Legal Watch: Personal Injury 6th February 2015 Issue: 050
Public liability/landlord & tenant The case of Edwards v Kumarasamy (2015) EWCA Civ 20 considers the liability of a landlord for personal injury sustained by a tenant when using a communal pathway, rather than as the result of a defect within the demised premises. The claimant/appellant rented a second-floor flat under an assured shorthold tenancy. The defendant/respondent was not the owner of the block of flats but had a long lease of the flat. The accident occurred when the claimant was taking rubbish out from his flat. He tripped over an uneven paving stone in the pathway between the front door of the block and
In This Issue: • Public liability/landlord & tenant • Public liability • Damages • From within Greenwoods
• From within Plexus Scotland
the communal bins. He had not given notice of any defect to the defendant before the accident and the defendant had given no notice to his own landlord. A deputy district judge found that the paved area was part of the structure or exterior of the flat and awarded the claimant damages. On appeal, a judge held that the defendant was not liable under the extended covenant implied into the tenancy by S11(1A) Landlord and Tenant Act 1985 because it was a precondition to liability that notice of the defect had to be given.
“A landlord’s liability on his covenant to repair only required notice where the defect was within the demised property itself” Allowing the claimant’s appeal, the Court of Appeal held that whether something was part of the structure and exterior of a house depended on the facts. On the basis of the deputy district judge’s findings of fact, the paved area was short and part of the essential means of access to the front hall in which
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
the defendant had an estate or interest and it could properly be described as the exterior of the front hall. In principle, the extended covenant applied. The general rule was that a covenant to keep premises in repair obliged the covenantor to keep them in repair at all times, so that there was a breach of the obligation as soon as a defect occurred. There was an exception where the obligation was the landlord’s and the defect occurred in the demised premises itself, in which case he was only in breach of his obligation when he had information about the existence of the defect such as would put him on inquiry as to whether repair works were needed and he had failed to carry out the necessary works with reasonable expedition thereafter. Where a defect occurred in the external part of the building that was not demised to the tenant, the landlord was liable even though he had no notice of the disrepair. The critical distinction, under common law, was between that which was demised and that which was not. Where, as in the instant case, there had been an express grant of an easement the grant carried with it an ancillary right on the part of the dominant owner to carry out repairs on the servient owner’s land in order to make the easement effective. A landlord’s liability on his covenant to repair only required notice where the defect was within the demised property itself. Parliament had not included any requirement of notice. With implied terms, necessity rather than mere reasonableness was the touchstone. The court disagreed with the authors’ opinion in Dowding & Reynolds (5th ed. para 20-37) that notice was required even in the case of extended covenants.
Public liability The case of Ford v Silverstone [Lawtel 30/01/2015] explores
meticulous; he would not have spent five minutes starting
the liability of an individual for injuries to a friend voluntarily
the chipper using the wrong key. The evidence was also
assisting with gardening.
that they were friends and that they enjoyed working on
The claimant, a friend of the defendant, had been helping him renovate his newly-bought property. The claimant cleared branches from the grounds and the defendant worked a wood chipper. On one occasion the claimant was alone and attempted to unblock the chipper by putting his left hand inside it while the engine was running and three fingers were severed. The claimant’s case was that he had seen the defendant do the same thing when the machine was blocked. He claimed that the defendant had told him that the key to the wood chipper was lost, but that the key to the lawnmower could be used on it instead. He said that because the lawnmower key took five minutes to start the chipper that the defendant did not switch the chipper off when removing blockages. The defendant’s case was that he had never lost the key to the chipper, which was kept in a safe, and that he had never used the lawnmower key to start it, or even knew that it worked. The defendant also claimed that he would never have placed his hand in the machine with the engine running. The claimant submitted that the defendant owed him a duty of care.
“In no sense could it be said that the claimant was an employee” Rejecting the claim, the deputy High Court judge held that the basis of the claim, namely that the claimant had been shown how to unblock the chipper with the engine running, was not borne out on the evidence. The court was not persuaded by the claimant’s assertions regarding the key to the chipper. The key had not been lost and was either in use or in the safe. The defendant had appeared tidy and
the property together. In no sense could it be said that the claimant was an employee. If the claimant had chosen not to work that day that was a choice he was free to make. His decision to resume branch clearance had been made without discussion with the defendant. He had decided to take the chipper out from behind the defendant’s car, which would have been a surprise to the defendant, as the claimant could not drive. When the chipper had become blocked, he had decided to do something highly dangerous which he had not seen the defendant doing. The machine carried warnings about inserting hands without switching the power off. The defendant did not owe the claimant a duty of care. Such a duty might have arisen if the court had accepted the claimant’s version of events, but even then the court would have found a significant degree of contributory negligence; on the day of the accident the claimant had been extremely reckless.
Damages
assessed at £275,000, inclusive of the 10% uplift.
“The judge found the decision in Croke to be inconsistent with the principle of full compensation (but she was bound by it)”
Past gratuitous care had been agreed at the NJC aggregate
A claim was made for earnings during the ‘lost years’ from
rate but the claimant resisted the 25% discount on the basis
47 to 70 and for loss of pension from age 70. The judge
that her mother gave up a highly paid job and then went
would have allowed £32,694.51 and £12,000 respectively
back to working on a part-time basis in order to care for
as the bases for such awards but found that she could not
the claimant and coordinate her complex arrangements
do so because she was bound by Croke v Wiseman (1982).
for care. In addition, the actual care rates for London were
The rationale for the decision in Croke was that the court
higher than the aggregate NJC rate. The judge applied
should not speculate as to whether a very young claimant
the discount, finding that the arguments relied on by the
might in future have had children who would require support.
claimant did not make the case so unusual as to mean there
The judge found the decision in Croke to be inconsistent
should be no discount.
with the principle of full compensation. The defendant’s
The claimant’s mother had been her case manager until a
negligence had reduced the claimant’s life expectancy so
professional case manager had been appointed. The judge
that she would not earn the salary and pension which, on
allowed this also at the NJC aggregate rate less 25%.
the balance of probabilities, she would have earned. Only
Totham (Protected Party) v King’s College Hospital NHS Trust (2015) EWHC 97 (QB) covers a number of points of interest to those handling high-value personal injury claims. The claimant, aged seven at the date of the hearing, claimed damages for serious brain injuries sustained during her birth, resulting in cerebral palsy. Liability was not in dispute. Many heads of damage were agreed but a number were in issue and were assessed by the High Court judge. Damages for pain, suffering and loss of amenity were
The defendant argued that past expenditure on professional
the Supreme Court can resolve this issue.
case management had been excessive. However, the judge
A lump sum for childcare costs was refused on the basis
was not prepared to criticise what had been done by the
that it was highly unlikely that the claimant would now have
claimant’s mother on the basis she acted reasonably in all
a child.
the circumstances. The claimant’s life expectancy was reduced to age 47. But for the accident her retirement age would have been 70 and her life expectancy to 93.6. She was awarded £3,000 p.a. for part-time earnings while in full time education (16 to 21). The judge then awarded a periodical payment for net earnings of £32,694.51 from age 21 to 47. From this was deducted £2,000 p.a. for the cost of travelling to work.
From within Greenwoods Claimants come unstuck in induced accident claims SA and JF v SS (Guildford County Court 7/01/2015) This case arose out of a road traffic accident on 26/07/2012. It was the claimants’ case that the defendant had simply driven into the rear of their vehicle, which was stationary waiting to turn right. However, our client’s insured disputed the claims on the basis that the incident was deliberately induced. The insured’s case was that the accident occurred after he had passed the junction and that a third party (lead) vehicle had braked sharply for no reason causing the claimant to brake and the defendant to hit the rear of the claimants’ vehicle. Bizarrely the lead vehicle stopped even though it had not been involved in the collision. When exchanging details it became apparent to the insured that the occupants of the lead vehicle knew the claimants.
On the second day, the second claimant discontinued his claim, after cross examination, with a view to avoiding a positive finding of fraud, having also admitted in the witness box to lying in his statement and to his medico-legal expert. This avoided the need for our client’s insured to give evidence because the judge was more than satisfied that the claimants had been shown to have lied and exaggerated their injuries, and misled the court about previous accidents, such that an award of exemplary damages should be made. The judge indicated that, if the claims had not been discontinued, he would have found positively that the claimants had deliberately induced the accident. He also commented that he had never encountered claimants who had needed to admit so many times that they had lied. However, he declined without a formal application from our
A defence was filed pleading fraud. Database searches
client to refer the matter to the Attorney General of his own
showed both claimants had a claims history and were linked
volition (pursuant to CPR 81.18(5)) because the claimants
to other accidents that Greenwoods had dealt with, where
were to be punished heavily in costs and damages.
fraud had also been pleaded. The claimants were forced to disclose copies of all pleadings, engineering evidence and medical reports from previous accidents occurring in the last four years. There were multiple inconsistencies in the claimants’ reporting of injuries to the various medical experts. The matter came to trial and was listed for two days. Most of the first day was taken up with cross examination of the first claimant, who was forced repeatedly to admit that he had lied in his witness statement and/or to the majority of the medico-legal experts who had examined him in respect of his various claims. He ultimately discontinued his claim three quarters of the way through his evidence. However, somewhat surprisingly, he continued to give evidence on
The claimants were ordered to pay our client’s costs on the indemnity basis, as well as pay £3,750 each in exemplary damages (in addition to their share of the special damages claimed). The judge has also made provision for an application to be made for a wasted or non-party costs order against the claimants’ solicitors. However, he noted separately that he had only known a handful of such applications to succeed because of the difficultly proving both negligence/misconduct and causation (that the negligence or misconduct caused additional costs to be incurred), particularly where ultimately the claims failed because of the claimants’ dishonesty.
behalf of the second claimant because the second claimant
For further details please contact:
did not want to abandon his claim. This led to some almost
James Mansell
comical moments, with the first claimant refusing to answer questions at one point and very nearly provoking the judge to hold him in contempt of court.
T: 01908 298264 E: jcm@greenwoods-solicitors.com
From within Plexus Scotland Scottish Consultation on Costs and Funding of Civil Litigation In the light of previous consultations and the ongoing
Respondents to the consultation are asked to consider if
reforms in the civil justice system the Scottish Minister for
these are sufficient to discourage all unmeritorious cases
Justice has now published proposals for funding claims in
and what impact the reforms may have on the volume of
the future. A consultation on these latest proposals is open
claims and other resources, including the courts.
until 24 April 2015.
Counsels’ fees are also included in the consultation as part
It is intended to maintain Legal Aid in Scotland but to make
of the attempt to control the cost of litigation. This would
it a fund of last resort. To that end the existing Speculative
see the introduction of a table of fees for counsel in the
Fee Agreements (no win/no fee arrangements) will be
Court of Session, to include those for solicitor advocates.
encouraged but with the introduction of a cap on the success fee (based on the costs recovered) that can be charged by the pursuer’s solicitor. In addition it is proposed that it should be permissible for solicitors to enter into damages based agreements (DBA). Part of the consultation is whether a cap should also be placed on what the solicitor should recover under a DBA. In funding arrangements in England and Wales, future losses are ring-fenced from the calculation of the success fee. It is not suggested that there should be an identical provision in Scotland. Claims management companies come under the spotlight. They already offer DBAs. There is currently no intention to regulate them, as in England and Wales, but they would become subject to the same statutory controls as the legal profession as regards DBAs. In the light of the relatively light controls over DBAs a code of good practice is proposed
Scotland has been lacking any formal procedure for dealing with multi-party claims. Several options are canvassed for the future: a case management procedure (similar to a group litigation order in England and Wales); a class action procedure, with a single claimant bringing a claim on behalf of a larger group; and a full class action procedure which would allow interested parties to join a class action. While it is anticipated that the proposals discussed above will reduce disputes about legal expenses, the opportunity is being taken to review the post of the Auditor of the Court of Session, who is currently the only costs judge in the Court of Session. The government would also like to see legal representatives made personally liable for expenses occasioned by their own misconduct, something already possible south of the border.
to ensure that claimants are fully advised of the terms and
Legal Aid is currently available in Scotland only for
conditions of an agreement and of their rights. There should
individuals. It is proposed that it should also be available
also be greater transparency about the existence of funding
to financially eligible legal entities such as companies and
arrangements.
partnerships, but only as a fund of last resort.
To encourage further the use of speculative fee agreements
So the process of change continues and we will keep you
and DBAs it is suggested that qualified one way costs
up to date on all developments.
shifting (QOCS) should be introduced in personal injury and clinical negligence claims. There would be similar safeguards as for England and Wales in the event of fraud or unreasonable behaviour as defined in the Wednesbury case.
For further details please contact: Cameron McNaught T: 0844 245 4802 E: Cameron.mcnaught@plexuslaw.co.uk
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Contact Us For more information please contact: Geoff Owen Learning & Development Consultant T: 01908 298 216 E: gro@greenwoods-solicitors.com
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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.