Legal Watch: Personal Injury 30th July 2014 Issue: 029
Liability/RTA The case of Beaumont and another v Ferrer (2014) EWHC 2398 (QB) sees the court considering the doctrine of ex turpi causa in relation to claims for personal injury. The claimants, who were both 17, had formed a plan with four other youths to take a taxi from Salford to Manchester city centre and make off without paying the fare. When they reached the city centre, three of the youths got out of the taxi and ran off without paying. The defendant then drove on. The claimants tried to get out of the taxi as it was moving, fell and sustained serious injuries. They argued that the defendant owed a duty of reasonable
In This Issue:
• Liability/RTA • Employers’ Liability • Civil Procedure • Article – The outcome of the long awaited review of the guideline hourly rates (GHRs) for solicitors’ costs.
care to his passengers, all comparatively young people, to ensure their safety and well being; that the doctrine of ex turpi causa did not apply, as there was no relevant turpitude: no offence under S3 Theft Act 1978 had been committed, as the defendant left the scene before he gave the group time or opportunity to pay the fare; even if they were engaged in
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criminal conduct leading to their injuries, the doctrine of ex turpi causa did not apply in the circumstances of the case;
The Major Bodily Injury Group (MBIG) | Spring
their offending was not of such gravity that it should engage
Seminar | 28.04.15 | The Wellcome Collection,
the public policy of ex turpi causa.
London
Rejecting the claims the High Court judge held that the defendant had done nothing to put the claimants in the position where they were poised to exit the taxi, and he did nothing to lead to their decisions to leave the moving taxi. Further, the execution of the criminal joint enterprise, with three youths already having left the taxi and run away, put him in a dilemma. He drove on partly because he wanted to do something to impede the youths left in the taxi from exiting and making off without payment; fear also played a part (he had been stabbed during an attack by another group of youths). It had been argued that at that point the defendant should have allowed all the youths to leave the taxi and resigned himself to the inevitable loss of the fare and the great unlikelihood of any of the offenders being apprehended and sanctioned
for their wrongdoing. Even if he should have followed that
out of the joint criminal enterprise, and in each case chose
course and in not doing so was at fault, the failure followed
to jump or step out of the moving taxi. Their only reason
from the criminal intentions and actions of the youths, and
for doing so was to evade payment of the fare. Applying
any degree of fault was simply overwhelmed by those
ex turpi causa here tended strongly to promote the public
intentions and actions. Even if the defendant was in breach
policy that underpinned the doctrine. Dishonest evasion of
of his duty of care by driving on as he did, that breach did
a taxi fare should not be dismissed as just another inevitable
not cause the claimants’ injuries. The conduct of each of
expense of the driver, but should be seen for reasons of
them in jumping or stepping out of the taxi broke the causal
public policy as a pernicious and reprehensible practice
connection between such fault and the damage. This was a
that tended to erode the efficiency, and raise the costs, of
case where justice was served by holding that the claimants
a service that was valuable to the community. It could also
in substance brought about the injuries themselves.
risk public disorder if taxi drivers, responding to a crime that
‘The correct approach… was to ask whether the criminal act was no more than the occasion for the damage or whether the damage was caused by the criminal act...’ The claimants had committed an offence under S3 of the 1978 Act by participating in a joint enterprise pursuant to which their co-conspirators had already taken off without payment. The correct approach to deciding whether the doctrine of ex turpi causa applied was to ask whether the criminal act was no more than the occasion for the damage or whether the damage was caused by the criminal act; if the latter was the case, the doctrine would apply. This was a plain case where the damage was caused by the criminal conduct of the claimants. That conduct was not carried out on the spur of the moment. There was a plan jointly to “jump” the taxi, and that plan was put into effect. Three of the group had already left the taxi and taken off before the defendant drove on. The claimants at that point had every opportunity to recognise their dishonest intent, to reseat themselves in the taxi and to travel on safely. Instead, they deliberately chose to follow their companions in the carrying
was easily perpetrated but difficult to police, resorted to their own counter measures. In the circumstances, the claimants were in any event precluded by the doctrine of ex turpi causa from succeeding in their claims.
Employers’ Liability The case of Sloan v Rastrick High School Governors (2014)
student; she had erred in disregarding evidence about the
EWCA Civ 1063 provides a very detailed analysis of a claim
school’s layout and gradients; she had erred in preferring
brought under Regulation 4(1) Manual Handling Operations
the evidence of the defendant’s medical expert; she should
Regulations 1992. Cases of this nature are often difficult to
have awarded the defendants its costs only from the date it
defend but here the defendant was successful.
disclosed its risk assessment.
The appellant/claimant had been employed by the
Rejecting the appeal, the Court of Appeal held that under
respondent/defendant as a learning support assistant.
Regulation 4(1), the employer had to prove that it had taken
Her work involved pushing pupils between classrooms in
appropriate steps to reduce the risk of injury to the lowest
their wheelchairs. She began work on 1 September 2008
level reasonably practicable, and that the employee’s injury
and spent her first five days training and shadowing. On 17
had not been caused by any failure to do so. The recorder
September, she experienced pain after pushing a pupil in
had misdirected herself by saying that the claimant had to
her wheelchair on a flat surface. She saw her GP and was
prove that the defendant had breached their Regulation 4
prescribed pain relief. She left the defendant’s employment
duties. However, that was not a basis for setting aside her
some weeks later. She claimed that she had suffered a
order. She had reached her conclusions on the evidence,
soft tissue injury to her neck and shoulder, that she had
without any reliance on the burden of proof. She found that
ongoing pain, and that the injury was the cumulative
while the claimant was selective in her memory and prone
result of her work up until 17 September. She claimed
to exaggeration, the defendant’s witnesses were impressive
that the defendant had not complied with its duties under
and credible. With that in mind, she made firm findings of
Regulation 4(1) Manual Handling Operations Regulations
fact and reached firm conclusions, correctly applying the
1992. The recorder found that the claimant had suffered a
burden of proof at that stage.
strain injury on 17 September, resulting in symptoms over the next couple of weeks, and that any further symptoms arose from unconnected degenerative changes. She found no breach of the Regulations and ordered the claimant to pay the defendant’s costs.
Pupils used their own wheelchairs in school, and their choice of wheelchair was based on medical and therapeutic considerations. There was no evidence about the cost to the defendant of providing powered wheelchairs. However, there was evidence that requiring manual-wheelchair users
The claimant appealed and submitted that the recorder had
to use powered wheelchairs would be contrary to their
misdirected herself on the burden of proof; she had failed to
interests. The recorder addressed that, correctly finding that
make a clear finding about whether the defendant could have
it was not reasonably practicable to avoid the use of manual
provided pupils with powered wheelchairs and thus avoided
wheelchairs.
the need for her to undertake manual handling operations involving a risk of injury; she failed to make a clear finding that the defendant had carried out a suitable and sufficient risk assessment; she had failed to make a clear finding that the defendant had proved that it had taken steps to reduce the risk of injury to the lowest level reasonably practicable; she had failed to find that the defendant had provided information on the combined weight of each wheelchair and
‘..it was not reasonably practicable to avoid the use of manual wheelchairs’ The defendant prepared an annual risk assessment for each pupil who used a wheelchair, and the recorder found those assessments to be suitable. The claimant’s complaint that she had not also said they were “sufficient” was nit-picking. It was clear that she considered, and was entitled to consider, that they satisfied the requirements of Regulation 4. Clearly, risk assessments had to be prepared by somebody with the necessary training and experience. Although the employee who prepared the assessments for the defendant was not a health and safety officer, she was experienced and properly trained. The defendant had sought to reduce the risk of injury by training, regularly rotating staff and keeping slopes to acceptable gradients. The training, which the recorder found to be full and adequate, covered the practicalities of safe moving and handling in some detail. The safe pushing of wheelchairs was neither difficult nor complex, and the evidence justified the recorder’s conclusion that the defendant had not breached its Regulation 4(1)(b)(ii) duty. It was neither necessary nor appropriate for the defendant to provide the combined weight of each student and his wheelchair. In any event, their failure to do so was not causative of the injury. The recorder had correctly disregarded the evidence about the school’s layout and gradients. Once she rejected the claimant’s case that the injury was a cumulative one, that evidence was irrelevant. The recorder was fully justified in her findings as to the nature and extent of the claimant’s injury. The claimant’s challenge to the costs order amounted to a claim that the only reasonable order was one which penalised the defendant for its late disclosure of the risk
assessment. While the court could make a costs order to mark its displeasure at a party’s conduct, that was not the only reasonable response in the instant case.
Civil Procedure A procedural complication which arises from time to time
The defendant appealed and submitted that, applying
was dealt with in the case of Symes v St George’s Healthcare
Lunnun (1999), the default judgment should be regarded
NHS Trust (2014) EWHC 2505 (QB).
as having established nothing more than that it had acted
The claimant had been referred to a consultant working for the defendant trust because of a lump on his face. The consultant reported that it was a pleomorphic adenoma but in fact it was a malignant tumour. The claimant complained that the consultant had failed to advise him that his lump was suspicious of malignancy, and failed to arrange for an urgent superficial parotidectomy to be carried out within two weeks. He contended that those failures had resulted in metastasis of the tumour to the lungs and invasion of the facial nerve, which were diagnosed four months later, at which point he had the required surgery. Before proceedings were issued, the defendant admitted that the consultant’s report had been wrong and that the parotidectomy should have been carried out within two weeks of the consultant seeing him rather than four months later. However, it denied that the delay had affected the nature or extent of the claimant’s surgery or post-operative treatment, or his subsequent development of lung cancer or life expectancy. The claimant issued proceedings, and relied on the defendant’s admissions. The defendant did not serve a defence or acknowledge service and the court ordered judgment in default. Following agreed directions, the claimant served a schedule of losses and the defendant served a counter-schedule which accepted that the delay in the claimant having the surgery caused him pain and discomfort, but disputed the other consequences of the delay as claimed. The Master held that it had been contrary to the overriding objective for the defendant to allow judgment to be entered against it and then to serve a counter-schedule that addressed allegations of causation that should properly have been addressed within a defence that should have been served weeks earlier, and he struck out those parts of the counter-schedule that were inconsistent with the particulars of claim.
negligently and that as a result the claimant had suffered some, but not specific, loss and damage; it was inappropriate to regard it as having already been determined, by dint of the default judgment, that the defendant was liable to the claimant for the losses claimed since that presupposed a causation determination which the default judgment did not entail.
‘...the default judgment should be regarded as having established nothing more than that (the defendant) had acted negligently and that as a result the claimant had suffered some, but not specific, loss and damage’ Allowing the appeal, the High Court judge held that the defendant’s position was correct, and any other conclusion would be contrary to authority. The starting point was the particulars of claim, which were to be regarded as a proxy for the default judgment, in order to work out what that judgment had decided. That approach was consistent with the need to scrutinise a default judgment with extreme particularity so as to ascertain the bare essence of what it must necessarily have decided. The court, like the Master,
was bound to follow the approach in the authorities, including Lunnun, which remained good authorities post-CPR. No authority had been cited that held that a defendant could not challenge causation in the face of a default judgment where damages had been ordered to be assessed. As the claimant recognised, in the assessment of damages phase of proceedings it was open to a defendant to advance arguments that the claimant should not be permitted to recover to the extent of the amounts claimed. A defendant had to recognise that “some damage” had been caused, but did not have to accept that the actual damage alleged by the claimant in his statement of case had been caused by the alleged breach of duty. In any event, the defendant had accepted that the claimant had suffered at least some of the damage that he had alleged in the particulars of claim. Therefore, the default judgment should be regarded as having determined merely that there was some damage. The Master was incorrect and therefore CPR 52.11(3)(a) applied. Although the situation that had arisen was regrettable and should be avoided, the Master had been wrong to hold that the defendant had acted in breach of the CPR and contrary to the overriding objective. The CPR did not preclude a defendant from contesting issues of causation in the context of an assessment of damages hearing after a default judgment on liability had been obtained. The defendant had not been obliged to serve a defence setting out its case on causation, and the Master should not have criticised it for the way in which it had acted. CPR 16.5 and CPR PD 16 - 12.1 would come into play only if it was necessary or obligatory for a defendant to serve a defence, which was not so in this defendant’s case. However, it would have been better if it had served a defence, and then it would have been apparent to the Master that it was advancing a causation case. The claimant’s solicitors knew all along that the defendant intended to run a causation case, so its counter-schedule was not some sort of ambush; the defendant had not acted contrary to the overriding objective.
Article The outcome of the long awaited review of the guideline hourly rates (GHRs) for solicitors’ costs. After several false dawns the Master of the Rolls (MR) has finally made a decision following the review of GHRs, which have not been adjusted since 2010. The outcome is probably not one that was predicted by anyone: he has rejected the proposals made. The principal reason for this is the inadequacy of the survey on which the reviewing committee had based its recommendations. As the MR put it: ‘A relatively small non-randomised survey cannot be a secure basis for determining what it costs solicitors to run their practices. This shortcoming in the evidence is fundamental’. He also expressed concern that the impact of the Jackson reforms could not yet adequately be taken into account. The MR did agree with some of the committee’s recommendations. There will be no change to the current banding of fee earners from A to D by the addition of A* and E. Nor should there be separate GHR bands specific to specialist fields of civil litigation. The old arguments will therefore roll on as to what are the appropriate hourly rates to be charged by claimant personal injury practitioners. He also accepted the recommendations to amend the criterion for Grade A fee earners to includes Fellows of CILEX with 8 years’ post-qualification experience; and that costs lawyers who are suitably qualified and subject to regulation be eligible for payment at GHR Grades C or B, depending on the complexity of the work. These changes will take effect from 1 October. What of the immediate future? There will be no change at present to the 2010 rates and consideration will be given ‘to see what steps can be taken to obtain evidence on which GHRs can reasonably and safely be based’. In the absence of a full and therefore expensive survey of the true cost of running legal practices, it is difficult to see how the current impasse can be broken.
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