Legal Watch: Personal Injury 11th December 2014 Issue: 044
Occupiers’ liability The case of Edwards v Sutton LBC [Lawtel 10/12/2014] is of interest at two levels. First, it is an illustration of how an occupier
In This Issue:
on its premises. Secondly, it shows the importance of calling
• Occupiers’ liability
may attract liability through a failure properly to assess a risk
live witness evidence, rather than relying on documents and hearsay evidence.
The claimant’s case was that after a bicycle ride with his wife
• Damages/causation • Civil procedure/litigation friend
they were returning to a car park and had to cross a narrow
• Civil procedure/evidence
water was about 1.1 or 1.2 metres below the surface of the
• Jackson/Mitchell/Denton
ornamental bridge which crossed a stream with rocks in. The bridge and was about half a metre deep. The bridge was more
than a hundred years old and had a low parapet about 26-
• Costs management • From Plexus Law Scotland
30 cm high. The claimant’s evidence was that he had been
pushing his bicycle on his left ahead of his wife. They were in single file. On the bridge his bicycle started to fall to his left
and he toppled over the parapet and into the water. He did not have a good recollection of the aftermath of the accident. The defendant’s case, based on reports from a local authority
gardener, the ambulance crew and the hospital staff, was that the claimant had been riding his bicycle rather than pushing
it. The defendant further contended that the bridge was
reasonably safe; there had never been a previous accident or complaint; the bridge was ornamental and fitting guardrails
would not be appropriate, although an engineering solution was possible.
Finding in favour of the claimant, the deputy High Court judge
held that the written records from the gardener, ambulance crew and hospital staff were nearly contemporaneous to the
accident but were hearsay. There were no witness statements from the makers and they had not been cross-examined. The
court was therefore entitled to give them less weight. It was also not clear whether the ambulance crew were reporting what the
claimant had told them or what the gardener had told them, or whether the hospital staff were reporting what he had told
them or what the ambulance crew had told them, which would
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
be multiple hearsay. The records had nevertheless been
alternative routes. That would not involve significant cost or
dealt with satisfactorily by either side, since the claimant and
that the claimant would have heeded any warning.
allowed into the trial bundle. The evidence had not been
his wife had not dealt with it in their own witness statements
when they must have realised that it contradicted their case. On the balance of probabilities the court accepted the evidence of the claimant and his wife that they had been
pushing, and not riding, their bicycles. Their evidence had
been straightforward and consistent. The claimant’s inability
to recall the aftermath of the accident was not sinister. There was no proper basis for rejecting their evidence.
‘There had been no formal risk assessment of the bridge and no formal consideration of its safety.’ The bridge gave rise to an obvious risk of injury, because
it was narrow, had a low parapet and because of the transition from tarmac to the paved surface of the bridge. There was a risk that any injury would be serious because
of the rocks in the stream. There had been no formal risk assessment of the bridge and no formal consideration of
its safety. On the other hand there had been no previous
accident and there were no formal safety standards relevant to such a bridge. The question was not whether the bridge
was structurally sound as a bridge or garden ornament but whether visitors would be reasonably safe in using it. The
court had to balance the risk of injury and its seriousness against the cost and feasibility of preventive measures. It
was not suggested that the bridge should have been rebuilt
to modern standards. However, there was a clear risk of serious injury which had not been identified and addressed.
There was no duty to fit railings but, if that was not done,
the local authority had to take other measures to protect visitors, namely warning of the low parapet and suggesting
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reduce the amenity value of the bridge. The evidence was The bridge presented an obvious danger but the claimant had not taken sufficient care for his own safety. In the
absence of an exculpatory reason for his loss of balance, he had not shown the necessary degree of vigilance. He said
that the bicycle had pulled him over, but did not explain why he had not let go of it. He was contributorily negligent to the extent of 40%.
Damages/causation The case of Walls v London Eastern Railway Ltd [Lawtel
10/12/2014] is a fairly typical example of an argument about causation of back problems in a claimant with pre-existing
degenerative changes. However, it is of greater interest because of the judge’s criticism of the claimant’s medical expert.
The claimant, who was employed by the defendant, had
been at a railway station attending a work-related health and safety course on 5 February 2009 when he slipped and
fell. The defendant did not dispute liability for failing to grit the path leading to the station but did dispute the extent
and nature of the injury. According to the claimant, he was walking down a slope and holding onto the rail but slipped
and fell onto his left side. As the day progressed, the pain increased in his left thigh, lower back and hips. After the fall he was absent from work for two weeks. On 6 April, he was
driven to hospital with great pain in his back and left leg. The information the claimant gave was inconsistent: his witness
statement from 2012 stated that he had gone to the General
Practitioner a couple of days after the accident as the pain had got worse. He had also stated that he visited hospital a few days after the accident rather than two months. At the trial, he acknowledged that that was incorrect. After
returning to work, the claimant also claimed that he had been put on nightshift because it was less demanding on his back. However, his line manager gave evidence that he knew nothing of the claimant’s back problems. The defendant’s medical expert gave evidence that the claimant
was suffering from a long-standing, degenerative condition
of the lower spine, which was supported by MRI scans. The
evidence of the claimant’s medical expert was that the pain was all due to the accident and that the fall caused a tear
in the lower back’s fibre which caused a disc to leak. The issue for the determination of damages was the nature and extent of the injury.
‘The claimant’s expert had presented his evidence as a series of lectures, but it was no part of an orthopaedic expert’s expertise to say who should be believed and why’ The deputy High Court judge held that there was no doubt
that the claimant was an unreliable source of evidence and the court was not able to believe him. The court found that
he suffered progressive new pain after a two-month period following the fall, leading to his hospital admission. The
evidence of the line manager, which did not support the
claimant’s claim of progressive pain after the accident, was accepted. Between the evidence of the two experts, the
defendant’s was preferable; he had subjected the material to careful analysis. The claimant’s expert had presented
his evidence as a series of lectures, but it was no part of
an orthopaedic expert’s expertise to say who should be
believed and why. He had diminished the role of the medical
expert in doing so. He had also unreservedly supported the claimant’s claim even though the claimant’s evidence
had been misleading. Further, the way that the claimant had fallen did not support the theory of torn fibre; he did
not fall on his back but heavily on his left side. Therefore, the court found that the bruising was mostly over within a
fortnight and that the visit to hospital had been prompted by long-standing degenerative changes in the claimant’s lower spine.
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The claimant had sustained no structural damage. It was likely that he had suffered fairly extensive bruising; he was
of a hardy disposition and there was no doubt that he coped the best he could with the discomfort and was not
necessarily free from pain when he went back to work a
fortnight after the fall. It was appropriate to award ÂŁ1250 in damages.
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Civil procedure/litigation friend In the case of Dunhill (Protected Party) v Burgin (2014) the Supreme Court held that a party lacking mental capacity
must have a litigation friend and without one the proceedings
could be nullified. It is perhaps not surprising therefore that
in Bradbury and others v Paterson and others (2014) EWHC 3992 (QB) the five claimant patients and the third defendant health authority applied for the setting aside of an order
discharging the Official Solicitor as litigation friend of the
first defendant surgeon in the claimants’ clinical negligence claims.
The claimants alleged that the first defendant had negligently
carried out breast cancer surgery, and claimed against him and against the other defendants, for whom he had worked. The first defendant was a member of a defence organisation through which insurance was available. The Official Solicitor had been appointed to act as his litigation friend as it
appeared that he lacked capacity to give instructions. The defence organisation later informed the Official Solicitor that the first defendant was not entitled to the benefit of the
insurance policy. As the first defendant’s legal representation would no longer be funded, the Official Solicitor applied under CPR 21.7 to be discharged as litigation friend. The
judge granted the order without representations from the claimants or the other defendants.
‘…no litigation friend who needed to instruct lawyers would be prepared to act without a cast-iron guarantee that the costs of doing so would be met.’ Rejecting the application, the High Court judge held that the power to order the termination of a litigation friend’s appointment was not restricted in the manner contended
for. Subject only to the requirement in CPR 2.7(2) that the litigation friend provided evidence in support of his
application for an order terminating his appointment, there was no further requirement in that rule requiring that he identified a substitute. The Official Solicitor had further
submitted that a litigation friend who was unwilling to continue to act was a person most unlikely to satisfy the criteria in CPR 21.4(3); further, regarding litigation friends
other than the Official Solicitor, no litigation friend who
The claimants and third defendant argued that the court’s
needed to instruct lawyers would be prepared to act without
subject to the overriding requirement that a protected
met. Those submissions had considerable force in general,
have discharged the Official Solicitor without identifying a
officer of the court, would act contrary to the interests of a
power to terminate a litigation friend’s appointment was
a cast-iron guarantee that the costs of doing so would be
party had to have a litigation friend, so the court should not
although it was doubtful whether the Official Solicitor, as an
substitute litigation friend.
protected party in such a situation. Nonetheless, because of
the funding constraints to which he was exposed, enforced continuation as a litigation friend would be uncomfortable.
The judge had been entirely justified, and almost certainly obliged, to make the orders regarding the cessation of the Official Solicitor’s involvement. It might have been open to
her to adjourn the application so the other parties could
make representations, but the application had been properly 05
constituted. Nevertheless, the situation was unsatisfactory; some way had to be found of enabling the claims to be considered properly.
The claimants had raised questions about whether the
first defendant in fact lacked capacity to conduct the proceedings. The logical next step was therefore to resolve
that issue: if he did not lack capacity, the litigation friend issue became irrelevant; if he remained a protected party,
the question of how the Official Solicitor was to be funded would have to be considered. There were at least three
possibilities for securing the funding: if the first defendant had capacity to manage his property and affairs, but not
the litigation, he could ask the Official Solicitor to act for him if he put him in funds; if he lacked capacity to manage
his property and affairs, the Court of Protection would have
jurisdiction to intervene and ensure that the Official Solicitor was properly funded; and, if those avenues were not fruitful, the High Court would have power to direct that one or more
of the parties should fund the Official Solicitor’s costs, the
initial outlay to be recoverable as part of the costs of the litigation. The case was unusual and appeared possibly to require the intervention of the Court of Protection, so
would be transferred to the Vice President of that court to ensure that the relevant expertise was applied. In order for capacity issues to be addressed properly when the case
was transferred, the court directed that the claimants and second and third defendants each put the Official Solicitor
in funds from which he would have liberty to instruct an expert to examine the first defendant as to his capacity, and to take advice on the implications of the findings.
The proceedings would be stayed to enable the issue of capacity to be resolved.
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Civil procedure/evidence In high-value personal injury claims there have always been
when all of the claimant’s experts gave evidence. Bearing
required to attend the final hearing. The case of Iredale v
parties’ respective experts, it was desirable that both sets of
problems in accommodating the many expert witnesses Horgan and another [Lawtel 9/12/2014] suggests that the
courts will continue to adopt a pragmatic approach to such difficulties, even in the post Jackson/Denton era.
Both the claimant and defendants wished to call experts
on the issue of brain damage. The trial window had been
set without regard to the availability of the defendant’s four expert witnesses, and it transpired that not all of them would
be available to attend court during the period specified. At the instant hearing, the claimant suggested that if the
trial began on a specific date during the window, most of
in mind the significant difference between the views of the experts should be available in court to hear the evidence of
their opposite numbers, so that they could each give such
advice and assistance to counsel as might be required to ensure that both parties’ cases were properly advanced. In those circumstances, although it was unfortunate that the trial would have to be delayed for several months, the court
felt constrained to vacate the trial to ensure that both parties
had a proper opportunity to deploy all the necessary expert evidence. Vacating the trial was the course by which the least injustice was caused to both parties.
the defendants’ experts would be able to attend to give evidence.
‘…the court felt constrained to vacate the trial to ensure that both parties had a proper opportunity to deploy all the necessary expert evidence.’ Vacating the trial date, the deputy High Court judge held that due to the lateness of the claimant’s suggestion, the
defendants had been unable to take up-to-date instructions
on the availability of their experts on the specific dates
suggested and the court had also been unable to make
enquiries as to its own ability to accommodate a trial on those specific dates. It was of concern that, if the court
acceded to the claimant’s suggestion, at least some of the defendants’ experts would not be able to be present in court
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Costs management In the case of Redfern v Corby Borough Council [Lawtel
all subsequent costs, as he was bidden to do by Practice
proportionality to reduce a claimant’s costs’ budget.
fix a figure which would be reasonable and proportionate
5/12/2014] we have an example of a judge applying The claimant/appellant had been employed by the defendant/ respondent and alleged that he had suffered psychiatric injury as a result of stress, bullying and harassment at work.
There was to be a seven-day trial on causation, liability and quantum. Each party had been given permission to instruct
two experts, the claimant was estimated to have between
7 and 15 witnesses and the claim was valued at around
£700,000. At a costs management hearing a deputy Master stated that it was worrying that the claimant’s costs budget was equal to the value of the claim and that the amount of
costs already incurred was excessive and disproportionate. He approved a much lower budget for the claimant.
The claimant appealed and submitted that the deputy Master’s function was to focus only on costs yet to be
incurred; that he had taken the wrong approach by indicating
a costs amount which he considered to be proportionate in relation to the sum claimed and then adjusting the overall
budget to conform to it; and, as a result, the amount allowed for costs yet to be incurred was inadequate.
‘It had been sensible to fix a figure which would be reasonable and proportionate for the costs of the whole action.’ Rejecting the appeal, the High Court judge held that the deputy Master had not sought to approve or disapprove costs which had already been incurred. He had recorded his
comments on those costs and had taken them into account when considering the reasonableness and proportionality of 08
Direction 3E (Costs Management). It had been sensible to for the costs of the whole action. The practice direction had
been applied correctly. The only way in which one could take into account excessive costs already incurred was to
limit approved subsequent costs at a lower level than would have otherwise been approved. The deputy Master had not erred in principle.
Jackson/Mitchell/Denton Although it is not a personal injury case, British Gas Trading
sufficient experience to identify the correct form. The
importance in illustrating a court’s approach to relief from
for failure to comply with the original order for three months
the emphasis placed by the judge on the impact of the
reason why the trainee had not been properly supervised.
Ltd v Oak Cash & Carry Ltd (2014) EWHC 4058 (QB) is of
solicitor’s personal difficulties could not be a good reason
sanctions in the post-Denton era. It is interesting to see
and the unless order subsequently. Nor was there a good
defendant’s failings on court resources.
In considering all the circumstances, the court took account
The court made directions in November 2013 for both
parties to file listing questionnaires by 5 February 2014. The defendant had not filed its questionnaire by 10 February. The court issued an order that unless the defendant filed its questionnaire by 19 February, the defence would be
struck out. On 18 February, the defendant filed a directions
questionnaire, not a listing questionnaire. The solicitor
with conduct of the defendant’s case had had personal difficulties during the litigation, and had delegated the task
of complying with the unless order to a trainee solicitor. After being notified that the wrong document had been filed, the defendant’s solicitors filed a listing questionnaire on 21
February. The claimant obtained judgment in default. The defendant successfully applied for relief from sanctions. The judge also set aside the default judgment.
Allowing the claimant’s appeal, the High Court judge held that a three-stage test was to be applied to relief applications:
identifying the seriousness of the default; considering why the default occurred; and evaluating all the circumstances of the case. The breach had been serious and significant.
The defendant had failed to comply with both the original order and the unless order. Its solicitors had had over three
months to complete a not particularly difficult questionnaire. It had not been completed, and when an attempt was made
to comply with the unless order, the wrong form had been
sent. There was no good reason for the breach. Although the defendant’s solicitor had had personal difficulties, there were over 40 solicitors in the firm and there had to be
provision to delegate work to others with the skill to ensure that tasks were properly completed. It had not been until
the unless order was issued that the solicitor had delegated the task to a trainee, and the trainee must not have had
of the effect of the failure to comply. The persistent failure
to provide the questionnaire had meant that the trial date
of two days was lost. That was a matter of grave concern when one considered the impact that it would have on the
instant case, the impact on other cases awaiting hearing dates and the waste of court time. The court also considered the effect on the defendant of not being granted relief from sanctions. The judgment was substantial. It was unfortunate
that refusal to grant relief could mean that the defendant would have to bring an action against its solicitors. In the
circumstances as a whole, there was no reason why relief should be granted. The judge had erred in applying an overly generous interpretation of Mitchell. In the absence of an application to set aside the default judgment, the
judge should not have taken the view that the application should have been brought and therefore would be treated as though it had been brought. Further, there had been no evidence in support of such an application.
‘...the trial date of two days was lost. That was a matter of grave concern when one considered the impact that it would have on the instant case, the impact on other cases awaiting hearing dates and the waste of court time’
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From Plexus Law Scotland
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