Legal Watch: Personal Injury 27th February 2015 Issue: 053
Public liability Readers will recognise the first case this week as the one in which the Supreme Court had earlier set out the criteria which
In this issue:
care. It found that the second defendant local education
• Public liability
would give rise to the existence of a non-delegable duty of
authority had owed a non-delegable duty of care to ensure
that reasonable care was taken to secure the safety of a pupil who was attending a swimming lesson conducted through an independent contractor.
The issue of liability has now been tried and is reported as
Woodland (Protected Party) v Maxwell and Essex County
• RTA liability • Damages • Civil procedure/interim payment • Costs/hourly rates • Watch this space
Council (2015) EWHC 273 (QB).
The claimant had been injured while attending a school
swimming lesson at a local authority pool. She was then 10 years old. Shortly after the claimant entered the water she was
seen by the swimming teacher to be floating vertically. She did
not respond to questioning or a physical touch. The teacher and another swimming teacher lifted her out of the water.
She was assessed to be still breathing and was placed in the recovery position. Her breathing was seen to be erratic or
fading. Mouth-to-mouth and cardio-pulmonary resuscitation
were administered. The claimant was taken by ambulance to
hospital. She had suffered cardiac arrest and a serious brain injury caused through lack of oxygen. She claimed against the
lifeguard, who was on duty at the swimming pool at the material
time, the swimming teacher and against the local authority on
the basis that it owed a non-delegable duty to take care of her in school swimming lessons and that accordingly it would be
liable for the negligence of the lifeguard and/or the swimming teacher. The claimant’s case was that the swimming teacher
and/or the lifeguard had failed to exercise reasonable care in the performance of their duties on the day of the accident, in
that each failed to keep pupils under observation when in the
water and failed within a reasonable period of time to observe that the claimant was in difficulties, raise the alarm and effect
a rescue. Her treatment after she had been removed from the water was not an issue at trial.
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 | 28.04.15 | The Wellcome Collection, London
There is a limited number of seats still available for this event, so to avoid disappointment book your place now.
Finding in favour of the claimant the High Court judge held
The lifeguard’s failure to observe the claimant was a failure to
drowning episode, which would have started a minimum
She was not paying sufficient attention to users in the water
that the claimant’s injuries were the consequence of a near-
of 30 seconds from the first submersion of the airways in
water, and the probability was that if she had been spotted and rescued earlier, she would not have suffered the injury that she did.
On the evidence, the claimant was in the water for at least 50 seconds and was in difficulty, taking in water for at least 30 seconds.
The fact that the claimant was in difficulty was not noticed by the swimming teacher or the lifeguard. No good explanation
was given as to why they failed to spot the claimant for as long as 20-30 seconds. The lifeguard had belatedly
suggested that she was prevented from adequately performing her duties because the class had started early
when she was not present. That was contrary to her earlier evidence and pleaded case and the late change of position was rejected.
The claimant’s fellow pupils had encountered her in the water in an advanced state of difficulties and had attempted to rescue her. It followed that she had stopped swimming for longer than the minimum period of 30 seconds.
‘Both the lifeguard and the swimming teacher were negligent and the local authority was liable for their negligence.’ The swimming teacher’s failure to notice a pupil in difficulties in the water for more than 30 seconds fell below the standard of care reasonably to be expected of a teacher. It was not possible to determine why her attention was deflected from
the pupils who were in the water and the one pupil who was in difficulty, but it was deflected and the opportunity for an earlier response was missed. 02
perform her role to the reasonable standard to be expected. at the material time.
Both the lifeguard and the swimming teacher were negligent
and the local authority was liable for their negligence. The
claimant succeeded on liability as their failures of the duty of care caused or materially contributed to the claimant’s injuries.
RTA liability
by the judge at first instance.
‘…a 13-year-old would not necessarily have the same level of judgment and self-control as an adult.’
The appellant/pursuer, who was then 13, had stepped
In the absence of an identifiable error, such as an error of
respondent/defender’s car. The accident had occurred at
the failure to take account of a relevant matter, it was only a
the judge found that the respondent had failed to drive with
which exceeded the ambit of reasonable disagreement
and identified the bus as being a school bus, or at least a
gone wrong. The Inner House (first appeal court) had gone
to have foreseen that there was a risk that a person might,
take reasonable care for her own safety: either she did not
found that he had failed to modify his driving: he did not
out or she failed to make a reasonable judgment as to the
as he approached the bus; a reasonable speed in the
the Inner House recognised, regard had to be had to the
However, the judge also found that the main cause of the
was only 13 and a 13-year-old would not necessarily have
to cross the road without taking proper care to check that it
the court also pointed out, she had to take account of the
On appeal, the Inner House of the Court of Session reduced
conditions, with its headlights on.
The Scottish case of Jackson v Murray (2015) UKSC 5
is an interesting example of a court taking into account a claimant’s age, in the context of her accident, when
determining the appropriate discount for contributory negligence. After two appeals the Supreme Court has just
provided its decision and settled the discount that should apply. The reduction for contributory negligence has been set at 50%, significantlylower than the 90% reduction made
out from behind her school minibus into the path of the
law, or the taking into account of an irrelevant matter, or
around 4.30pm, when the light was fading. At first instance,
difference of view as to the apportionment of responsibility
reasonable care. He ought to have kept a proper lookout
that would warrant a conclusion that the court below had
bus from which children were likely to alight; he ought then
wrong. It had rightly considered that the appellant did not
however foolishly, attempt to cross the road. The judge also
look to her left within a reasonable time before stepping
reduce his speed from 50mph (the speed limit was 60mph)
risk posed by the respondent’s car. On the other hand, as
circumstances would have been between 30 and 40mph.
appellant’s circumstances. As the court pointed out, she
accident was the appellant’s “recklessness” in attempting
the same level of judgment and self-control as an adult. As
was clear. He assessed her contributory negligence at 90%.
respondent’s car approaching at speed, in very poor light
her contributory negligence to 70%.
As the court recognised, the assessment of speed in those
Allowing the pursuer’s further appeal by a majority, the
circumstances was far from easy, even for an adult. It
to arrive at an apportionment which was demonstrably
pedestrian attempting to cross a relatively major road with
Law Reform (Contributory Negligence) Act 1945 was
was not straightforward, even for an adult. The Inner
to be applied by an appellate court was whether the court
“culpable to a substantial degree”. He had to observe
Supreme Court held that it was not possible for a court
was also necessary to bear in mind that the situation of a
correct. The apportionment of responsibility under S1(1)
a 60mph speed limit, after dusk and without street lighting,
inevitably a somewhat rough and ready exercise. The test
House considered that the respondent’s behaviour was
below had gone wrong.
the road ahead and keep a proper lookout, adjusting his 03
speed in case a potential hazard presented itself. As the
A second case under this heading is Dursan v J Sainsbury
an excessive speed and not to have modified his speed
actions of an HGV driver involved in a fatal collision with a
Inner House noted, he was found to have been driving at to take account of the potential danger presented by the minibus. The danger was obvious, because the minibus had its hazard lights on. Notwithstanding that danger, he continued driving at 50mph. As the judge at first instance
had noted, the Highway Code advised drivers that “at 40mph your vehicle will probably kill any pedestrians it hits”.
That level of danger pointed to a very considerable degree of blameworthiness on the respondent’s part.
It was impossible to discern in the Inner House’s reasoning
any satisfactory explanation of its conclusion that the major share of the responsibility should be attributed to the appellant. The respondent’s conduct played at least an equal part in causing the damage and was at least equally
blameworthy. The proper assessment of contributory negligence was 50%.
Comment This case illustrates that when considering contributory negligence in a case involving a child, age becomes
particularly relevant when the circumstances are outside the norm. As the Supreme Court pointed out, the combination of factors in this case would have caused difficulty to an
adult, let alone the average 13-year-old. The Inner House’s assessment of contributory negligence at 70% was rejected
by reference to a number of authorities including that of Ehrari v Curry (2007), where contributory negligence was
also assessed at 70%, but where the 13-year-old pedestrian stepped directly into the side mirror of a truck which was
travelling at a reasonable speed, and the driver failed to take avoiding action as promptly as he ought to have done. For further information about this case please contact Julie Fisher
Plexus Law (Scotland) T 0844 245 4804
E: julie.fisher@plexuslaw.co.uk
04
Plc (2015) EWHC 233 (QB) which considered in detail the pedestrian.
The deceased had been knocked over and killed by a goods
vehicle driven by an employee of the defendant company.
The deceased had been crossing a two-lane road on foot, between lines of queuing traffic. He had started from the nearside pavement, crossing the inside lane of traffic behind
a bus and continuing across the outside lane in front of the lorry. As he did so, the lorry moved forward and collided
with him. At the time of the accident it was dark, though the road was lit by vehicular, street and shop lighting. The
deceased was wearing dark clothing; it was raining; the
traffic was stopping and starting; and pedestrians were crossing the road in various places even though there was a pedestrian crossing a short distance away. The lorry was
fitted with mirrors which complied with Directive 2003/97.
They included a Class VI mirror on the nearside corner
of the cab, giving a view of the blind spot immediately in front of the vehicle. It was common ground that once the deceased had begun to cross the road, the driver would
only have been able to see him through his nearside mirrors, if at all. It was also common ground that there was no
authoritative guidance as to the sequence in which visual
checks should be made by those driving goods vehicles. The driver asserted that he had checked his nearside window, his nearside mirrors, and then his offside mirrors
before moving forward, but had not seen the deceased. The joint experts’ evidence was that those checks would have taken him between three and six seconds.
The claimant, the deceased’s widow, alleged that the driver
should have made a final check in his Class VI mirror before moving forward.
‘Since there was no prescribed or recommended sequence of visual checks, it was for the driver to do what he thought appropriate…’
relative positions of the bus and the lorry had allowed him a better view, he might well have finished his nearside checks
before the deceased came into view. Given the timings, it was likely that he checked his Class VI mirror only a second
or two before pulling off, and it would be unreasonable to
expect him to have anticipated a pedestrian entering that
space during that time. The possibility that a pedestrian would come down the offside of the bus and cross the front of the lorry was not one that ought to have been within the driver’s contemplation. Moreover, even if he had re-checked
his Class VI mirror, it could not be established that the
Dismissing the claim, the High Court judge held that the
deceased would have been visible. While the circumstances
evidence. There was no doubt that he had carefully carried
there could be no justifiable criticism of his not re-checking
was some attraction in the submission that he should have
had thus failed to establish any lack of reasonable care on
the circumstances had to be considered. It was apparent
whether by using the pedestrian crossing, wearing lighter
slightly ahead of the back of the bus, so there was some
the road, the deceased had been the author of the accident.
driver was conscientious and careful and had given truthful
demanded a significant degree of vigilance from the driver,
out the sequence of visual checks he described. While there
his Class VI mirror before moving forward. The claimant
taken a final look in his Class VI mirror before pulling off,
his part. In failing to take precautions for his own safety,
from CCTV footage that the lorry had been positioned
coloured clothing, or taking a less hazardous route across
overlap between the two vehicles. The deceased would
therefore have had to negotiate a dog-leg around the back
and offside of the bus before crossing in front of the lorry. When the driver began his sequence of visual checks, he
would not have been able to see the deceased through
his nearside window waiting to cross. Once the deceased began to cross, he would only have been visible through the nearside mirrors, and only for about half the time that
he would have been visible had he not been obscured by the back of the bus. Since there was no prescribed or
recommended sequence of visual checks, it was for the driver to do what he thought appropriate, subject to the
considerations described in the Highway Code and the handbook produced by the Driving Standards Agency. The driver could not be criticised for checking his nearside
window and mirrors, including his Class VI mirror, before checking his offside views. The question was whether, after
doing so, he should have re-checked his Class VI mirror. His evidence was that the checks revealed nothing to alert him
to the possible presence of pedestrians in front of his lorry. That did not imply any lack of care on his part. Even if the
05
Damages A hydrotherapy pool sometimes appears in a personal injury
necessary to take account of the mitigating impact of the
side. However, as the case of Ellison (Protected Party) v
claimant’s lack of insight into her condition. The appropriate
schedule of loss and raises a smile from the defending
University Hospitals of Morecombe Bay NHS Foundation Trust (2015) EWHC 366 (QB) illustrates, the claim can be
entirely justified. The case also involved the assessment of a complex accommodation claim.
The claimant, who was born in 2007, suffered hypoxic ischaemic injury at birth leading to severe quadrigplegic spastic cerebral palsy. She was totally immobile with virtually
no spontaneous ability to use her hands and arms. She
was effectively blind, doubly incontinent and dependent on
tube feeding. Her cognitive and intellectual functions were immeasurably low. She also suffered from frequent painful
spasms in her limbs, occurring day and night, which left
her screaming and crying for prolonged periods. The only effective way of easing the pain caused by the spasms was to immerse her in a hydrotherapy pool. The journey to and
from the nearest pool was around two hours. The claimant’s
life expectancy was almost 30 years. Her mother cared for her full time, assisted by grandparents. The claimant’s
father was an engineer who had worked abroad in a senior position with a final salary pension scheme, and the family
had intended to move abroad until it became clear that the
claimant’s condition made that impossible. The father gave
up his job and provided consultancy services. However, due to the specialist nature of his work he was forced to work in London during the week and travel home to Cumbria at
the weekends, which was putting an enormous strain on the marriage and on family life. The family therefore intended to move to London. The heads of damage in issue included general damages and the future costs of accommodation and hydrotherapy.
In assessing damages the High Court judge held that the claimant’s case included several features characteristic of the upper end of the Judicial College Guidelines for
tetraplegia and very serious brain injury. Against that, it was 06
pain relief likely to be achieved by hydrotherapy and the sum for general damages was £295,000.
The stated intention of the family to move to London was genuine and was likely to be carried out if the claimant was
given the means to bring that about. Although the move
would result in a loss of the support provided by the family
network, they would have paid professional carers. The commuting was unsustainable; the move to London was required in order to maintain the cohesion of the marriage and the family unit.
When determining whether a given item of expenditure should be incurred to meet a claimant’s reasonable needs, it was relevant to consider whether the same or a substantially
similar result could be achieved by other, less expensive,
means. However, a general requirement of proportionality
could not be applied to the quantification of damages for future costs, as that would be at odds with the basic rules relating to compensation for tort. The cost of making
good the harm suffered by the claimant, insofar as money
could do so, was not a defence if there were no cheaper
alternative that would produce a substantially similar effect. The overwhelming evidence was that hydrotherapy was an effective means of relieving the claimant’s pain and there
was no evidence that alternative measures provided a
substantially similar effect. The availability of pools outside the home, even in London, did not correspond with the
pattern or frequency of her symptoms of pain and screaming. Moreover, the nature, frequency and degree of pain involved meant that the difference between the effect that provision
of in-home hydrotherapy would have, and the alternatives, made the cost proportionate to the need. Accordingly, in the exceptional circumstances of the case, a hydrotherapy pool
in the home was reasonably required in order to provide the claimant with relief from the considerable and frequent pain that she suffered as a result of her injuries.
‘The value of (uncompensated) losses comfortably exceeded the value to the parents of free accommodation in a home purchased with the claimant’s damages award.’ Were it not for the claimant’s condition, the family would
have enjoyed an expatriate lifestyle until the children reached secondary education age, at which time they
would probably have either returned to the UK or moved to the US or Australia. They had incurred very considerable
uncompensated loss, not least the loss of the final salary
pension. The value of those losses comfortably exceeded the value to the parents of free accommodation in a home
purchased with the claimant’s damages award. The sum reasonably required for a suitable house in London, of a size
sufficient for the installation of a hydrotherapy pool, was £1.6m, plus £135,000 for the purposes of the calculation
required by Roberts v Johnstone to represent the betterment
that would be achieved by the adaptations required to meet the claimant’s needs.
The judge did not allow a claim for the installation of a lift to enable the claimant to access the first floor of the property that would be bought. Nor did he allow the costs of the
claimant travelling on holiday with her family after the age of 19. He considered it unlikely that she would do so as in her condition she would gain no discernible benefit.
07
Civil procedure/interim payment It is some time since we have been able to report a case
amount. The court had been referred to the relevant
payment application made in respect of an accommodation
had been a loss of function of the limbs and the guidelines
applying the test in Eeles v Cobham (2009) to an interim
claim. We now have one in MMM v Royal Berkshire NHS Foundation Trust [Lawtel 25/02/2015].
The claimant applied for an interim payment of £930,000 in her personal injury claim against the defendant trust.
The defendant had admitted liability for the claimant’s injuries
suffered at birth. She had sustained brain damage and
suffered from mild cerebral palsy as a result, which affected her balance, motor skills, mobility, personal care and daily living. Proceedings were issued in 2013 and an interim payment of £250,000 was made. There was uncertainty as
to the claimant’s prognosis and so the proceedings were
stayed until 2016. The claimant, who was eight years old, lived with her family in split-level accommodation. Medical evidence from 2013 suggested that although she could climb the stairs she risked injury doing so because of her impaired mobility and that she was more likely to fall. More
up-to-date medical evidence stated that her ability to climb
the stairs was limited by fatigue and that she was unable to carry things while climbing the stairs because of her impaired
motor skills. If she needed to go upstairs her parents had to carry her and when she did her physiotherapy it would
be done in the front room so everyone had to vacate that area. A total sum of £1.6m was being claimed and an interim payment of £93,000 for suitable accommodation which was all on one level and 10 hours of commercial care per week.
Allowing the application the deputy High Court judge held
that the claimant’s claim in respect of care was conservative. Around-the-clock care had not been sought. Ten hours a week was the minimum that would be required. It was likely that more hours might be required if the claimant fell ill or if her family were unable to assist as they had been.
The claimant sought £80,000 for pain, suffering and loss of amenity, which was, in the circumstances, a conservative 08
guidelines, including those for neck injuries where there
for moderate brain damage. The bracket for neck injuries was £55,000 to £100,000 and the bracket for moderate
brain damage was £80,000 to £126,000. It was clear that the claimant was not claiming an excessive amount. Indeed in another reported case the victim, who suffered similar injuries to the claimant, was awarded £160,000 for PSLA.
‘It was likely that the claimant would succeed in the final action in getting accommodation…’ The claimant’s existing accommodation was unsuitable. There was insufficient storage space for her soon-to-be arriving second wheelchair; insufficient space for her to do her physiotherapy; and she had difficulty accessing
and using the bathroom and toilet facilities and climbing
the stairs. The risk of the claimant falling while climbing the stairs, given the medical evidence, justified a move
to accommodation all on one level. As she grew it would become increasingly difficult for her parents to carry her upstairs, and there was no reason for them to have to do
that. It was likely that the claimant would succeed in the final action in getting accommodation, but she might not
succeed in getting all of the adaptations to the property sought. Accordingly, the sum for adaptations was to be
discounted. Taking into account the interim payment already made, the £930,000 now claimed constituted a reasonable proportion of the overall damages and would be awarded.
Costs/hourly rates The case of Kelly v Hays Plc and another [Lawtel 23/02/2015]
looks at the age old problem of the cost of a claimant instructing a London firm of solicitors when she could have
instructed a firm elsewhere which would have charged lower fees.
The respondent/claimant, whom the appellant/defendants
had employed in outer London, had commenced a
personal injury claim against them, on the basis that she
had been injured through their failure to provide her with a safe place to work. The claim was for over £433,000. The
defendants said that they had surveillance evidence that
showed that she had not suffered any personal injury or had exaggerated the claim, and that the claim was statute barred. In November 2013, the defendants agreed to pay
the claimant £50,000 in full and final settlement of the claim, plus the costs of the action, to be assessed if not agreed.
The parties did not reach agreement. A hearing was set to
determine a preliminary costs issue, namely in determining
costs, what the claimant’s solicitors’ hourly rates should be. She had instructed a City of London firm, with rates ranging
from between £160 and £450 per hour. The defendants argued that that was unreasonable and that the hourly rates of a national band one firm, which were between £118 and
£217, were appropriate. The Master stated that the test was whether it was objectively reasonable for the claimant to
instruct a City firm. He said that the issue that he had to
determine was which firm it would have been objectively reasonable to have instructed. He noted that the respondent was not required to have approached the cheapest solicitor
and found that it would have been objectively reasonable
for her to have instructed a central London firm. He uplifted the rates by 20% to take account of the fact that it was a
multi-track case and that there was complexity over certain issues, so that the hourly fee rates ranged between £140 and £380.
The defendant appealed and submitted that it was wrong to say that it was appropriate to instruct a central London firm; the Master had asked the wrong question and failed to provide reasons.
Allowing the appeal the High Court judge held that the appeal was by way of review rather than rehearing.
Accordingly, it could only be allowed where the decision
was plainly wrong, there had been a defect in reasoning, the Master had failed to take into account a relevant matter or
had taken into account an irrelevant matter, or there was a serious procedural irregularity. There could be no criticism
of the Master’s observation that the appellant had not been required to approach the cheapest firm. He did not have to make a binary choice between a national band one firm or a City firm. The Master had a wide discretion. However,
he had not only failed to provide reasons as to why central London hourly rates were preferable, he had also failed to
provide reasons for rejecting the defendants’ submissions
that a national band one firm was appropriate. The court was not satisfied that he had asked the correct question, namely what type of firm should have been retained.
‘No part of the claim had raised issues which needed experts over and above the expertise of a normal experienced solicitor.’ Even if the correct question had been posed, the conclusion
was not one which it was reasonable for him to have reached on the material before him. It was thus appropriate for the instant court to reach its own determination on
the matter, taking into account CPR 44.4(3). The relevant 09
factors were: the importance of the matter, any legal complexities, the location of the claimant’s home and her
place of work, and what she knew about the fees. Although
some aspects of the claim had been complex, it was a
relatively straightforward personal injury claim. No part of the claim had raised issues which needed experts over and above the expertise of a normal experienced solicitor. The
claimant’s home was just outside London and she worked in outer London. The appropriate category of solicitors was
national band one. However, there had been some aspects of complexity, which would justify some enhancement to
the hourly rates. Those aspects were the limitation point,
the extent of damages and the consideration of surveillance evidence. Although some degree of uplift should be taken, that was less likely to apply further down the pecking order of fee grades. It was reasonable to select fee earners of £295 for grade A, £230 for grade B, £175 for grade C and £120 for grade D.
10
Watch this space
Publications
NHS charges collected by CRU will increase for certificates issued on or after 1/04/2015. The current and revised charges are.
If you would like to receive any of the below, please email indicating which you would like to receive. Weekly: • Legal Watch: Personal Injury
Ambulance service £
Outpatient
Inpatient
Maximum
£
£
£
1st April 2014
192*
637**
783**
46,831
• Legal Watch: Property Risks & Coverage
1st April 2015
195*
647**
796**
47,569
• Legal Watch: Counter Fraud
Monthly: Quarterly: • Legal Watch: Health & Safety • Legal Watch: Professional Indemnity
* For each journey
• Legal Watch: Disease
** For each full or part day
Contact Us
For more information please contact: Geoff Owen, Learning & Development 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.