Legal Watch: Personal Injury 19th March 2015 Issue: 056
Employers’ liability Among the most common accidents in offices are those caused
by tripping and slipping on the one hand and manual handling
In this issue:
(2015) EWCA Civ 189 involved both. The case also looks at
• Employers’ liability
the relevance of a risk assessment when determining liability.
• Psychiatric injury/secondary victim
The claimant/respondent had been a receptionist at one
• Jackson/Mitchell/Denton
on the other. The case of West Sussex County Council v Fuller
of the defendant/appellant’s offices. She had been asked
• Costs
to start delivering post to different areas of the office. While delivering post she had tripped up a staircase and put out her hand to break her fall, spraining a ligament in her wrist. The
claimant alleged that she had been carrying a large amount
of bulky post and that the local authority was liable because it had failed to carry out a risk assessment under Regulation 3
Management of Health and Safety at Work Regulations 1999 and Regulation 4 Manual Handling Operations Regulations
1992. The judge found that she had not been carrying a large amount of post and had simply misjudged her footing, but he
felt compelled to allow her claim because of the failure to carry out a risk assessment.
‘...the accident did not fall within the ambit of the risk that the local authority had arguably been required to asses’ Allowing the defendant’s appeal, the Court of Appeal held that
liability for breach of Regulation 3 of the 1999 Regulations or Regulation 4 of the 1992 Regulations could not be established without proof of a causal link between the breach and the
injury suffered. The burden of proving that causal link was on the claimant. However, in many workplace situations, a failure
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by the employer to assess the risks of injury involved in a
manual handling operation, and to take appropriate steps to reduce the risk of injury to the lowest level practicable, would effectively cast on to the employer the evidential
burden of showing that its failure was not at least a cause of the accident. That was because there would be an obvious
connection between the injury and the risks associated
with the activity being undertaken. That was not the case where the cause of the accident was unconnected with the
risk generated by the operation in question. In the instant case, the defendant had arguably been in breach of duty
in failing to carry out a risk assessment, but on the facts found by the judge the accident did not fall within the ambit of the risk that the local authority had arguably been required to assess. The claimant had simply misjudged her
footing when climbing a staircase while she happened to be carrying one or more items of post. Her accident was wholly
causally unconnected with the circumstance that she had been carrying post.
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Psychiatric injury/secondary victim We do not normally include clinical negligence cases in
had been entitled to conclude that the deceased had been
Peterborough NHS Foundation Trust (2015) EWHC 609 (QB)
to function satisfactorily. There were insufficient risk factors
secondary victim.
community mental health services at that time; a reasonably
this periodical but Baker and others v Cambridgeshire &
suffering from bipolar affective disorder, but was continuing
includes consideration of a claim for psychiatric injury by a
present that would have mandated the involvement of the
The deceased had suffered from bipolar affective disorder
since he was a teenager. He was married to the first claimant, with whom he had a son and two step-children, and he ran
his own business. One of his periods of exuberant mood coincided with the first claimant suffering from a prolonged episode of depression and self-harming. After an incident,
the first claimant locked the deceased out of their house and he moved into his parents’ house. Shortly afterwards his GP referred him for an urgent appointment with local
mental health services. The referral letter referred to the deceased as suffering from intermittent suicidal thoughts.
The deceased had a consultation with a speciality doctor in
psychiatry. She reported to the GP her diagnosis of bipolar affective disorder and stated that the deceased’s mood had
been normal. She arranged a follow-up appointment for one
month later. After the second consultation the deceased had visited the first claimant in what she described as a tearful
and distraught state. He had become cross when she had
told him that it was not the right time for him to return to the marital home because of her own illness. The doctor’s letter to the GP stated that the deceased had had some thoughts
of hopelessness but had denied suicidal thoughts, that she
had recommended marriage counselling and that she had discharged him back to the GP’s care. The next day the
deceased had spent time with his son. The day after that he was found dead at his parents’ house. The third claimant, his step-daughter saw the body about 45 minutes later.
competent body of psychiatrists would not have done so. The decision to discharge the deceased back to the care
of his GP at the second consultation had also been of an acceptable standard. Although her letter could have been
more carefully worded, her references to hopelessness were more likely to have been made in the context of the marriage breakdown than general hopelessness. The deceased had understood and agreed with the doctor’s proposed plan. There had been no breach of duty.
‘…there had been insufficient proximity in time and space to the deceased’s death for his step-daughter to claim as a secondary victim’ Any alleged failure to involve community health services
after the first consultation had not been causative of the deceased’s death. It was unlikely that a home visit by
community mental health services could have been arranged
before the second consultation. It was not established on the balance of probabilities that if the doctor had instigated further involvement from the community mental health
Dismissing all claims for damages the deputy High
services the deceased would not have committed suicide
consultation in a thorough and competent manner. It was
no indication of suicidal intention, nor when the deceased
deceased his GP’s concerns about suicidal thoughts. She
would be a step too far to conclude that, but for the doctor’s
Court judge held that the doctor had conducted the first
one month later. At the second consultation there had been
very unlikely that she would not have discussed with the
had spoken to the first claimant or spent time with his son. It
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decision to discharge him to the care of his GP he would
not have taken his own life, as opposed to any other reason at that time. There was evidence that the breakdown in his
relationship with the first claimant had been a significant
stressor. There was no evidence that the offer of another outpatient appointment would have prevented his death.
If it had been necessary to decide, there had been insufficient
proximity in time and space to the deceased’s death for his step-daughter (the third claimant) to claim as a secondary victim.
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Jackson/Mitchell/Denton Although it is not a personal injury case Peak Hotels & Resorts v Tarek Investments Ltd and others [Lawtel 16/03/2015] is of wider interest in that it confirms that an application for
an extension of time made before a default has occurred is not to be considered in the light of the stricter approach following Mitchell and Denton.
The claimant had previously been ordered to put up, as
fortification for a cross-undertaking for an injunction, £10m. At the defendant’s subsequent application for security for costs, the claimant unsuccessfully argued that it should be able to use £9m of the previous amount on the basis
that the events that might have given rise to loss from the
injunction had passed. The judge held that the question of security for costs should not await determination of any
recovery of the previous security, as that previous order was absolute until there was a further order releasing any sums.
He ordered the claimant to provide £3,138,000 as security for the defendants’ costs. He dismissed the possibility of the claimant failing to provide the security as remote, finding
that its former director, who retained a considerable financial
interest in the claimant, had approximately $160 million and so any default would be by choice and the security could
not stifle the claim. The judge stated that he would not make an unless order as the defendants could apply to strike out the claim in the event of default. Shortly before the date for compliance, the claimant applied for an extension of
time. Its evidence in support recited the fact of the order and indicated that it expected to receive sums shortly that
would be used to satisfy the order. It offered to make a partpayment of approximately 43% of the sum due very shortly. By the time of the instant hearing, the date for compliance had passed.
extension of time should be granted as it had a need and a right to respond to the strike out applications and to provide
evidence in support. It further submitted that the overriding objective should be applied to its application.
‘Where an application for an extension of time was made before the deadline, the court should be guided only by the overriding objective’ Allowing the application, the High Court judge held that the claimant, in seeking an extension of time, had sought to
latch onto the strike out application. It had accepted that if
its application was the only one before the court, it would have had very little basis for adjourning to supplement its evidence. Care had to be taken to distinguish the claimant’s
application for an extension on the one hand, and the question of appropriate relief on the other, which was the
subject of the strike out applications. The court had invited
the defendants to consider withdrawing the strike out applications in deference to an unless order in respect of
any extra time to be granted to the claimant for compliance, which they accepted. The application for an extension was therefore on frail grounds and the evidence in support
was not extensive. The question was whether the stricter approach under Mitchell/Denton was to be applied, or simply the overriding objective. Where an application for an
The defendants submitted that the claim should be struck
extension of time was made before the deadline, the court
supported by full and complete evidence, and did not
that basis, the claimant’s application relied considerably on
how it was to be satisfied. The claimant submitted that an
procedural weapon of striking out. The court was persuaded
out as the application for an extension of time was not
should be guided only by the overriding objective. Even on
describe why the order had not been complied with or
the court’s indulgence and reluctance to wield the ultimate
05
by the authorities that the interests of justice required that
the claimant should be given further time for compliance
with the order, subject to conditions. The claimant’s offer to make a timely substantial part-payment was a strong
indication of an earnest intent to fully comply with the order
if given more time. The claimant would be granted a short extension of 11 working days, on an unless order basis.
There would also be an unless order in respect of the partpayment, which would have to be made as soon as was feasible given certain administrative functions of the court.
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Costs We report the commercial case of CIP Properties (AIPT) Ltd
v Galliford Try Infrastructure Ltd and others (2015) EWHC
481 (TCC) as an illustration of the need to take seriously the issue of costs budgeting. The case also attacks the notion
that a claimant’s costs budget will inevitably be higher than that of the defendant.
The claimant owned a larger development on the site of a
former hospital. It claimed against the defendant for the costs of remedial work to rectify alleged defective works. Prior to
‘There was no reason… why the claimant’s overall costs figure should not be similar to that of the defendant’
a first case management conference, the claimant had filed
By reference to CPR 44.3(5), the claimant’s incurred and
estimate of its costs at almost £3.5m. Its proposed costs
and value of the claim. There was no reason, and no reason
The defendant’s incurred and estimated future costs figure
should not be similar to that of the defendant. If anything, it
by the defendants, estimated their costs at £5.45m. The
work in preparing for and running the trial.
a case management information sheet which included an
estimated costs were disproportionate to the complexity
budget produced for the instant hearing was almost £9.5m.
had been put forward, why the claimant’s overall costs figure
was £4.48m. Four additional parties, joined to proceedings
should be less, as the defendant would be doing most of the
total damages claim was approximately £18m.
The claimant’s justification for the disparity in the costs
Reducing the claimant’s proposed budget substantially,
budgets was rejected. There was nothing to justify its
document. Further, given the deliberate absence of any
keep them low, and it was wrong to say that it was likely that
estimated, and the schedule of assumptions, which could
In the instant sort of case, Part 36 offers were almost always
maximum room for manoeuvre later in the proceedings, the
was whether the court’s ultimate judgment was above or
the High Court judge held that it was a wholly unreliable
assertion that the defendant had manipulated its figures to
explanation for the huge increase in the costs incurred and
the defendant would be ordered to pay the claimant’s costs.
only be designed to give the claimant’s legal team the
made, and usually early in proceedings. The usual question
conclusion was that the costs budget had been deliberately
below the level of the offer.
manipulated. The claimant did not want the court to make costs management orders and the production of the costs
budget in its present format was a continuation of that stance by other means. Those findings of unreliability meant
that the claimant was in a particularly difficult position in
respect of the incurred costs to date and fixture of budget figures, but only had itself to blame.
It was wrong to say that because the claimant was the
claiming party it had the lion’s share of costs. Such cases tended to be run by the experts, who had identified the
defects and the appropriate remedial work. In cases in the
instant court, the defendant needed to be on top of all the relevant material just as much as the claimant, particularly where the defendant had incurred the costs risk of joining
additional parties. It was also wrong for the claimant to suggest that its own costs were greater because of the
addition of those parties, given that it had said throughout
that its costs budget had been prepared by reference to the defendant only. The claimant’s costs budget set out figures
07
which were wholly unreasonable and unjustified. The court
determined the upper limit of the reasonable amount under each head of costs, a total figure of £4.28m.
After summarising the available options, the court identified
and set out the various budget figures in a costs management order, including the claimant’s approved budget of £4.28m.
The court also approved the defendant’s costs budget, at £4.22m, with minor reductions made to the proposed
budget. The costs budgets of the additional parties were proportionate and reasonable, and were approved in full.
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