Legal Watch: Personal Injury 29th January 2015 Issue: 049
Employers’ liability The case of Dusek and others v Stormharbour Securities LLP (2015) EWHC 37 (QB) illustrates how an employer may attract liability if it fails to enquire adequately about the safety of travel arrangements made for an employee. The claimants, who were the wife and children of a deceased employee, brought a fatal accidents claim against the
In This Issue: • Employers’ liability • Employers’ liability/costs
defendant employer.
• Public liability
The deceased had been working on a project to secure funding
• Civil procedure/expert evidence
to develop hydroelectric projects in the Andes Mountains in Peru, along with a Peruvian investment company. Two
• Part 36
Korean companies were identified as potential investors. It
• Costs/conditional fee agreements
was decided that it was necessary for the investors to visit the site and the investment company advised one of the
• From within Greenwoods
Korean companies that the site was reachable either by long overnight jungle walks or by a road trip to an airfield and then a helicopter ride. The Korean companies requested that a representative of the defendant was present and so the defendant sent the deceased on the trip. The Peruvian company chartered a helicopter from Cusco to Mazuco. One of the quotations received advised against flying from Cusco and instead recommended starting from Mazuco to avoid crossing the Andes because of the remote and inhospitable terrain. The Peruvian company went with an operator willing to fly the route it wanted. The first leg of the trip from Cusco to Mazuco, although completed, was delayed due to poor weather conditions and the maximum permissible density altitude and weight were exceeded. The parties then flew around the project site but returned to Mazuco because of poor weather conditions. The crew made a flawed decision to fly back to Cusco the same day and ran into operational difficulties as a result. They crashed into the Andes Mountains and everyone on board the flight was killed.
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The issues were (i) whether the scope of the employer’s
The defendant should have enquired of the Peruvian
duty of care extended to the helicopter charter and flight;
company as to details of the flight operator, the helicopter to
(ii) if there was such a duty, did the employer breach it; (iii)
be used, the flight route and how they satisfied themselves
if the employer breached its duty, did that breach cause the
as to the safety of the flight route. The Peruvian company
employee’s death.
had been advised to take a coach from Cusco to Mazuco
Finding in favour of the claimants, the High Court judge held that the deceased had been on the helicopter for the purposes of his employment and the defendant owed him a duty to take reasonable care not to subject him to unnecessary risk. Irrespective of whether it had organised the helicopter trip or whether the employee was looking to it to take reasonable care of his safety, the employer owed him a duty to take reasonable care to ensure that he was reasonably safe while travelling to and from work abroad where he was required to go.
“(The defendant) owed a duty to safeguard the employee from the danger involved by inquiring into the safety of the trip and conducting a risk assessment.” It was clear that there were obvious potential dangers involved in the trip, namely unsafe operation or performance of the helicopter. The defendant knew that the deceased would be going on a chartered helicopter trip to visit a site in a remote, inhospitable, inaccessible and mountainous area. It owed a duty to safeguard the employee from the danger involved by enquiring into the safety of the trip and conducting a risk assessment. It had no knowledge of whether the companies that organised the trip had flown with the helicopter operator previously, had carried out a risk assessment or had any safety concerns. Its health and safety officer accepted in evidence that something should have been done. In doing nothing, the defendant breached its duty of care.
as it was safer to begin helicopter travel from there because of the dangers of flying over the Andes. If the employer had made the safety enquiry required to make an appropriate risk assessment, it would have instructed its employee not to take the flight because of safety concerns and he would have listened. The defendant’s breach caused the deceased’s death.
Employers’ liability/costs Prior to 1 April 2013, lower value employers’ liability claims
or purposive interpretation to CPR 45.20(1)(a) different
were subject to a fixed uplift of the claimant’s solicitor’s
from the specific meaning given to the term “employee”
base profit costs by way of the success fee under an old
by S2(1). The words “contract of service” in S2(1) had a
style CFA. The issue in Broni and related claims v Ministry
single meaning which did not vary. The claimants were not
of Defence (2015) EWHC 66 (QB) was whether that regime
engaged under a contract of service and the fixed success
applied to members of the armed forces i.e. were they
fee regime did not apply to their claims.
‘employees’? The appellants were three members of the armed forces who appealed against decisions that the fixed success fee regime applied to the claims that they had brought against the respondent defendant in respect of injuries they had sustained at work. CPR 45 IV had provided for fixed success fees in certain employers’ liability claims. CPR 45.20(1)(a) provided that “this Section applies where... the dispute is between an employee and his employer”. CPR 45.20(3)(b) stated that “employee” had the meaning given to it by S2(1) Employers’ Liability (Compulsory Insurance) Act 1969, which defined an “employee” as “an individual who has entered into or works under a contract of service or apprenticeship with an employer”. It was decided that the claimants were employees and that the fixed success fee regime therefore applied to their claims. The defendant, seeking to uphold the decisions below, argued that the court should adopt a purposive approach to the construction of the words “contract of service” in S2(1) of the 1969 Act so that the relationship between a serving member of the armed forces and the defendant was treated as one of employer and employee. Allowing the claimants’ appeals, the High Court judge held that there was no good reason for giving the words “contract of service” in S2(1) of the 1969 Act a construction broader than their usual meaning. There was no ambiguity in CPR 45.20(1)(a) and 45.20(3)(b). The rule addressed itself to the question of what the term “employee” meant: it was a person who fell within S2(1) of the 1969 Act. There was in those circumstances no scope for giving a broad
“The claimants were not engaged under a contract of service and the fixed success fee regime did not apply to their claims.”
Public liability The case of Baxter v Barnes (2015) EWHC 54 (QB) involved
his employees had set up the machine in essentially the
a claim for personal injury brought primarily in contract.
same way and position as the day before. They had not
The claimant, an arborist, had sustained serious injuries when he fell from a piece of equipment which he had hired from the defendant in order to prune a tree. The equipment was a mobile elevated work platform. Access to the site was limited and the tree was close to a slope. The platform was specifically designed for such situations. It was suitable for working on sloping ground, provided that the feet of the outriggers were properly supported on ground that was reasonably level, firm and stable. The defendant delivered the platform to the site and helped to set it up in the first position from which the claimant was going to use it. Together with the platform, he supplied the claimant with hard plastic plates, to support the feet of the outriggers of the platform. Those plates had not been supplied by the manufacturer for use with that platform. After using the platform at the first position within the site, the claimant’s employees moved the platform to another position. Whilst the platform was in use, it overbalanced and toppled over. Subsequent investigations revealed that two outriggers had lifted up from the ground. The experts agreed that, on the balance of probabilities, the platform had become unstable and toppled because one or more of the outrigger feet slipped off the edge of the plate into the soft ground.
set it up in a position which the defendant had advised was unsuitable and they had followed the defendant’s instructions in setting it up. It was clear on the evidence that the position was not unsuitable for the positioning of a platform of suitable quality. In particular, the manufacturer’s evidence was that the ground appeared suitable for the platform and that the movement of the outrigger foot was as a result of the operation of the platform, not the collapse of the plate into soft ground. The cause of the accident was the slippage of the outrigger foot upon its bearing plate. That slippage occurred because the plate was not of suitable quality for the type of platform concerned. The platform was specifically designed for use on rough or soft terrain and on slopes and narrow or uneven surfaces, where it was liable to be subjected to lateral forces which could cause a foot, if unrestrained by its bearing plate, to move considerably. The platform should have been provided with bearing plates which were attached to the outrigger feet or so shaped or recessed that the feet were prevented from slipping off the plate. For that reason, the platform supplied by the defendant was not of a satisfactory quality for the purposes of the implied condition contained in S9(2) Supply of Goods and Services Act 1982. The platform also toppled over without any warning device or cut-out operating,
The claimant submitted that the accident had been caused
whether because of a particular fault which had developed
by defects in the platform and/or instructions which the
on that specific platform, or because the combination of
defendant had given to him in relation to setting up the
the particular way the topple was initiated and the design
platform. The defendant’s case was that the accident was
of the platform resulted in the warning device and cut out
solely due to errors by the claimant in setting up or operating
not operating before the topple was initiated. The claim
the platform.
succeeded in contract, but the defendant did not have a
Finding in favour of the claimant, the deputy High Court
separate liability to the claimant in negligence.
judge held that the claimant was an experienced arborist who was generally careful for his own safety and that of his employees. Whilst he had not previously hired that type of platform, he was knowledgeable about the principles behind its operation. Further, on the day of the accident
Civil procedure/expert evidence The Jackson reforms reasserted the need for judges to control expert witness evidence. In Rengasamy v Homebase Ltd [Lawtel 26/01/2015] the judge appears to have been overzealous. Even so, the appeal court placed restrictions on the time allowed at the trial for oral expert evidence. The defendant appealed against the judge’s decision to refuse permission for the parties’ engineering experts to give oral evidence at the trial of a personal injury claim brought by the claimant, and it sought an extension of a trial estimate from two days to three days. The claimant had fallen off a ladder which had been purchased from the defendant. He claimed damages for personal injuries arising from the defendant’s breach of the implied term as to satisfactory quality under S14(2) Sale of Goods Act 1979. Both parties instructed engineers to assess the ladder and they drafted a joint statement. They agreed that the claimant’s injuries were consistent with either the ladder collapsing with him on it, or him falling off the ladder with the ladder then falling to the ground and him landing on it, but disagreed as to which scenario was more likely. If the ladder had collapsed then the issue was whether the ladder was of a satisfactory quality. The claim was in the region of £31,000.
‘Without hearing oral evidence the court would not have the opportunity to see which of the experts’ evidence was more reliable.’ Allowing the defendant’s appeal in part, the High Court judge held that the court fully supported the judge’s attempts to address proportionality in terms of the time and costs of the trial in the interests of both parties. However, the parties had already proceeded to an exchange of experts’ reports to allow the court to assess them and had embarked on a process that allowed them to adduce expert evidence at trial. That evidence made a key contribution and the experts differed. Without hearing oral evidence the court would not have the opportunity to see which of the experts’ evidence was more reliable. The court was not satisfied that, on the face of the judge’s reasoning, the way that the expert evidence could contribute to the case had been taken into
The defendant submitted that the judge had erred in refusing
account. The judge had been correct to attempt to control
permission to allow the experts to give oral evidence
the parties’ costs and the court’s time by keeping the trial
at trial and argued that a time estimate of three days
to a limit of two days. The only criticism was that she had
was appropriate. The claimant contended that the case
sought to achieve that by not allowing the parties to adduce
management decision was reasonable in the circumstances
expert oral evidence. The court agreed with the two-day
and did not exceed the generous ambit of the judge’s
estimate but made an order that the parties were required,
discretion and that the cost of extending the length of the
within seven days, to agree a trial timetable for two days
trial to three days was disproportionate given the value of
of court time, with a recommendation that the expert oral
the claim.
evidence was kept to a half-day limit. A second case under this heading is Ellison v University Hospitals of Morecombe Bay NHS Foundation Trust [Lawtel 28/01/2015], which shows the court applying the post Mitchell approach to the late service of evidence.
The claimant had received the defendant’s accommodation report in January 2015. The trial was due to start in the first week of February. The claimant applied to debar the defendant from relying on the report. The claimant’s case was that she and her family had been reasonable in their desire to be relocated from Cumbria to an area in South-
“It was especially troubling that the trial date would have to be put back”
West London, around Richmond, close to the father’s work
Allowing the claimant’s application, the High Court judge
and a specialist school for the claimant and her siblings.
held that the report was not simply updating the evidence
The defendant’s case was that there was no reason to
but had included new matters. The claimant was right to say
relocate and that even if the trial judge found that relocating
that a lot of work would have to be undertaken to address
to London was reasonable, there were suitable properties
the points raised. It was especially troubling that the trial
available elsewhere. In its counter-schedule of June 2014,
date would have to be put back. Further, the defendant
the defendant contended that the Richmond area was
had not applied for permission to use the report. It was
expensive and that there was cheaper accommodation
not appropriate to determine whether it was a relief from
elsewhere, and that the claimant had failed to mitigate loss.
sanctions case, but in any event the approach in Mitchell
It reserved the right to look at alternative proposals. The
was highly material. It was not a trivial matter. The defendant
defendant’s January expert report summarised a range of
had the onus of establishing that the claimant had failed to
properties in different areas within a one-hour commute
mitigate losses. It had taken the view for at least six months
of central London. The claimant objected to the report on
that if the claimant was to be relocated to London the search
the basis that although the addresses were a reasonable
for accommodation should go beyond the Richmond area,
commute, other factors such as a suitable school had been
but it was not until the eleventh hour that it put in concrete
ignored.
its evidential case. The claimant’s case had always been
The claimant submitted that as it was only a week until the trial start date, the trial would have to be adjourned; and her expert would have to undertake a lot of work in examining the suitability of the properties put forward
to be relocated. There had to be compliance with court orders, and there was a need to avoid delaying the trial. The circumstances of the case militated against allowing the trust to admit the evidence.
by the defendant. She further argued that the situation was analogous to an application to extend time, and that
Comment
the court should adopt the approach in Mitchell on relief
This case highlights that defendants who wish to challenge
from sanctions. The defendant submitted that the report was simply supplementary evidence and that its purpose was to provide details of alternative housing in London to assist the trial judge. It further submitted that its report was clearly foreshadowed by the counter-schedule and that the claimant could address the issues within a week and at the worst, the trial would only have to be adjourned for a short period.
a claimant’s move to a new property, in a different area, must take the initiative and locate and offer what they consider to be a suitable option.
Part 36 As Uwug Ltd and another v Ball (2015) EWHC 74 (IPEC) illustrates, arguments continue over the application of Part 36. In an intellectual property claim the defendant had made a Part 36 offer, giving no details of how he had arrived at the sum which he proposed to pay in damages. The claimant did not accept the offer. The defendant withdrew it and the relevant period expired, under CPR 36.3(1)(c). The defendant subsequently made a fresh Part 36 offer, in the same terms as his first one, giving no further reasoning. The claimant rejected it. The claimant was ultimately awarded damages which were substantially less advantageous than those offered by the defendant.
“…it did not follow that the defendant’s offer had to be treated as if it had never happened.” Under CPR 36(14)(6)(a), the usual consequences of a claimant failing to obtain a judgment more advantageous than the defendant’s Part 36 offer did not apply where the offer had been withdrawn. However, it did not follow that the defendant’s offer had to be treated as if it had never happened. There was no obligation on a party making a Part
The defendant argued that the court had a wide discretion
36 offer to spell out his reasons, but if he plucked a figure
in relation to costs, relying on observations made in Bolton
from the air that might count against him in relation to costs
(1995). The claimant argued that the defendant’s Part 36
if the opposing party was left unreasonably in the dark as to
offers should be disregarded because they contained no
how the offer was calculated. The extent to which a party’s
information to allow him to assess whether to accept them
position was disadvantaged by ignorance of the rationale
and the defendant’s status as a litigant in person should not
behind a Part 36 offer would depend on the facts of the
affect that. He also contended that the defendant’s refusal
case. In the instant case, the claimant had been in a position
to enter into mediation should weigh in the balance against
to assess how the defendant’s offer matched up with the
him.
damages and interest which he would be likely to receive,
The judge held that there always had to be sufficient flexibility of approach in assessing costs, to achieve the overriding objective of dealing with cases justly. However, the court also had to observe the guidelines in the CPR, particularly CPR 36.14. The observations in Bolton warned against the unreflective application of a familiar approach to assessing costs without sufficient regard to the justice of the case on the particular facts, but there was no suggestion that the court had unshackled freedom in the assessment of costs.
on various alternative views as to the outcome, at trial. However, the defendant’s first offer should not be treated if it had never been withdrawn. Litigants in person, like all litigants, had to live with the consequences of ill-advised procedural decisions. On the other hand, the claimant should have accepted the offer. Further, the defendant’s refusal to enter into mediation should not count against him as it would have been likely to have been unsuccessful and to have led to a waste of time and expenditure. The claimant should have his costs up to the date of expiry of the first Part 36 offer, but no further. The defendant would have his costs from the date of the second Part 36 offer.
Costs/conditional fee agreements In Legal Watch: Personal Injury 6 we reported the decision
case, where the solicitors had foreseen that their client
in the first appeal in Blankley (Protected Party) v Central
might lose capacity again.
Manchester & Manchester Children’s University NHS Trust. The defendant’s appeal against that decision has now been refused by the Court of Appeal and is reported at (2015) EWCA Civ 18. The claimant had suffered brain damage after undergoing surgery at the defendant’s hospital. As she did not have capacity, she had acted through a litigation friend to bring a clinical negligence action. Liability was agreed with damages to be assessed. The claimant regained capacity and entered into a conditional fee agreement to cover the assessment of quantum. The agreement stated that she was responsible for giving her solicitors sufficient instruction to enable them to perform their work, and that, if the agreement ended early, the solicitors reserved the right to require her to pay their charges and any counsels’ fees. Two years later, the
“(The claimant’s)… supervening incapacity had not rendered the retainer incapable of performance; it had only given rise to a short delay pending appointment of a receiver”
claimant lost capacity. Her solicitor was appointed as her
The Court of Appeal held that the judge had been right to
receiver and acted as her litigation friend. The proceedings
decide that the claimant’s incapacity did not terminate the
were settled three years later. The solicitors submitted their
conditional fee agreement. There was much to be said for
bill of costs to the defendant. The defendant’s case was that
re-examining the Yonge principle and related authorities:
the conditional fee agreement had automatically terminated
it was potentially unfair and unsatisfactory for a client’s
as a result of the claimant’s loss of capacity, leaving her
supervening incapacity automatically to terminate a
solicitors without a retainer. A costs judge accepted that
solicitor’s authority to act on their behalf, thereby exposing
argument. The court below allowed the claimant’s appeal,
the solicitors to risk of liability to other parties for breach
finding that her supervening incapacity had not frustrated
of warranty of authority at a time when they were unaware
or otherwise terminated the conditional fee agreement,
of their client’s incapacity, and depriving them of authority
especially as it had been entered into in the knowledge that
to protect their client’s position after they became aware
she had fluctuating capacity.
of it. However, the present appeal was narrowly focused
The defendant submitted that the decision was contrary to the principle in Yonge (1910) that supervening incapacity terminated an agent’s authority. It also asserted that a solicitors’ retainer was a personal contract in which the duty to give instructions could only be discharged personally. The claimant doubted the correctness of Yonge, and maintained that even if a client had a general duty to provide instructions personally, that duty could not have been intended in this
and did not require such an examination. The issue was whether the conditional fee agreement had been terminated by frustration when the claimant became unable to give instructions, causing the retainer to become incapable of performance. That question could be resolved on the assumption that Yonge remained good law. The fact that a solicitor’s retainer was a personal contract did not mean that instructions generally had to be given personally. In any event, whatever the general position, the parties to this case
must have contemplated that the claimant might become
the defendant’s appeal holding that the fact that the CFA
incapacitated again and that instructions would need to be
might have ceased to operate, if the insurer agreed that the
given on her behalf. Therefore her supervening incapacity
solicitors could act, did not prevent it being legally effective
had not rendered the retainer incapable of performance; it
when signed.
had only given rise to a short delay pending appointment of a receiver. A further reason why the frustration allegation had to fail was that, even if the respondent had been under a duty to provide personal instructions, the situation was covered by the terms of the conditional fee agreement, which entitled the solicitors to end the contract and require the claimant to pay their basic fees. A CFA also came under scrutiny in Cox v Woodlands Manor Care Home Ltd [Lawtel 28/01/2015] The appellant/claimant had been injured at work and sought to claim against the respondent/defendant, her employer. She had been introduced to a firm of solicitors and wanted them to act for her, but had legal expenses cover as part of her household insurance. She was advised that the legal expenses insurer was likely to require her to use a panel solicitor up to the issue of proceedings. She signed a CFA but also made a claim on the insurance. A solicitor from the firm visited the claimant’s home where she signed the CFA, because her injuries made that more convenient than visiting the solicitors’ office. The insurer confirmed that she would have to use a panel solicitor until proceedings were issued. Before that confirmation the solicitors had sent a pre-action protocol letter and attended on a witness. The claim was settled for £100,000 and costs on the standard basis. The defendant argued that the claimant was not liable to pay her solicitors since the CFA was unenforceable under the Cancellation of Contracts made in a Consumer’s Home or Place of Work etc. Regulations 2008. The CFA was a contract for the supply of services within Regulation 5 and the claimant was a consumer and the solicitors a trader. The defendant contended that the CFA was made “during a visit by the trader to the [claimant’s] home” because, as was admitted, no notice of the right to cancel had been served under Regulation 7. A costs judge held that the CFA had not been “made” when it was signed because there was no intention to create legal relations until the position with the legal expenses insurer had been confirmed. A judge allowed
“…the CFA had been “made” for the purposes of the regulations when it had been signed” Dismissing the claimant’s appeal, the Court of Appeal held that the judge was right that the CFA had been “made” for the purposes of the regulations when it had been signed. It was wrong to say that there had been no intention to create legal relations. It was clear that the claimant was legally committed. The CFA was subject to a condition dependent on the possibility of funding from the legal expenses insurer. It was possible that the condition was that the CFA would not take effect until the insurance position was clarified, but it was more likely and more consistent with what had happened that the condition was that the CFA would terminate if the insurer gave its consent to the solicitors acting. The claimant had no control over the fulfilment of either condition and no further action by her was necessary. Even if the obligations were not immediate, the agreement was made when signed. That was correct as a matter of law and also consistent with the policy behind the regulations. That was to protect consumers in their homes from pressure that operated at the moment of decision. That purpose would be rendered more difficult to achieve if the contract was found not to be made at that point. The costs judge’s decision was not one of mixed fact and law with which the judge should not have interfered on appeal. There was no dispute as to the primary facts including the parties’ intentions. The question of when the claimant was legally committed was one of law to which there could only be one answer. The judge had been entitled and obliged to reverse the costs judge’s decision and hold that the CFA was unenforceable.
From within Greenwoods Successful defence of a multi party ‘slam on’ claim by employing telematics and accelerometer data. PB and others v SJ and others (The County Court at Manchester 16 January 2015).
This contrasted with the view formed by the judge about the credibility of the claimants and in particular the second and seventh claimants. He noted that the second claimant clearly had a much better grasp of English than he sought to convey in the witness box and he came to the conclusion that he was lying to the court about his knowledge and
This claim involved seven claimants: a driver and six
understanding and abilities to communicate in English. The
passengers involved in a road traffic accident on 5 January
seventh claimant spoke English without the benefit of an
2013. All claimed damages for personal injury and the first
interpreter and was the last claimant to give evidence. It
claimant claimed special damages for credit hire and vehicle
appeared to the judge that in giving evidence last she was
storage.
attempting to infill the inconsistencies that had been raised
The claimants’ case was that their stationary or near
in cross-examination of previous claimants.
stationary motor vehicle was positioned in the right hand
A number of the claimants had indicated they had lost
lane on Oldham Road and was attempting to turn right into
time from work as a result of the accident but produced
Grafton Street when the defendant negligently drove her car
no documentary evidence despite an allegation of fraud
into the rear of the their vehicle.
against them.
The claims were defended on the basis that the driver of
The claimants’ vehicle had been fitted with a ‘black box’,
the claimants’ vehicle deliberately induced a “slam on” style
which vitally provided accelerometer data. When that had
collision, in the left hand lane of the road, in order for them
been interrogated, none of the claimants were able to
to bring dishonest insurance claims. It was also alleged that
explain why the vehicle had been stationary in the road
two of the claimants were not present at all (although on this
some 30 minutes or so before the accident. This was also
point the judge found against the defendant).
inconsistent with the claimants’ suggestion that they had set
The key to the success of this defence was the evidence of an independent witness. The judge found him to be credible and accepted his evidence that there was no reason whatsoever why the motor vehicle occupied by the claimants had to brake suddenly other than to allow the car behind it to crash into it and thereby allow the vehicle occupants to pursue personal injury claims. The witness was a driver and was adamant that both vehicles were in the left hand lane as opposed to the right-hand side of the road as suggested by the claimants.
off from the first and seventh claimants’ home and that they were going to meet friends at a pub and yet none of them had obtained details of where to meet or even better the name of the pub. The data also revealed that the claimants had travelled up and down Oldham Road on no fewer than two occasions in order to find what started off as friends but then became a friend and were passing the accident scene for a third time when the incident occurred. None of the claimants mentioned this in their witness statements and no explanation was given for these omissions which only became relevant once the black box data from the
He was also in a prime position to see the claimants vehicle
claimants’ vehicle had been obtained and its detailed
park up and to see the driver and a passenger swap
movements were known.
positions, although the judge held that he was mistaken that there were only five people in the vehicle.
The judge’s interpretation of the data from the ‘black box’ was that the claimants’ vehicle decelerated from 24 to
27 miles an hour to stationary or very nearly stationary in approximately two seconds. That amounted not to slow or gradual braking but sudden braking that causes a vehicle to slow down suddenly albeit not instantaneously. The claimants’ witness as to the interpretation of the ‘black box’ data was an employee of the Part 20 defendant, which had
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settled the defendant’s claim prior to the commencement of the trial. At paragraph 10 of his witness statement he had
Weekly:
referred to a gradual braking movement but under cross-
• Legal Watch: Personal Injury
examination he stated that what he had meant was that the brake pad had been applied to the drum of the wheel at a
Monthly:
constant pressure, causing a constant deceleration.
• Legal Watch: Property Risks & Coverage
The judge accepted that all seven claimants on the balance of probabilities suffered some injury but given the various
Quarterly:
inconsistencies in their hospital entries and the medical
• Legal Watch: Counter Fraud
reports these injuries were relatively minor. He was also
• Legal Watch: Disease
satisfied that on the balance of probabilities this was a slam-on collision deliberately contrived in order that seven
• Legal Watch: Health & Safety
claimants could pursue a claim for personal injuries arising
• Legal Watch: Marine
out of the accident. If damages had been awarded to the claimants then an
• Legal Watch: Professional Indemnity
appropriate award would have been £750 each but he dismissed all of the claims, including the claim for credit hire and storage and recovery charges. The miscellaneous expenses claims were abandoned prior to the trial commencing. In the light of those findings an award of indemnity costs was made against all seven claimants in favour of the defendant and repayment of the interim payment. For further details please contact: Karen Mann T: 020 7462 3469
Contact Us For more information please contact: Geoff Owen Learning & Development Consultant T: 01908 298 216 E: gro@greenwoods-solicitors.com
E: km@greenwoods-solicitors.com
www.greenwoods-solicitors.co.uk
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The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 12 Dingwall Road, Croydon, CR0 2NA. Parabis Law LLP is authorised and regulated by the SRA.