Legal Watch: Personal Injury 28 May 2015 Issue: 064
RTA/liability In Buswell v Symes and another (2015) EWHC 1379 (QB) the
claimant and his friend had been riding along a rural road
In this issue:
who had been executing a right-hand turn from a field onto the
• RTA/liability
hedge, rather than from a properly formed exit. The road had
• Civil procedure/expert evidence
when he collided with a tractor driven by the first defendant,
road. The first defendant had driven through a gap in the field a speed limit of 60 mph.≠
The collision occurred just beyond the brow of a hill, over
which drivers had no visibility until they were near the top. The first defendant accepted that moving the tractor onto the road
would briefly block the whole road, but said that it did not occur to him that it would pose a hazard to cars coming over the hill.
He argued that he could not have done anything to avoid the
accident, which was caused by the claimant’s speed. It was the claimant’s case that the first defendant should have used an alternative access point to and from the field.
Due to a clerical error on the part of the first defendant the tractor was not insured and the MIB was joined as second defendant.
Finding in favour of the claimant on primary liability the High Court judge held that the first defendant’s evidence was
unsatisfactory in material respects: he had given inconsistent
versions of how often and for how long he had worked in the
field; he had incorrectly stated that there was no alternative
access to the field; he had said that the field had been fenced off by barbed wire when the evidence showed otherwise; and
his excuses for not using alternative exits which posed less of
a risk were not supported by the evidence. He had appreciated
the risk that he was taking when he drove his tractor out onto the road from the exit he used. He knew motorcyclists used that road. Either he foresaw the danger and took the risk, or
he did not foresee it when he should have done. He had been negligent.
• Employers’ liability • Damages • Part 36
‘The claimant…had been running a very great risk of colliding with anything that might have been in the road over the hill’ However, the claimant had been driving too fast; expert
evidence put his likely speed as close to 70 mph. The dangers of driving at speed over a blind summit were
obvious. The claimant had known, or should have known, the hazard. He had been running a very great risk of colliding
with anything that might have been in the road over the hill.
The court accepted that he had not been aware of the exit
from which the first defendant’s tractor emerged, but it was not unusual to encounter slow-moving agricultural vehicles
driving out of fields. The collision had been caused by the first defendant’s negligence, for which the claimant was two-thirds contributorily negligent.
02
Employers’ liability Although Vaughan v Ministry of Defence (2015) EWHC
1404 (QB) concerns a claim by a member of the armed forces, there are a number of issues in it that are of general relevance.
The claimant, a marine, had attended an adventure training exercise on sailing. On the last morning of the trip the
marines had been told by their superior that they were free to do what they wanted. The claimant and five colleagues
went to the beach, where the claimant entered the sea and
‘…the general principle (was) that something reasonably incidental to the work would fall within the scope of employment’
executed a shallow dive. He struck his head on something
Whether the claimant was acting in the course of his
The claimant’s case was that his injury had been caused by
general principle that something reasonably incidental to
duty of care qua employer by virtue of S2 Crown Proceedings
fact that a marine was required to be physically fit could not
on duty at the time of the accident; (ii) the claimant had been
in the course of his “employment”. That would mean that
a breach of the duty owed to the claimant.
if the exercise was being undertaken when a marine was
and fractured his spine, resulting in incomplete tetraplegia.
“employment” was to be decided on the facts, applying the
the defendant’s breach of duty, the defendant owing him a
the work would fall within the scope of employment. The
Act 1947. The issues were whether (i) the marines had been
mean that whenever he undertook exercise he was acting
acting in the course of his employment; (iii) there had been
the defendant had to take a proper risk assessment even
In relation to the second issue, the claimant submitted that
he had been at the beach in order to exercise and that as
that was something expected of a marine, it was at least reasonably incidental to his work.
Dismissing the claim, the High Court judge held that the
defendant’s duty covered the performance of the work done by the claimant and anything reasonably incidental
to that work. If his activity was outside the course of his employment, the defendant owed no duty qua employer. Had the claimant been on duty that would have been
indicative of a continuing duty qua employer owed by the
defendant, although a finding that he was not on duty was not determinative against the claimant. However, the clear conclusion from the evidence was that the marines were
not on duty at the time of the accident. Their superior had
given no instruction at all as to what they should do in their
free time. He had not even been sure where the marines had gone, let alone what they were doing.
on holiday and the scope for the defendant’s duty would be almost limitless. In any event, the evidence was that the
claimant had not gone to the beach to exercise as part of
his requirement by the marines to keep fit: the marines had not told their superior what they were going to do; not all of the marines had exercised; and it was not clear which
of them had entered the sea. The claimant had gone to the beach in order to relax and enjoy his free time. While some of them swam, they did so because they were young men
who enjoyed exercising. It did not constitute part of their “employment”.
There had been no breach of duty. The proper parallel to
be drawn was that of an occupier owing a common duty of care. The claimant had said that he knew at the time of
the accident that there was a risk of injury if one dived into
shallow water. He had had a genuine and informed choice as to how he entered the sea, he was not acting in the course of his “employment”, and he was not subject to any
lack of capacity. He had assessed whether it was safe to 03
do what he did before he dived into shallow water and had misjudged the situation with catastrophic results.
In view of those conclusions, the issue of contributory negligence did not arise.
This decision may be contrasted with that in Radclyffe
v MOD (2009) in which the defendant was found to be vicariously liable for the negligence of an army captain who owed a duty of care to junior officers and men in an off duty
situation and whose breach of duty resulted in a second
lieutenant suffering injury when he jumped off a bridge into a lake.
04
Civil procedure/expert evidence The case of Team Texas SAS and others v Wang [Lawtel 21/05/2015] is a reminder that expert evidence should only
be permitted by a judge case managing a claim where it is ‘reasonably required to resolve the proceedings’ and assists the trial judge on matters outside his expertise.
The claimant/respondent had been involved in a road traffic accident, which resulted in the death of one of his
sons and the other son suffering severe brain injuries. The son that survived had been in a car seat, manufactured by
the first defendant/appellants, which became detached in the collision. It transpired that the claimant had incorrectly
installed the car seat. The surviving son brought a claim against the claimant, receiving a lump sum of £2.3m and substantial periodic payments.
The claimant sought a contribution from the defendants
on the basis that the car seat instructions, and warnings
supplied were inadequate, ambiguous, lacked clarity and were defective for the purposes of S3 Consumer Protection Act 1987. He applied for permission to adduce the expert
evidence of an ergonomist, to assist the court to assess the clarity of the car seat instructions and whether following
those instructions the seat could be safely installed. The Master granted permission.
The defendants submitted that the question of the clarity of the instructions was not a matter on which expert evidence was not reasonably required in accordance with CPR 35.1.
‘…it was obvious that no sensible contribution that any expert made would go to the key issue...’
Allowing the appeal, the High Court judge held that the court
was not persuaded that an ergonomist was appropriately
qualified to interpret car seat instructions with a view to stating whether they enabled a car seat to be satisfactorily
installed so as to serve its intended purpose. However, even if an ergonomist was more qualified than other experts to give a view, it was obvious that no sensible contribution that any expert made would go to the key issue which
was whether a person of reasonable intelligence who was tolerably familiar with the English language could follow
the car seat instructions. What was important was whether
the instructions were such as to enable people of general intelligence to install a car seat. That was a question for the trial judge and one could suppose that a judge had a
general level of intelligence and was tolerably familiar with
the English language. The master’s decision was so plainly wrong that it was outside the wide ambit of her discretion.
The second case under this heading is another in a series in which courts have been asked to consider applications
to serve expert evidence late in the proceedings. Whereas many such applications would probably have failed in the post-Mitchell pre-Denton period, it is becoming clear that post-Denton each will be considered on its merits.
In the personal injury case of Marchment v Frederick Wise
Ltd and another [Lawtel 26/05/2015] the claimant applied for relief from sanctions for the late service of an expert engineer’s report, and permission to rely on an amended
schedule of loss and expert medical evidence. The second
defendant applied for summary judgment and/or to strike out the claim.
The claimant had brought the claim for personal injury against the defendants arising out of his alleged exposure to
asbestos while working for them. The trial was listed for 16 June 2015 and directions were given: a joint medical expert
had been agreed on to give medical evidence concerning
the value of lung tissue reports, and the claimant was to
serve an engineer’s report and an updated schedule of 05
loss by 13 February 2015. Neither were served on time as the claimant’s solicitor had mis-diarised the due dates. An
amended schedule of loss was served almost two weeks late and included an additional claim for £4,000, and the engineer’s report was served four weeks late.
The claimant applied for relief from sanctions soon after, accepting that his breaches had been both serious and significant. The second defendant and claimant’s engineering experts both dealt with causation but differed
in their calculations of the claimant’s exposure to asbestos fibres using the Helsinki criteria. The second defendant
criticised the claimant’s expert report, stating that it was deficient and inadequate to establish liability.
Allowing the claimant’s applications the deputy High Court
judge held that there was clearly a dispute between the two engineering reports as to the claimant’s level of exposure to asbestos. That was a triable issue and the level of exposure
might well turn on oral evidence. For that reason the second defendant’s applications to strike out the claimant’s claim and/or obtain summary judgment failed.
Relief from sanctions would be granted as result of: • the non-culpable nature of the solicitor’s error • the ability to comply with the Master’s directions,
albeit late, had the second defendant not opposed the claimant’s applications
• the fatal effect on causation. Allowing relief from sanctions meant vacating the trial date. However, the trial would be relatively short and, given the
lengthy period of notice, the court could allocate the trial
date to another case and relist the trial for a time in the nottoo-distant future.
The medical report concerning the lung tissue was an
important matter given the weak nature of the evidence on causation in the claimant’s expert report. It was potentially
of great probative importance and so permission to rely on that report was granted
The claimant’s applications were granted but he was required to pay the second defendant’s costs in his successful applications and their dismissed applications. 06
Damages Although HS (a minor) v Lancashire Teaching Hospitals NHS
Trust (2015) EWHC 1376 (QB) is a clinical negligence case on its own facts, it contains a number of points of general interest in relation to quantum.
The claimant was eight years old and had been born at a trust hospital. The hospital’s negligent failure to recognise
that she had a streptococcal infection at birth led to her
suffering a catastrophic brain injury. As a result, she had no independent mobility, was doubly incontinent and was entirely dependent on others for all aspects of daily living.
She was profoundly developmentally and cognitively impaired, had no speech and limited sight, and manifested serious behavioural problems. She was expected to survive
until the age of 49 with no improvement in her condition. She lived at home with her parents and two younger siblings. In March 2014, a comprehensive care regime was introduced
whereby an agency provided two full-time carers during the day and one at night. In September 2014, the family moved to larger accommodation.
The defendant admitted liability. Many heads of loss were agreed but the court was required to determine the damages
recoverable for (i) future care; (ii) care management; (iii) loss of earnings; (iv) holidays; and (v) hydrotherapy.
Assessing quantum the High Court judge held that as to future care, it was agreed that two full-time, day-time carers
would be necessary once the claimant reached adulthood.
The court determined that the cost of two full-time carers during the day was also necessary, proportionate and recoverable throughout the claimant’s childhood and
teenage years. She was profoundly disabled, moving her required two carers, and the points at which two carers might
be necessary were wholly unpredictable. It was unrealistic to suppose that the parents would always be available: they both had full-time jobs, both had suffered from carpal tunnel syndrome and two other small children to look after.
Two night-time carers, one waking and one sleeping, would
be neither reasonable nor proportionate to expect one of the parents to act as the sleeping carer. The judge found
that the claimant was ‘entitled to recover what is reasonably
necessary for her proper care and that, if that means the provision of care is not always utilised to full capacity, this is
something the defendant must bear’. The cost of providing such carers was therefore recoverable, with an uplift for the disturbance of the sleeping carer equivalent to four weeks
per year until the claimant reached 19, and two weeks per
year thereafter. A 14:10 division between day and night care after the claimant’s 19th birthday was appropriate. While, the claimant would not be functioning as an adult, the longer
day was appropriate for an adult. Future care costs were to be paid on a periodical payment basis.
A care manager had been in place since October 2013, and
the care management costs from her appointment covered the period before the setting up of the care package. Taking
that into account, she estimated on-going costs of £17,000 per year. That was supported by the claimant’s care expert,
who based continuing care management costs on 10 hours per month plus 20 hours contingency per year. However, there was force in the defendant’s argument that if an
agency was supplying the carers, the care manager would be spending less time on that aspect of the claimant’s care.
On the totality of the evidence, the care management costs until the claimant’s 19th birthday would be £12,094 per year, with an annual cost of £15,360 thereafter.
‘No deduction would be made (from the loss of earnings claim) for the cost of travelling to and from work’
also be necessary throughout the child’s life, and it would
07
The claimant would never be capable of work, but it was
impossible to make any considered assessment of what she might have done but for her condition. She was assessed
as having been in the average to good average range of intellectual ability. Her case was therefore properly put on
the basis of the most recent ASHE figures. The parties’
calculations resulted in lump sums of between £223,063 and £327,511. A relatively broad-brush lump sum approach was
appropriate, and the court would therefore award £300,000. No deduction would be made for the cost of travelling to
and from work. The decision in Eagle v Chambers (2004) did
not establish any principle that such a deduction should be made. Indeed, per Dews v National Coal Board (1988) such a deduction was not to be encouraged.
The claimant’s disabilities meant that holidays would cost more than they otherwise would have done. Her parents took one lengthy trip to India each year to visit family, and
they claimed an additional annual cost of £4,000, plus
£6,897 for other holidays. While the claimant was entitled to the additional cost of holidays, it was doubtful whether that cost was as high as the pleaded figure. £5,000 per year was appropriate.
The provision of a hydrotherapy pool at the family home, at
a cost of some £250,000, was not reasonable as a specific head of damage. No established therapeutic benefit was claimed, the case being put on the basis that being in the
pool was one of the claimant’s few pleasures in life. However,
the guiding principle had to be her reasonable needs arising from her condition, not merely the provision of pleasure.
While the claimant would make some use of a home pool, a
private hydrotherapy pool was available locally, and the cost
of twice-weekly visits was recoverable for life, capitalised at £125,000.
General damages for pain, suffering and loss of amenity would be approved at £305,000. Although the child’s
awareness of her predicament was limited, the scale of her disability called for an award at the upper end of the range for injuries of maximum severity.
08
Part 36 The case of Purser v Hibbs and another [Lawtel 21/05/2015] looks at the operation of Part 36 where a claimant accepted
an offer after expiry of the relevant period and in the light
of surveillance evidence. It also contains some interesting comments by the judge about a defendant’s righ to recover the cost of surveillance, even though it was not included in his costs budget.
that he should be allowed his costs both before and after the date of expiry of the offer.
The deputy High Court judge held that despite the variation in wording between the old CPR 36.10(5) and the new
36.13(5), and in particular the new reference to whether it
was “unjust” to disapply the normal costs consequences, the new rule had not materially changed the proper
The claimant had sustained injury in a road traffic accident
approach to be taken by the courts when deciding how to
Before commencement of proceedings, the defendant’s
a Part 36 offer. The appropriate test was whether, bearing in
the claimant’s home in 2011 and 2012, neither of which
rule should be departed from because it would be unjust to
caused by the defendant. The defendant admitted liability.
deal with costs where there had been a late acceptance of
insurer conducted two periods of surveillance around
mind the factors listed under CPR 36.17(5) the usual costs
demonstrated anything inconsistent with the claimant’s
apply it in the particular circumstances.
account of the extent and impact of her injuries. In July 2013
the defendant made a Part 36 offer of £95,000, which fell to be accepted in August 2013. The claimant did not accept
the offer within the relevant period but instead commenced proceedings.
On the basis of the 2014 surveillance material and the defendant’s expert evidence, and in the absence of any
evidence from the claimant, the court was satisfied that in spring 2014 and thereafter the claimant had a considerable range of physical ability and was suffering from relatively
The defendant’s insurer conducted a third period of
little, if any, disability. At that time she would have been
claimant displayed physical difficulty when at home by using
malingering by pretending when at home that her physical
she would ride her horse and act with full physical ability.
to misleading both her own and the defendant’s lawyers and
evidence and the claimant duly accepted the extant Part
claim.
surveillance in spring 2014, which revealed that while the
able to work and care for herself, and she was deliberately
crutches and a wheelchair, she would go to a farm where
condition was much worse than it was. She had been party
In October 2014 the defendant disclosed the surveillance
experts in order to advance a false and grossly exaggerated
36 offer.
It was more likely than not that her pattern of deceit extended
The issue was whether the normal costs consequences of
back some time before the 2014 period of surveillance,
apply. It was common ground that the defendant should be
effect. However, the defendant had failed to demonstrate
question was whether, as per the normal rule, the claimant
36 offer period. Of particular relevance were the earlier
late acceptance of the Part 36 under CPR 36.13(5) should
namely as far as August 2013, when the Part 36 offer took
entitled to his costs following expiry of the Part 36 offer; the
that her deceit extended back materially into the pre-Part
should be entitled to her costs up to that date.
surveillance evidence, which had not indicated that the
The defendant argued that the court should find that the
claim had been dishonestly exaggerated to a considerable
extent for a considerable period, and that it should rely on that conclusion to disapply the normal costs rule and order
claimant displayed more physical ability in 2011 and 2012
than she then claimed to have, the failure of the experts at that time to detect any signs of malingering or exaggeration, and the fact that the claimant’s symptoms had always been
said to have some psychiatric origin. The defendant was 09
inviting the court to infer that because the claimant had
been deceitful in 2014, it was more likely than not that she had also been deceitful in 2011, 2012 and 2013. That was
undoubtedly possible, but the defendant’s case was based on mere inference and was not sufficiently strong.
Further, it was relevant that the defendant could have protected himself by withdrawing the Part 36 offer when disclosing the 2014 surveillance evidence. Having failed
to adopt that course, it was not easy for him to complain now that it would be unjust to apply the normal costs rule. In those circumstances, applying the appropriate test, the
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defendant had failed to show that it would be unjust to
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disapply the normal costs order.
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It was appropriate to stigmatise the claimant’s deceit by
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directing that the defendant’s costs incurred since the expiry date be assessed on the indemnity basis, plus
interest. It was also appropriate to direct under CPR 44.2 that the defendant should be allowed his reasonable costs
of the 2014 surveillance, assessed on the indemnity basis,
notwithstanding that those costs had not been listed in the costs budget. The costs budgeting rules made no express provision for what should be done with regard to the costs
of surveillance evidence. Whereas most litigation was
conducted on a cards-on-the-table basis, some degree of
cunning was required in the administration of surveillance evidence. The court would not wish to do anything to
discourage the judicious use of surveillance evidence, or to
Contact Us
For more information please contact: Geoff Owen, Consultant T: 01908 298216 E: gro@greenwoods-solicitors.com
alert fraudsters to the use of surveillance. In that respect, the court differed from the note in the current White Book which suggested that some allowance for surveillance should be made in a defendant’s costs budget.
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