Legal Watch - Personal Injury - Issue 11

Legal Watch: Personal Injury March 2014 Issue 011

Employers’ Liability The absence of a risk assessment has often proved problematic when defending an EL claim but it is not always so as can be seen from Johnson v Warburtons Ltd (2014) EWCA Civ 258.

The appellant/claimant had driven an articulated lorry for

In This Issue: • Employers’ Liability • Capacity

four years. On the date of the incident, he had been required

• Civil Procedure/Evidence

to drive a rigid lorry of the kind used for delivery to retailers.

• Costs

He had rarely driven such a lorry. Whilst driving, he heard

• Post Jackson/Mitchell Cases

something in the load topple over. He pulled over and used the side door to access the cargo area. There were two steps

- Disclosure

inside the lorry coming down from the floor. The top step had a hinged flap: when it was flush to the floor it covered the step. In order to enter via the stairs, the flap had to be lifted towards the rear of the lorry and fixed vertically by means of a catch. The top of the flap could then be used as a handhold, but it was not constructed for that purpose. It was not like a purpose-built hand “grab-point” such as those fitted for entering the driver’s cab. The steps were uneven vertically and quite steep. They were deep horizontally so most of the foot could be put on them. The claimant raised and fixed the flap and entered the lorry. When he left the lorry, he came down the stairs facing forwards. He did not hold the handhold. His foot slipped off the bottom step and he fell from the lorry and into a gully, breaking his ankle. The trial was confined to issues of negligence/breach of duty, and causation. The judge held that there was no liability.

Dismissing the claimant’s appeal, the Court of Appeal held that the defendant/respondent had operated a fleet of 760

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rigid lorries for over 20 years. Regular delivery drivers used

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the side door approximately 15 times a day. No accident

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by way of falling had ever happened, nor was there any evidence that any driver had ever expressed any concern about the safety of the steps. Changes had been instigated

in 2007 after a transport manager had spent the day with a

Johnson v Warburtons Ltd (2014) EWCA Civ 258.

delivery driver and found that going up and down the stairs repeatedly had hurt his knees. Future lorries were installed with three steps rather than two. The existing fleet was not modified. However, that was not evidence of inherent danger.

The transport manager was not a regular user of the steps and it was not proved that he thought the steps were inherently dangerous, merely that he thought three steps would be more comfortable to use. There was evidence that the Health and Safety Executive had positively approved the steps. They had been introduced because delivery drivers had been jumping on and off partially deployed tail lifts. The side door and steps had made things safer. That change was described in the 2007 HSE information sheet under the heading “making it safe and easy”.

The evidence was not such that the judge should have found that the steps were inherently dangerous.

“..no training was needed because the need to take care was obvious, and…. no risk assessment was necessary” A salesman’s working guide had been published in October 2008. It stated that “when exiting ... through the side door, a suitable handhold is available by means of the top edge of the stair/flap. If the flap is to be used as a handhold, it is important that it is secured in an upright position”. It was unclear how the guide helped the claimant’s case. The advice was not that the handhold had to be used for safety purposes, it was that if it was going to be used, then it should be properly fixed. The authors of the report had clearly regarded the handhold as optional and did not regard walking down the stairs without holding on as dangerous. The judge had been entitled to reach the conclusion that the guide merely advised that someone might wish to grasp the handhold in order to descend. It had been open to him to accept defendant’s contention that no training was needed because the need to take care was obvious, and that no risk assessment was necessary.

03

Capacity In earlier editions of Greenwoods’ Alert we followed the

civil claim and, irrespective of how things had seemed at the

progress of the next case from first instance through to the

time, the consent order required approval and was therefore

Court of Appeal. Dunhill (Protected Party) v Burgin has now

void. Permission was given for an appeal on the second

been to the Supreme Court and is reported at (2014) UKSC

issue to be heard at the same time as the appeal on the first.

18.

Dismissing the appeals the Supreme Court held that

The claimant/respondent had suffered a severe head injury

capacity was to be judged in relation to the decision or

when she was knocked over by the appellant/defendant’s

activity in question and not globally. The wording of CPR

vehicle in 1999. At the start of the trial on liability in January

21.2(1) and 21.4(3) suggested a focus on proceedings

2003, the claim was compromised for £12,500. A consent

in general, rather than on “the proceedings” as framed.

order was placed before the court. On any view, the

Furthermore, the requirement for a litigation friend applied

settlement represented a gross undervaluation of the claim.

from the very start of the proceedings, and CPR 21.10(2)

In 2006, the claimant took fresh legal advice. In 2009 her

applied to claims settled before proceedings had begun. An

litigation friend applied to set aside the consent order on

action might take twists and turns, but CPR 21 assumed

the ground that the claimant had not had capacity at the

that there would always be somebody with mental capacity

time. Two issues arose. The first was whether the test to

conducting it. The proper test of capacity was whether the

determine her mental capacity to conduct the proceedings

party could conduct the claim which they actually had,

was to be applied to those which had been brought, or to

rather than the claim as formulated by their lawyers. The

the proceedings as they might have been brought if she

quality of the legal advice received had no bearing on the

had received different legal advice. The second issue was

test. It was clear that the claimant had not had capacity to

whether, if it were decided that the claimant lacked capacity,

conduct her claim.

the consent order ought to have been approved by the court

“...the policy underlying the CPR was that children and protected parties required and deserved protection...”

under CPR 21.10. On the first issue, it was held that capacity was to be judged by reference to the decisions which a claimant had actually been required to take in the action as drafted, not those which she might have been required to take had the claim been differently framed. It was held that there had been no rebuttal of the presumption that the claimant had had capacity. The Court of Appeal reversed that decision, holding that in order for the claimant to have had the capacity to approve the compromise, she needed to know what she was giving up, and that she had been unaware of the extent of her injury and potential claim. The case was remitted for determination of the second issue, namely whether CPR 21.10 was applicable. Around the same time, the defendant received permission to appeal on the first issue. The outcome of the second issue was that the CPR was incorporated into any agreement to settle a

The claimant ought to have had a litigation friend when the original proceedings began. While every procedural step in an action was capable of retrospective cure, the settlement finally disposing of the claim was not. The purpose of CPR 21.10 was to impose an external check on the propriety of the settlement. Construing the rule as applying only when the protected party had a litigation friend, as contended for by the defendant, would involve writing words into the 04

rule which were not there. Furthermore, if “claim” in CPR 21.10(2) pre-dated the commencement of proceedings, there was no reason why “claim” in CPR 21.10(1) should not also do so. There would be no litigation friend if proceedings had not started. The defendant’s argument was that the rule in Imperial Loan Co Ltd (1892) could be deemed applicable to the settlement of civil claims. His case was that once the parties had reached agreement, it was not for the court to interfere in their bargain. In Dietz (1969), an argument that the predecessor to CPR 21.10(1) was ultra vires had been rejected. That decision had introduced a substantial, but quite specific, exception to the common law rule in Imperial Loan, but the court was bound by Dietz unless there was good reason to depart from it.

Although there was a need for finality in litigation, the policy underlying the CPR was that children and protected parties required and deserved protection, not only from themselves but also from their legal advisers. As the consent order ought to have been approved by the court, it was to be set aside and the case listed for trial.

Dunhill (Protected Party) v Burgin (2014) UKSC 18.

05

Civil Procedure/Evidence In Greenwoods’ Alert 355 we reported the first instance

was inadmissible. The defendant’s submission that the Civil

decision in Rogers and another v Hoyle (2013) EWHC 1409

Evidence Act 1968 and CPR 35 comprised a comprehensive

(QB) in which the judge ruled as admissible as evidence a

code regarding expert evidence which excluded evidence

report by the Air Accident Investigation Branch (AAIB) of

such as the report was not well founded. Section 3 of the Act

the Department for Transport. The case has now been to

did not purport to be all-embracing or to alter the position

the Court of Appeal and is reported as Hoyle v Rogers and

at common law. Part 35 was concerned with persons who

others (2014) EWCA Civ 257.

had been instructed to give expert evidence for the purpose

The appellant/defendant argued that the report could not be admitted as expert evidence. The appeal was supported by the secretary of state and air transport association as interveners. They submitted that there should be a

of proceedings; the expert evidence in the report did not fall within Part 35. Accordingly, the report was prima facie admissible and the claimants did not require the court’s permission to adduce it.

defendant’s suggestion that the report’s authors had

“...the expert evidence in the report did not fall within Part 35...”

not been shown to have the necessary credentials to be

The court would not exercise its discretion to make a

experts was not well founded. The identity of the principal

presumption against the admission of AAIB reports.

investigators was known and their expertise was readily

The report was admissible evidence. It was of particular

discoverable. The bar to be surmounted to be an expert was

potential value on account of the AAIB’s independence, the

not particularly high; the degree of expertise went largely

fact that it was the product of an investigation by experts

to the weight to be given to the evidence rather than its

who were not concerned to attribute blame, and the fact

admissibility. Nor was it any objection that several experts

that the AAIB had greater ability than anyone else to obtain

had contributed to the report. That was inevitable in a field

and analyse relevant data. The exercise of discretion was to

such as air crash investigation. The report was not a bare

be carried out in accordance with the overriding objective,

finding: its statements of fact were evidence which the trial

which tended to favour the inclusion of evidence such

judge could take into account as he could any other factual

as the report: many litigants would find it very difficult to

evidence. Its expressions of opinion were ones to which a

access the relevant information. Parliament had provided

court was entitled to have regard. It was open to an expert

for reports to be made public and had not legislated, as

to express an opinion based on the facts insofar as his

it could have done, to make them inadmissible. Further,

conclusion was informed by his expertise. The AAIB was

such a presumption would impose an onus on the party

a body with the requisite expertise. Insofar as an expert’s

to deploy admissible evidence when the onus should be

report opined on facts which required no expertise of his

on the party seeking to exclude such evidence. There was

to evaluate, it was inadmissible, but there was nothing to

no reason why admissibility of the report should inhibit

be gained from excising opinions in that category. The

inspectors in their work. Inspectors were professionals

judge had correctly held that the trial judge should see the

who were not concerned with establishing civil liability and

whole report and leave out of account any part of it that

had no need to be circumspect because someone might

presumption against admitting AAIB reports, as admissibility would inhibit investigators from carrying out their role and discourage witnesses from assisting investigators.

Dismissing the appeal, the Court of Appeal held that the

06

want to use the report in litigation. Even if reports were not admissible, they were available and could be used, even if not evidentially, as the foundation of a claim or defence; AAIB reports had in any event been used as evidence in past cases. Further, reports were made public: the fact that they were also admissible was unlikely to be of critical inhibitory significance. Admissibility was unlikely to significantly affect the willingness of people to assist the AAIB. Hoyle v Rogers and others (2014) EWCA Civ 257

07

Costs If a claimant has good reason to sue a number of defendants,

specific common costs as a separate category which the

they will usually recover the costs of all the defendant parties

claimant was entitled to on a 100% basis. The matter would

from those found liable. However, as Haynes (deceased) v

be remitted to him to identify those non-specific common

Department for Business Innovation & Skills (2014) EWHC

costs. As regards the specific common costs, whilst the

643 (QB) shows, that is not always the case.

cost judge’s approach had been arbitrary, the claimant had

The claimant’s husband had been exposed to asbestos dust during his working life and it had been a material cause of his death from lung cancer. She issued proceedings against

failed to submit any evidence which would have enabled him to be more precise, and so it could not be concluded that his decision was perverse.

his ten employers. The defendant/respondent accepted

Haynes

the claimant’s Part 36 offer to settle her claim against it for

Innovation & Skills (2014) EWHC 643 (QB)

(deceased)

v

Department

for

Business

£18,000 plus standard costs. The claimant subsequently abandoned her claims against the other nine defendants, proceedings having been issued but never served. She then lodged a bill of costs amounting to £58,000. The defendant/ respondent argued successfully before a costs officer, and afterwards before the costs judge, that as its liability for the injury to the claimant’s husband was several, rather than joint and several, that principle should apply to the costs it was to pay.

The claimant appealed and submitted that under CPR 36.10(1), where a Part 36 offer was accepted, the claimant was entitled to “the costs of the proceedings”, which would mean the costs against all ten defendants; it was arbitrary to divide the common costs by the number of defendants.

Allowing the appeal but only to a limited extent, the High Court judge held that the costs of the proceedings, within the meaning of CPR 361.10(1), meant the costs of the proceedings against whom the deemed order had been made. Any broader definition would achieve obvious injustice and violate the language of the rule as seen in its proper contextual setting.

Common costs fell into two categories: non-specific costs which would have been incurred in any event, regardless of the number of other defendants; and specific costs, which were, in principle, capable of identification and division. In the instant case, the costs judge had not treated the non08

Post Jackson/Mitchell Cases Disclosure Although the case of Sainsbury’s Supermarkets Ltd v

of what had been agreed in the Commercial Court litigation.

Mastercard Inc and others [Lawtel 18 March 2014] is a

An obvious temptation for the defendant was to align the

commercial case and one decided on its facts, it does

proceedings so that the same disclosure timetable applied

illustrate a trend in courts applying the CPR less vigorously

in both. However, the two sets of proceedings seemed to

when dealing with disclosure, rather than other forms of

be following a different path; for example, there was less

evidence.

urgency with regard to disclosure in the Commercial Court

As a result of an agreement between the parties, in December 2013 the court had ordered the defendant/ applicant to provide standard disclosure by 11 April 2014.

In January 2014, the defendant wrote to the claimant to say that solicitors representing them in parallel Commercial Court proceedings had agreed with the claimants in those proceedings to an extension of time until 15 August 2014 for the giving of disclosure. In the instant application, the defendant sought an extension of time until 29 August 2014 on the basis that the disclosure process so far had taken longer than expected and that when they had agreed to the original disclosure timetable they had not appreciated the full scope of the documentation that would need to be disclosed. The claimant argued that the extension sought by the defendant was too long and the need for an extension had been caused, at least in part, by the defendant’s own delay. On that basis, it contended that any extension should be much shorter than that requested, or that there should be some form of staggered disclosure.

“…courts should act proportionately when making case management orders...”

proceedings because a preliminary issue had to be decided before disclosure could proceed. Given that courts should act proportionately when making case management orders, and in light of the parallel proceedings in the Commercial Court, it was not appropriate to grant an extension of time in the terms sought by the defendant. An extension from 11 April until 29 August was extremely hard to justify and would have meant that matters that might otherwise have been capable of being properly resolved before the summer vacation would not be dealt with until after it. The ECJ’s judgment in a relevant matter was due to be delivered before the vacation, and in those circumstances it was appropriate that disclosure should reach finality before the vacation. Although it was possible that the defendant might be able to disclose some documents earlier than others, the best solution was to deal with an overall extension for disclosure rather than to adopt a staggered approach. In the circumstances, a proportionate extension was one of just over two-and-a-half months until 29 June 2014.

Sainsbury’s Supermarkets Ltd v Mastercard Inc and others [Lawtel 18 March 2014]

Allowing the application in part, the High Court judge held that there was force in the suggestion that the timetable reflected in the defendant’s application was in part the result 09

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