Legal Watch: Personal Injury 18th December 2014 Issue: 045
Vicarious liability The Supreme Court decision in the case of Woodland v Swimming Teachers Association (2014) raised concerns about
In This Issue:
vicarious liability. Defendants will therefore gain comfort
• Vicarious liability
the extent to which the courts might extend the concept of from the judgment in NA v Nottinghamshire County Council
• Psychiatric injury/secondary victim
authority’s duty of care. However, the court’s approach to the
• Civil procedures/striking out
(2014) EWHC 4005 (QB) in which limits were placed on a local exercise of its discretion under S33 Limitation Act 1980 is still worrying, given the accepted impact of the delay on factual witness evidence.
The claimant had spent much of her childhood in care, living
both with her mother and in several foster placements. She claimed that in the 1970s and 1980s she had been physically
• Civil procedure/evidence • Jackson/Mitchell/Denton • In the news: claims against Jimmy Savile’s estate • Legal Watch: Personal Injury Year Book
abused by her mother’s partner, and that she had been physically, sexually and emotionally abused by two sets of foster carers. She put her claim in two ways. First, she claimed
that the local authority had breached its duty of care, either by
failing to remove her permanently from her mother’s care, or by otherwise failing to protect her. Second, she claimed that even though the local authority had exercised reasonable care
in terms of her foster placements, it was responsible for the
foster carers’ abuse, either on the basis of vicarious liability or on the basis that it owed her a non-delegable duty of
care. Her claims having been statute-barred since July 1998, she asked the court to exercise its discretion under S33 to
disapply the limitation period. The defendant claimed that, given the passage of time, a fair trial was impossible. In any event, it claimed that it had dealt with the claimant’s case appropriately. The issues were whether (i) the limitation period
should be disapplied; (ii) the local authority had breached its duty of care to the claimant in respect of either of her claims.
Finding in favour of the defendant, the High Court judge
held that it was possible to have a fair trial, and it was fair and just to disapply the limitation period. In cases involving
historic child abuse, delay was critical only to the extent that
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it affected the defendant’s ability to defend. If a fair trial was
defendant could not be fixed with either vicarious liability or
was possible, the balance of injustice had to be considered.
it did not have the requisite degree of control over its foster
not possible, that was the end of the matter, but if a fair trial Ultimately the court’s discretion was wide and unfettered.
Although S33 was principally concerned with delay after the expiry of the limitation period, delay beforehand was not
necessarily irrelevant. However, where the claimant was a child for much of that period, any such delay was likely to
be less significant than it otherwise would have been. The claimant had a reasonable excuse for the post-expiry delay:
when she first disclosed the abuse, she felt that she had not been believed; and between the ages of 18-21 she had
been addicted to heroin and had not been in any condition to commence proceedings. Many claimants in historic sex
abuse cases turned to drugs or alcohol as result of their experiences and the inhibitions caused by the abuse often made it difficult for them to describe what had happened. Such considerations could provide a good reason for
delay. The prejudice caused to the defendant was relatively
limited. Although many of the social workers had either died or had little recollection of events, substantial contemporary documentation
survived,
providing
a
reasonably
comprehensive picture. Moreover, the parties’ experts were able to express their views, despite the passage of time.
As to the merits, both the failure to remove and the failure to protect claims failed. The allegations of negligence were wide-ranging, unspecific and unsupported by expert evidence. The social workers had been dealing with a
challenging situation requiring balanced judgments. In
such circumstances, professional negligence would not be established without expert evidence.
‘...it was not fair, just or reasonable to impose a non-delegable duty’ The claimant’s claim that the defendant was responsible
for the foster carers’ abuse also failed. Although many of her allegations against the foster carers were proved, the 02
a non-delegable duty of care. In terms of vicarious liability, parents. It did not have day-to-day control over how they looked after the children placed with them. Foster carers
were not providing family life on behalf of the defendant;
it was simply promoting the welfare of children in its care by placing them in foster homes where possible. The five defining features of a non-delegable duty of care identified
in Woodland were present. At the relevant time, the claimant was a vulnerable child in the care of the defendant and she had no control over how it performed its obligations. By
placing her in foster care, the defendant had delegated both its ability to make day-to-day decisions and its duty to care
for her and protect her from harm. However, it was not fair,
just or reasonable to impose a non-delegable duty. That would impose an unreasonable financial burden when it was
in the public interest that local authorities should be able to use their scarce resources to provide fostering services.
There was also a danger that imposing a non-delegable duty might make local authorities unnecessarily risk-averse
in relation to foster care. While placing a child with foster carers might be regarded as inherently risky, the benefits made it a risk worth taking, provided that reasonable care was taken to ensure that the placement was suitable.
Psychiatric injury/secondary victim Case reports relating to claims by secondary victims of
claimant’s psychiatric injury might have arisen more from
Southend University Hospital NHS Foundation Trust (2014)
consequence of the injury or threatened injury to his wife in
alleged psychiatric injury are rare and so Wild and another v EWHC 4053 (QB) will be on interest to those dealing with such cases.
The claimant’s wife had been admitted to hospital expecting to deliver a baby, but midwives were unable to find its
heartbeat. When other medical professionals assessed the wife and the foetus, it became apparent to the claimant
that something was wrong. A fifth person arrived with a scanner, assessed the wife and said “I concur”, which
deeply distressed the claimant, who thereby learned that
the foetus had died. The claimant and his wife were told that the baby would have to be delivered the following day.
The trust admitted that its negligence had led to the stillbirth and that it was liable to the wife for nervous shock. It was
not disputed that what the claimant had experienced had
generated sufficient shock to have foreseeably caused
psychiatric illness. The issue was whether he was able to claim damages for nervous shock as a secondary victim.
The claimant submitted that because the foetus was
considered in law to be part of the mother, she was properly described as the primary victim. The effect of Taylor (2013) was not that a secondary victim could not claim for nervous
shock where the first manifestation of the injuries sustained
by the primary victim had occurred in front of the secondary
victim but was separated in time from the negligent act or omission. His realisation that the baby had died qualified as the observation of a horrific event within the meaning of Alcock (1992) and it was not a relevant distinction that
in the successful nervous shock claim of Walters (2003)
a mother’s shock had started with the manifestation of a serious condition whereas in the instant case the shock began with the realisation of the baby’s death.
concern for the unborn child than his wife, his shock was a that her foetus was damaged or destroyed by the relevant negligent act.
‘(The claimant’s) experience did not equate to actually witnessing horrific events leading to a death or serious injury’ The use of the expression “external event” by the authorities was explained by the context of those claims which were
all made by those who were not directly participating in the events which had engulfed the primary victims. It was
arguably going too far to say that the reference to the “fact and consequence of the negligence” in McLoughlin (1983)
meant that not only the first consequence for the primary victim but the negligence itself had to be synchronous with
the sustaining of shock by the secondary victim. The facts of Alcock were analogous to those of the instant case in which
the claimant had experienced a growing and acute anxiety which started when the midwife failed to find a heartbeat and
developed because of the staff’s behaviour. His experience
did not equate to actually witnessing horrific events leading to a death or serious injury. Given the arbitrary line drawn
between classes of claimant in these types of cases, the
fact that cases similar to the instant one might never be able to succeed was not a ground for extending or modifying the
control mechanisms in nervous shock cases, particularly when the higher courts had so comprehensively considered
Dismissing the claim, the deputy High Court judge held
the issue. The claimant’s case was materially different from
to say that the wife was a primary victim. Even though the
realisation that the baby had already died.
that the only proper way to characterise the situation was
Walters, being based on an “event” which started with the
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Civil procedures/striking out Once liability has been admitted it has always been difficult to dismiss a claim for want of prosecution. However, that is
what in effect happened in Zaman v Paradise UK Ltd [Lawtel 15/12/2014].
The claimant had worked for the defendant as a waiter. He had been injured at work in 2007 while unloading a lorry. He complained of concussion, a fracture and psychiatric harm
consisting of post-traumatic stress disorder. Liability was
admitted. Proceedings were issued claiming over £100,000. The claimant served some medical evidence. The defendant
filed a defence in 2010 admitting liability. The claimant obtained judgment on liability and the quantum hearing was
allocated to the multi-track. The defendant thought that the claim was exaggerated, particularly in respect of loss of
earnings and that although the claimant alleged that he was unable to work, he was doing so. The defendant obtained
surveillance evidence. The proceedings became protracted. The defendant twice applied for unless orders and the proceedings were stayed on the basis that the claimant had
to apply to set aside the stay and comply with the directions
made in the proceedings or his claim would be struck
out. The defendant then applied to strike out the claim on ground of abuse of process, delay, dishonest exaggeration and non-compliance. The Master accepted that there had not been dishonest exaggeration. He found that there had
been extended non-compliance. He struck out the claim as
an abuse of process on the basis of the claimant’s failure to take the necessary steps to bring the case to trial.
‘It was a bold thing for the Master to have struck out proceedings where liability had been admitted…’ Dismissing the appeal. the deputy High Court judge held that
the Master had based his decision to strike out for abuse of process on the fact that the claimant had not demonstrated an intention to bring the claim to a conclusion. He had set
out extensively and analysed the history of the litigation. That demonstrated that, more than once, the claimant had
been in a position where it was clear that the defendant
would seek to strike out if he did not get on with his claim. Those signals had been conspicuously ignored. The only sensible conclusion from the Master’s judgment was that
he intended the circumstances that he catalogued to be the
reasons for his conclusion. It was an oversight not to have
referred again, as he might have done, to the claimant’s non-compliance with court orders. It was plain that he had that in mind when coming to his conclusion. It was true that
the Master did not in terms consider prejudice or address
the possibility of other sanctions. The issue of whether his solicitors were incompetent was of limited relevance. It was
a bold thing for the Master to have struck out proceedings where liability had been admitted and was not in issue for
six years and the claimant was likely to be entitled to some
The claimant appealed and argued that the Master had
damages, even if modest. However, he had done nothing
trial was caused by him or his solicitors, and had not given
for trial had been given in 2011 and 2012 but nothing had
been wrong to infer that the delay in bringing the matter to
effective to bring the damages hearing to trial. Directions
adequate reasons for his decision.
happened. The Master had exercised his discretion in accordance with principle. His decision was not outside the acceptable range.
04
Civil procedure/evidence The case of XYZ (Claimants) v Various (2014) EWHC 4056
be bound by any decisions made by the court in respect
another’s insurer into proceedings, primarily to ascertain the
if it was part of the “insurance” trial; otherwise there was
(QB) looked at the issue of whether one party can join
of the insurance policies, and that could only be achieved
nature and level of the cover it would provide.
a risk of inconsistent decisions. The respondent objected
The proceedings related to group litigation in which the claimants sought damages from private hospitals in relation
to the supply of defective breast implants. The defendant
companies had brought Part 20 claims against the company which supplied them with the implants. The company was dormant and had no assets. It had relevant insurance policies with the respondent insurer. The second defendant
private hospital (TMG) was insured by the applicant.
and submitted that the application was misconceived and
premature: there was no issue between it and the dormant company, and there might never be any issue between it and the applicant or the respondent and TMG. It argued that
CPR19.2(2)(a) did not apply because the reference to “the
matters in dispute in the proceedings” related exclusively to the matters in dispute between the claimants and the defendants.
There was a dispute between the defendants and their
Rejecting the application, the High Court judge held that the
Directions had been given with a view to a resolution of
The dispute between the defendants and the dormant
a case management conference had been scheduled. The
as were the disputes between the defendants and their
insurer. The applicant insurer sought a declaration that the
19.2(2)(a). All the matters in dispute in the proceedings
respective insurers as to the scope of the insurance cover.
respondent’s second submission could not be accepted.
the issues between the defendants and their insurers, and
company was now a matter “in dispute in the proceedings”,
dormant company was not in dispute with the respondent
insurers. However, the application did not come within CPR
respondent’s insurance of the dormant company would
could be resolved without the addition of the respondent.
respond to its liability, if any, to TMG. The applicant aimed to bring the respondent into the litigation so that it could participate in the trial of the issues between the defendants and their insurers. It was assumed, for the purposes of
the instant application, that at least some of the claimants would succeed in their claims and that TMG would seek
to recover against the dormant company to the extent that it was not covered by its policy with the respondent. The dormant company would then become insolvent and direct
claims would be made against the respondent. Whether
‘The instant application was an attempt… to establish in advance the depths of another insurer’s pockets’
TMG, the applicant or the claimants would succeed against
When considering CPR 19.2(2)(b), it was not required that
held by the dormant company.
cause of action. What was required was that the issue was
the respondent would depend on the terms of the policy The applicant submitted that the more insurers who were involved in negotiations, the greater the likelihood of an early
resolution of the claims. It argued that if settlement was not
reached, it was desirable that the respondent insurer should
the issue to be determined should constitute an existing
“connected to” the matters in dispute in the proceedings.
There was no connection between the issue of the scope
of the insurance cover provided by the respondent to the dormant company from which TMG and the applicant
05
might benefit, and either the matters in dispute between the claimants and defendants in the main action, or the
matters in dispute between the defendants and the dormant
company. Its insurance position was quite separate from its liability, if any, to the defendants. The instant application was an attempt by TMG and the applicant to establish in
advance the depths of another insurer’s pockets. If the applicant’s submissions were correct, CPR 19.9(2)(b) would
entitle a claimant in a personal injury case to join into
proceedings a defendant’s insurers, seeking a declaration as to the scope of the insurance available to meet the claim.
That would cut across years of jurisprudence to the effect that a claimant must take a defendant as he finds him. It was
overwhelmingly likely that should there be an issue between the applicant and the respondent, it would be considered
and determined by the same judge as determined the issue
between the applicant and TMG. It was not inconceivable
that the issues would ultimately be decided by the Court of Appeal. Either way, the risk of inconsistent decisions was low.
With respect to CPR 20.9(2)(a) and (c), TMG and the applicant would have the same difficulty that they had under
CPR19.2. There was no connection between their claim for a declaration and the claims being made by the claimants.
The court could not make the order sought under its general case management powers. Although the CPR could be applied flexibly and even imaginatively in furtherance of the overriding objective, it was not permissible to use a general case management power in such a way as to circumvent
the effect of specific rules. The application was designed to
establish in advance how much money was available from
the respondent. That was not a matter of case management.
06
Jackson/Mitchell/Denton Erol v Global Fashion Links Ltd [Lawtel 11/12/2014] is
an interesting case for two reasons. First, it involved an application to set aside a default judgment in the postDenton era; and secondly it looked at the impact of a
claimant’s failure to serve a response pack with the claim form and particulars of claim.
In so far as it is relevant to this report, CPR 13.3 states: (1) the court may set aside or vary a judgment entered under Part 12 if –
(a) the defendant has a real prospect of successfully defending the claim; or
(b) it appears to the court that there is some other good reason why –
(i) the judgment should be set aside or varied; or
on, inter alia, statements from other traders in support of the application and to establish a sufficiently arguable defence.
It contended that the default judgment ought to be set aside as it had not known of the proceedings until mid-May when the relevant forms reached its trading address; the claimant
had told it in a telephone conversation that so long as settlement discussions continued, he would take no further
action; the claimant had failed to serve a response pack.
The defendant also submitted that the half-crown design had in fact been designed for its use in 2005 and had sold
garments using that design in 2005 to 2006, significantly
earlier than the claimant’s claim to have created it in May 2007, an assertion forming the basis of a counterclaim that should be permitted to go to trial. The claimant argued that
in an application for relief from sanctions under CPR 3.9 and Denton, CPR 13.3 was to be read as limited to relief under
(ii) the defendant should be allowed to defend the claim.
CPR 13.3(1)(a).
(2) In considering whether to set aside or vary a judgment
Allowing the defendant’s application, the court held that as
have regard include whether the person seeking to set aside
take into account, it fell to the court to primarily consider
entered under Part 12, the matters to which the court must
CPR 13.3 expressly stated the factors that the court had to
the judgment made an application to do so promptly
the instant application under that rule, which provided two
The defendant had been the owner of a United Kingdom Class 25 registered trademark and design, consisting of a
distinctive combination of a half Union Jack and a crown design (half-crown design). The claimant alleged that the
defendant had infringed its half-crown design by importing
and selling a “hoodie” outer garment which replicated that design and he brought infringement and passing off proceedings. The claimant served a claim form and
particulars of claim at the defendant’s trading address and
grounds for setting aside a default judgment, namely, where
the defence had a real prospect of success, and alternatively where there was some other good reason to set aside the judgment in order to allow a defendant to defend the case.
On the face of the rule, even if the court was of the view that there was no real prospect of successfully defending
the claim, it could allow the application on other grounds. CPR13.3 was not to be read as if relief were limited to CPR 13.3(1)(a).
service was deemed to have taken place on 6 May 2014.
The applicable test was akin to the test for summary
particulars of claim. The defendant, who delayed three
were a number of aspects of the defendant’s evidence that it
claimant’s application for summary judgment issued on 5
case and in some instances were of so little probative value
favour on 4 July. Shortly after receipt of that judgment, the
that case. However, cumulatively considering the evidence,
A response pack was not served with the claim form and
judgment, save that the burden fell on a defendant. There
weeks before seeking legal advice, failed to respond to the
sought to rely on at trial that were not clearly probative of its
June and default judgment was entered in the claimant’s
that it could be argued that the evidence did not support
defendant filed an application to set aside. It sought to rely
the threshold in CPR13.3(1)(a) was satisfied.
07
‘…the claimant’s failure to serve the response pack could potentially constitute “some other good reason” under CPR 13.3(1)(b) to set aside the default judgment…’ Additionally, the claimant’s failure to serve the response
pack could potentially constitute “some other good reason” under CPR 13.3(1)(b) to set aside the default judgment subject to the question of delay. In the instant case, the
defendant’s three-week delay in seeking legal advice was not excessive, and accordingly the claimant’s failure to
serve a response pack could have probably been a good reason to set aside the default judgment.
There was some documentary evidence, in particular an email the claimant sent on 9 June to his solicitors which
implied that there were then ongoing discussions between the parties. However, it was difficult to tell whether the
defendant had been entitled to assume nothing had needed to be done until negotiations had concluded, in
circumstances where it had not responded to the service of the application notice for default judgment.
We mention briefly also the case of R v Secretary of State
for the Home Department and others (2014) EWCA Civ 1633 in which the Court of Appeal has ruled that applications
for extensions of time to file notices of appeal under CPR 3.1(2)9A) are to be determined using the principles
governing applications for relief from sanctions under CPR 3.9, i.e. those set out in Mitchell/Denton.
08
In the news: claims against Jimmy Savile’s estate The Court of Appeal has substantially upheld a judge’s
decision to approve a scheme set up by the executor of the estate of the late Jimmy Savile to facilitate the settlement of claims by the victims of historic abuse. The appeal court
agreed that the scheme, negotiated with the solicitors for the claimants at considerable expense, had the advantage that it not only provided machinery for the scrutiny of claims,
but also fixed the level of compensation at sums which were
likely to be below those potentially available in civil litigation.
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