appeal and cross-appeal, the Court of Appeal found on the evidence, it was impossible to say that the judge had arrived at a conclusion regarding the cause of the claimant’s fall which had not been open to him . The deceased had assumed responsibility, not for bearing the claimant’s weight if he happened to fall on the hatch door, but for undertaking to ensure that the latch remained closed. In involving himself in a potentially hazardous activity, he put himself in a degree of proximity to the claimant such that it was foreseeable that if he neglected his task, the hatch might work itself open and cause the claimant to fall and suffer injury. It was fair and reasonable to find that a duty of care had arisen. Even though the deceased’s concern had been vibration, and vibration had not been found to be the cause of the hatch opening, the deceased had nevertheless chosen to abandon his post, which was a breach of his duty of care. While reliance was a prerequisite in economic loss cases, it did not matter that the claimant had not relied on the deceased’s input. Once the deceased had undertaken to ensure that the hatch remained closed, he had a duty to perform that task carefully even if the claimant did not see his role as an element in his own safety.
“...the deceased had…. chosen to abandon his post, which was a breach of his duty of care” The judge’s reasoning for the apportionment of liability was entirely sound: The deceased had been negligent in failing 03
Biddick (deceased) v Morcom (2014) EWCA Civ 182
Employers’ liability In the case of Humphrey v Aegis Defence Services Ltd [Lawtel
his duty, to himself and his colleagues, seriously. It was
05/03/2014] the claimant, a former marine, had worked as
foreseeable that an unfit interpreter would drop a stretcher,
a close protection escort for military personnel in Iraq under
but foreseeable only that it would cause minor soft tissue
contract to the defendant in teams which included Iraqi
injury rather than serious injury.
interpreters. Physical fitness was a condition of his contract
that it was the responsibility of individuals to bring safety
“It was foreseeable that an unfit interpreter would drop a stretcher, but foreseeable only that it would cause minor soft tissue injury rather than serious injury.”
hazards to the attention of team leaders. He told the court
The defendant had carried out a risk assessment and
that he had had reservations about the interpreter’s capacity
reviewed it immediately before the test. The interpreter had
from an early stage as he had looked uncomfortable wearing
not indicated that he would give up and no concern had
the heavy, specified kit. During the test and without warning
been voiced by the claimant or other team members to the
the interpreter let go of his handle, causing the claimant’s
supervisor. The weight being carried on the stretcher was
arm to be wrenched downwards, injuring his shoulder.
not excessive and, while the test was conducted in the
The defendant had been in control of the fitness test and
afternoon, there was no evidence that it was excessively
accepted that they had owed the claimant a duty of care.
hot or that heat exhaustion was a causative factor. The
and he was regularly tested. Interpreters were also tested but were less motivated to be physically fit as they were in short supply and were likely to be employed even if they failed. During a test, held in the afternoon, a team of four men, including an interpreter, carried a man on a stretcher by one handle each. The team was briefed by an instructor, a medic was present, participants were asked if they had any injuries before and after the test and a supervisor ran alongside the teams during the exercise. Participants had been given a week’s notice. The claimant had read the standard operating procedure instructions which stated
Rejecting the claimant’s claim, the deputy High Court judge held that interpreters were usually civilians rather than exmilitary and fitness was not such an important part of their lives. It was sensible for the defendant, who had made real efforts to increase the interpreters’ fitness levels, to include them in training exercises, but they had previously lost their grip on stretchers and dropped out of exercises. The claimant and other contractors grumbled about them and their different treatment, but had made no formal complaints about their impact on safety even though individuals were responsible for bringing safety hazards to the defendant’s attention. The claimant was a former soldier who took
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injury was plainly caused by the interpreter’s unfitness and decision to stop. The protocol was to replace a team member who showed signs of injury or high fatigue, but a fitness test had to simulate actual conditions, so prematurely removing someone who was out of breath would have rendered the test worthless. The interpreter showed signs of strain but the claimant and the supervisor had had the opportunity to observe him and neither considered him to be a risk to their safety. The supervisor had the primary responsibility, but the team members knew their responsibility to each other and there was no evidence that they mentioned anything among themselves or halted to give the interpreter a rest. They did not believe that he represented a hazard and it was thought
that the team was within safe parameters. The defendant’s work in Iraq was a desirable activity within the meaning of the S1 Compensation Act 2006. Interpreters were essential and it was reasonable to apply more lenient fitness standards to them because of their scarcity. If the purpose or social value of an activity was sufficiently
had caught the first defendant “backstabbing” her and that he had neglected her. The claimant contended that the third defendant had been aware that she had been sidelined from paralegal work and of the stress caused to her as a result of the conduct of and issues experienced with the first three defendants.
important, it justified an increased assumption of risk. It
The claimant conceded in the witness box that the
was reasonable of the defendant to require interpreters to
evidence showed that not only had the second defendant’s
take part in the test even if they were not at the minimum
instructions been appropriately formulated, but that her
standard of fitness, which introduced extra danger, but if
response to them had been inadequate or incorrect.
that risk was not taken important work would have been prevented. The court was not persuaded that the defendant had not monitored the exercise carefully and was not satisfied that there had been a failure of duty of care.
Dismissing the claim, the deputy High Court judge held that the claimant was an unreliable witness, as was evident from the inconsistency of her complaints, her concessions on important matters and her assertions about the second
A second case under this heading is McCade v Critchlow
defendant. Her criticisms of all four defendants were
and others [Lawtel 04/03/2014]. It includes a brief review of
rejected; they had been unwarranted and unfair. Conversely,
the threshold that a claimant must establish to found a claim
the testimony of the first three defendants was accepted.
for work related stress. The claimant was employed by the fourth defendant firm of solicitors as a paralegal. The first and second defendants were partners in the firm and the third defendant was the managing partner. The claimant’s employment was lawfully terminated for gross misconduct, after which she brought employment tribunal proceedings for sex discrimination which were dismissed. Following the termination of her employment, she was diagnosed with paranoid schizophrenia. She alleged that, whilst employed by the fourth defendant, she had not received the training, support and feedback that she would expect as a paralegal. She considered that she had been doing work for which she had not been employed, namely secretarial work, which demotion to administrative status she perceived as sex discrimination. The claimant made allegations of professional misconduct against the second defendant claiming she had received incomplete instructions from him and that he had failed to provide any helpful guidance and support, in breach of the implied duty of mutual trust and confidence. The claimant also alleged that that had caused her distress and that, in failing to see the second defendant as a problem, the fourth defendant had been negligent. She further alleged that she 05
“the indications of impending harm to health arising from stress at work had to be plain enough for (the defendants) to realise they should do something about it” The first and second defendants had done their best in a competent manner consistent with the implied duty of mutual trust and confidence. The claimant had been provided with work within the ambit of her employment contract; the tasks given to her had fallen within work properly given to a paralegal without a hint of unequal treatment or discrimination. The defendants had not (a) intended to demote, ostracise or leave the claimant lacking in support; (b) failed to provide adequate guidance; (c) engaged in sexual discrimination or other unequal treatment. The factual basis relied upon had simply not been made
out. There had been no proven breach of duty arising under contract or at common law. The threshold that the claimant had to establish order to trigger a duty on the defendants to take steps to prevent injury in the workplace, namely that the indications of impending harm to health arising from stress at work had to be plain enough for them to realise that they should do something about it, was not made out. There was no evidence that the claimant had demonstrated signs of stress at work or that she had provided indications of impending harm to health that would properly allow the court to find a causal connection between the development of her paranoid schizophrenia and her employment. It was possible for stress to be caused by an employer’s conduct whereby an employee was starved of duties he had been employed to undertake, however there was no factual basis to support such a conclusion. The claimant had failed to establish any injury sounding in damages attributable to her complaints about her workplace experiences. The claim was hopeless. Humphrey v Aegis Defence Services Ltd [Lawtel 05/03/2014] McCade v Critchlow and others [Lawtel 04/03/2014]
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Jackson/Mitchell This week’s case under this heading is Associated Electrical
the claimant had not applied for an extension before the 29
Industries Limited v Alstom (UK) (2014) EWHC 430 (Comm)
October deadline or retrospectively between 29 October
The claimant had claimed an indemnity or a contribution from the defendant in respect of a claim brought against the claimant and the defendant for damages following a
and 13 November. The failure to apply for an extension before 13 November did not give the CPR’s time limits the respect that was demanded.
former worker’s death from mesothelioma. The claimant
The claimant could have asked the defendant for an
served its claim form in September 2013. The defendant
extension long enough before the deadline to enable it to
filed an acknowledgement of service on 1 October stating
apply to court if necessary; by the time it had asked, any
its intention to defend the claim, giving the claimant until 29
application would have to be made retrospectively. That
October to serve the particulars of claim. On 29 October,
displayed indifference to compliance with the CPR. The
the claimant requested an extension of time from the
period of non-compliance, 20 days, was not trivial.
defendant. The defendant refused and made its application on 13 November. The claimant served the particulars on 18 November and applied for a retrospective extension of time in January 2014. The court considered (i) the relevance of the timing of the claimant’s extension application; (ii) whether its non-compliance was trivial; (iii) whether there was a good reason for non-compliance; (iv) whether the possibility of the claimant issuing fresh proceedings was relevant; (v) the balance of justice, having regard to the requirements of the CPR.
“It was not for the instant court to determine whether a second action should be struck out as an abuse.” The High Court judge held that the timing of the extension of time application was inconsequential so far as it concerned criticism of its delay after the issue of the defendant’s strike-out application. Cross-applications for extensions of time had little practical purpose: the court had to hear two applications which were two sides of the same coin. However, that did not answer the criticism that 07
Investigation of the claim had not been straightforward. However, the claimant appeared to have carried out investigations
before
issuing
proceedings,
and
the
particulars did not reflect much by way of further investigations into the key issue. There had been sufficient time to draft the pleading after the claimant learned that the claim was disputed. It had not shown good reason for not serving the pleading by 29 October. Further, if difficulties in investigating the claim had justified the particulars being late, the claimant should have made a timely request for an extension. It was not for the instant court to determine whether a second action should be struck out as an abuse. However, if the defendant’s application were granted, there was the real prospect that it would result in further litigation and the substantive dispute being determined after more cost delay. Courts were discouraged from giving too much weight to the prospect of unprofitable hearings, but Mitchell did not decide that that had always to be entirely disregarded. If the decision depended only on what would be just and fair between the parties, the court would not strike out the claim and would extend time, given that the noncompliance had been remedied after 20 days and had not disadvantaged the defendant. However, the court had to strike a balance between the interests of the parties and
the interests of others who might be affected. Nothing in Mitchell suggested that the court should disregard justice between the parties altogether. Where relief from sanctions was sought, CPR 3.9 required the court to consider all the circumstances; Mitchell said that considerations other than those specifically mentioned in CPR 3.9 were to be given less weight. That did not mean that, when exercising all powers under the CPR, the court had to give more weight to those specific considerations than to other aspects of the overriding objective and other relevant circumstances. Mitchell’s guidance was directed to applications under CPR 3.9. However, that did not help the claimant. The court still had to give effect to the overriding objective. The point at issue was the importance of enforcing the requirements of the CPR. It was considered that once the culture of a firm line on enforcement was accepted, there would be fewer applications under CPR 3.9. Although, as between the parties, it was disproportionate to strike out the claim, the emphasis given to enforcement of the CPR to encourage procedural discipline led to the conclusion that the claim should be struck out and the extension of time refused. Associated Electrical Industries Limited v Alstom (UK) (2014) EWHC 430 (Comm)
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From within Plexus Mirza v Norbert Dentressangle Logistics Limited We represented the defendant in this claim, brought by the claimant following a road traffic accident. The defendant’s lorry driver collided with the rear of a car owned by the claimant. The lorry driver reported that the circumstances of the accident were suspicious, indicating that the accident had been staged. Those suspicions increased when claims for personal injury were brought by, amongst others the claimant, who later accepted that she was not in the car at the time of the collision. None of the claims for personal injury progressed, but the claimant pursued a claim for damages for credit hire through Accident Exchange, and for the loss of value of her car. The claim was valued at around £46,000, predominantly credit hire. During the course of the proceedings we obtained various orders against the claimant, and in particular an order that she disclose documentation in relation to her car, and if she could not, that she explain who the car was sold to, when it was sold, and how much she received for it. The claimant did not comply with the order, and we obtained an unless order, the default position being strike out. The claimant complied with some, but not all of the requirements of the unless order, and we obtained an order that the case be struck out as a result. The claimant made an application for relief pursuant to CPR 3.9, and the matter came before DDJ Stacey sitting
this, and because the claimant had only failed to comply with one order, her application was allowed and the case reinstated. That decision by DDJ Stacey was made the same day that the Court of Appeal handed down judgment in Durrant v Chief Constable of Avon & Somerset Constabulary (2013) EWCA CA Civ 1624, Lord Justice Richards recording, inter alia, “Equally, however, if the message sent out by Mitchell is not to be undermined, it is vital that decisions under CPR 3.9 which fail to follow the robust approach laid down in that case should not be allowed to stand. Failure to follow that approach constitutes an error of principle entitling an appeal court to interfere with the discretionary decision of the first instance judge. It is likely also to lead to a decision that is plainly wrong, justifying intervention on that basis too” We appealed to the the designated civil judge, HHJ Gregory, who heard the appeal on 3 March. He held that the decision of DDJ Stacey was wrong. He had taken into consideration factors that were irrelevant having found, quite correctly that there was a non trivial default, with no good reason for it. It followed that the decision of DDJ Stacey was reversed and the claimant’s case stands struck out with our client’s costs to be paid by the claimant. Mirza v Norbert Dentressangle Logistics Limited For further details contact: Justin Collins
in Walsall County Court on 17 December. He held that the
T: 0207 220 5928
default by the claimant was not trivial, and that there was
E: Justin.collins@plexuslaw.co.uk
no good reason for her default, and as such the sanction should “usually” apply. However, this meant that the court had discretion, and litigation had to be conducted justly. Exercising that discretion he found that the case was ready for trial, it was a large case, and that the defendant had not suffered any prejudice, and indeed had obtained some useful cross examination material for use at trial. In light of
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