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Contents... A Forward to the 2014 Editions of Crime Scribe................................................. 6 1

December 2014.................................................................................................................. 16

July 2015................................................................................................................................... 102

The Claims Portal Update-Background Searches.............................................................. 102

The Medco Update................................................................................................................ 103

CICA......................................................................................................................................... 16

CPR Case Law Roundup....................................................................................................... 104

Clinical Negligence................................................................................................................ 20

Funding and CFAS.................................................................................................................. 105

Damages................................................................................................................................. 24

Costs: PART 36, Partial Success and Entitlement?............................................................... 106

Limitation................................................................................................................................. 26

Practitioner News-NIHL is the New Whiplash!...................................................................... 106

Clinical Negligence................................................................................................................ 28

Holiday Claims........................................................................................................................ 28

August 2015............................................................................................................................ 108

January 2015......................................................................................................................... 32

Coventry v Lawrence: A Sigh of Relief for Practitioners as the Supreme

Court Endorses the Old CFA Rules........................................................................................ 108

Secondary Victims: Definition of “Horrifying”...................................................................... 109

Clinical Negligence................................................................................................................ 32

Success Fees........................................................................................................................... 37

Appeal Delays and New Guidance.................................................................................... 110

Employers Liability................................................................................................................... 38

Claim Forms Are For Service: Another Reminder................................................................ 110

Court Bundles: Another Warning from Jackson LJ.............................................................. 111

THE NEW UNINSURED DRIVERS MIB AGREEMENT.................................................................. 112

February 2015....................................................................................................................... 40

Clinical Negligence................................................................................................................ 40

RTA............................................................................................................................................ 41

10 September 2015................................................................................................................. 114

Vicarious Liability..................................................................................................................... 42

Negligence.............................................................................................................................. 43

Children and Additional Liabilities: A Red Card for Practitioners?................................... 115

Quantum................................................................................................................................. 46

Case Law Update.................................................................................................................. 117

Medco: There May be Trouble Ahead................................................................................ 118

Clinical Negligence................................................................................................................ 48

March 2015............................................................................................................................. 50

QOCS Protection: No Reasonable Cause of Action.......................................................... 114

11 October 2015........................................................................................................................ 120

Employers Liability................................................................................................................... 50

Social Media and Litigation.................................................................................................. 120

Protection from Harrassment................................................................................................. 53

Relief from Sanctions: Recent Cases.................................................................................... 120

Clinical Negligence................................................................................................................ 55

Fundamentally Dishonest and Exemplary Damages......................................................... 121

RTA............................................................................................................................................ 59

Children and Motorists: Guidance on Contributory Negligence..................................... 122

Inquests are Not Civil or Criminal Trials................................................................................. 123

Witness Evidence, Letters before Action and Pleadings................................................... 124

April 2015.................................................................................................................................. 50

Clinical Negligence................................................................................................................ 62

Contributory Negligence....................................................................................................... 62

12 November 2015.................................................................................................................. 125

CICA-Quantum....................................................................................................................... 64

CPR 36: OFFER LETTERS........................................................................................................... 126

RTA- MIB.................................................................................................................................... 66

PART 36 OFFER BY CLAIMANT ATTRACTS INDEMNITY COSTS ONLY FROM THE DATE

Quantum................................................................................................................................. 68

OF EXPIRY OF THE OFFER........................................................................................................ 127

Costs and Part 36.................................................................................................................... 70

ALLOCATION AND FIXED RECOVERABLE COSTS UNDER CPR 45........................................ 127

Indemnity or Contribution?................................................................................................... 71

FAILURE TO GIVE DISCLOSURE IN RELATION TO LATER ACCIDENT: RELIEF FROM

May 2015.................................................................................................................................. 74

Jurisdiction over Belgian defendants................................................................................... 74

SANCTIONS REFUSED.............................................................................................................. 128

ASSIGNMENT AND CFA’S: A SETBACK FOR LAW FIRMS?..................................................... 129

CLAIMS PORTAL NEWS............................................................................................................ 120

Limitation................................................................................................................................. 76

Professional Negligence........................................................................................................ 79

Interim Payments.................................................................................................................... 81

Ex-Turpi..................................................................................................................................... 84

June 2015................................................................................................................................. 90

RTA Contributory Negligence................................................................................................ 92

Clinical Negligence................................................................................................................ 98

Negligence and Contributory Negligence......................................................................... 100

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A Forward to the 2015 Editions of Personal Injury Scribe

Hello and welcome to this foreword to the 2015 yearbook of the Personal Injury Scribe. I took over this monthly update, half way through the year from Nicky Carter, who had done a splendid job in summarising key developments in the field of personal injury law. When I was first asked to write a monthly review, I thought that it might be difficult to find new developments to write about every month. However, that has not proved to be the case. It always amazes me how many liability cases are reported and how procedural and cost developments continue to affect practitioners as the post Jackson landscape is being mapped out by the judiciary. I do hope that you have enjoyed reading them, both for their legal content and for my comments. It was a very busy year with, as usual, important cases on liability across the range of PI and Clinical Negligence cases, CPR36, proportionality issues, fixed fees, funding and evidence. Nicky Carter started the year off with an employer liability focus, covering two High court cases. Firstly, Dusek and others v Stormharbour Securities LLP [2015] EWHC 37 a fatal helicopter crash, involving a pilot who was employed on a project by the defendant employer. The court held that the personal safety of their employee would be entirely dependent on the safe operation and performance of that chartered helicopter flight. This required the defendant to make at least some form of inquiry into the safety of the trip and carry out some form of risk assessment. In Broni and others v Ministry of Defence [2015] EWHC 66, there was an appeal by three former servicemen who had been injured in service and where there was dispute about whether the fixed success fee regime applied. It was held that the fixed success fee regime in (pre 1 April 2013) CPR 45, s IV did not apply to claims brought by members of the armed forces in respect of injuries suffered at work. We covered in February an important decision from the Court of Appeal on vicarious liability. In Graham v Commercial Bodyworks Ltd [2015] EWCA Civ 47 the Court of Appeal seems to have returned to the ‘older’ case law analysis of what amounts to ‘in the course of employment’ at least in respect of actual employer-employee cases. In this case the claimant’s case failed as the act of negligence by the coemployee ( fellow employee lit up a cigarette as a prank which then set fire to the 6

claimants overalls) was found not to have occurred in the ‘course of employment’ - the creation of the risk was “not sufficient to impose liability. The real cause of Mr Graham’s injuries was not was the no doubt frolicsome but reckless conduct of Mr Wilkinson which cannot be said to have occurred in the course of his employment. Note: this case may now be decided differently in view of the two co-adjoined appeals from the Supreme Court ( March 2016 PI Scribe). The March edition featured the landmark clinical negligence case on informed consent, Montgomery v Lanarkshire Health Board[2015] All ER (D) 113 (Mar) [2015] UKSC 11, [2015] All ER (D) 113. The Supreme court came to the conclusion that the test applied in the case of Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital ([1985] 1 All ER 643 ) was profoundly unsatisfactory. Since Sidaway, the paradigm of the doctor-patient relationship implicit in that case had ceased to reflect the reality and complexity of the way that healthcare services were provided, or the way in which the providers and recipients of such services viewed their relationship. Particularly significant was that patients were widely regarded as persons holding rights, rather than passive recipients of the care of the medical profession. It was also relevant that it had become far easier, and more common, for members of the public to obtain information about symptoms, investigations, treatment options, risks and side-effects through media. The Court said it would be a mistake to view patients as uninformed, incapable of understanding medical matters, or wholly dependent on a flow of information from doctors. This case is more in line with the US courts and a rejection of the old “doctor knows best” approach which has characterised the NHS in the past. We also have in March an important Court of Appeal case which is a must read for those interested in the connection between risk assessments and breaches. In West Sussex County Council v Fuller [2015] All ER (D) 140 (Mar)[2015] EWCA Civ 189 the claimant was injured at work when she lost her footing when going up the stairs carrying post to different offices within the Council building. The trial judge found that she had simply misjudged her footing but was persuaded that the law “compelled” him to find for the claimant under reg 3 of the Management of Health and Safety at Work Regulations 1999, SI 1999/3242, and reg 4 of the Manual Handling Operations Regulations 1992, SI 1992/2793. The Court of Appeal in a detailed judgment allowed the appeal as there was no link between the breach and accident. The fact that there was no risk assessment did not mean that the employers were automatically liable. Following in the footsteps of Montgomery, we have in April, Spencer v Hillingdon Hospital NHS Trust [ 2015] All ER (D) 172 (Apr). The principal issue before the court was the information that the Hospital should have provided to the claimant about the 8

signs and symptoms of deep vein thrombosis and pulmonary embolism including. In the light of the Montgomery decision, the test that the court should now apply was to be the Bolam test with the added gloss that the court should pay regard to what the ordinary sensible patient would expect to have been told. The court was satisfied that the claimant had not and could not reasonably have foreseen that by not seeking medical attention for his calf pain he would suffer deep vein thrombosis and a pulmonary embolism; matters that should have been in the mind of the staff of the hospital and communicated to the claimant. This case, and Montgomery, must have created ripples across the NHS in terms of new documentation and information to provide to patients when undertaking standard surgery or procedures. In the May edition (covered by me again later in the year) we had an important judgement from the Court of Appeal in Proctor v Raleys Solicitors [2015] EWCA Civ 400, who robustly rejected submissions that financial constraints and economic pressures require solicitors to ‘commoditise’ their advice. This was very clear warning to those practices that use standard letters and tick-box questionnaires as a substitute for clear client instructions.

The June PI Scribe featured a helpful High Court case dealing with quantum issues for a claimant who suffered catastrophic brain injury as a result of clinical negligence (admitted). HS v Lancashire Teaching Hospitals NHS Trust [2015] EWHC 1376 (QB) is of particular interest to practitioners as the court looked carefully at (i) amount recoverable for future care; (ii) the amount recoverable for case management; (iii) the sum recoverable to cover the additional cost of holidays caused by HS’s disability; and (iv) whether the cost of a hydrotherapy pool at HS’s home was recoverable. Mr Justice William Davis’s judgement is a tour de force and a great starting point for understanding the principles for assessing future care in complex case. July came with a useful insight into partial success and CPR 36. In Webb v Liverpool Women’s NHS Foundation Trust [2015] EWHC 449 (QB) the High Court took the view that because the claimant had alleged negligence on two bases (firstly that the obstetrician was negligent and secondly that the midwives were negligent) and had won only on the first it was right to make a costs order only in respect of the first basis. The claimant was as a result deprived of the Part 36 enhancements in respect of her costs relating to the second basis for the claim. In my August edition, I referred to the long awaited decision of the Supreme Court in Coventry v Lawrence [2015] UKSC 50. A 7 Justice panel held, in a majority judgment given by Lords Neuberger and Dyson, that the CFA regime was compatible with 10

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the Article 6 right to of fair access to a court. I also covered a short but helpful report on Lawtel of the decision of Stewart J in Dzekova -v- Thomas Eggar PPL (QBD 17/07/2015), which was a timely reminder during the holiday season of leaving matters to the last minute, with the wrong assumptions being made about dates and addresses; this is a must read for everyone! In my September slot, I referred to Wall -v- British Canoe Union, an unreported decision of HH Judge Lopez in the Birmingham County Court on the 30th July 2015, we have a salutary reminder to claimant practitioners that QOCS protection does not apply in a case where an action is struck out when a claimant has shown no reasonable grounds for bringing the proceeding. In the same edition, I mentioned a reported decision of a Birmingham District Judge, A & B -v- The Royal Mail Group [2015] EW Misc B24(CC)(14th August 2015), which is a scathing judgement of the practice of setting a 100% success fee and the purchase of a ATE premium in a simple RTA case for an infant. I have previously covered this issue elsewhere and whilst there are issues with this judgement, claimant firms need to urgently address their risk assessment policies. My October review included the practice of defendants and insurer regularly checking social media sites to see if there is anything that may call into question a partyâ&#x20AC;&#x2122;s or witnesses credibility. I referred to the judgment of Judge Seymour in Cirencester Friendly Society -v- Parkin [2015] EWHC 1750(QB) and how social media can have a real effect in civil cases, where a party effectively incriminates himself through a social media account. In the same edition, I also referred to the landmark Scottish case that was heard by the Supreme Court, Jackson-v-Murray, [2005] PIQRP 249 and deals directly the principles for the assessment of the proportions of liability of drivers of vehicles and pedestrians with whom they come into collision.

The November edition contained a worrying case for those who have had files transferred to them as part of a work in progress sale. In Denise Jones â&#x20AC;&#x201C;v- Spire Healthcare Limited [2015, Liverpool County Court, District Judge Jenkinson, who is the regional costs judge, found that various assignments had not been motivated in any way by particular trust and confidence in a particular fee earner, and therefore the purported assignment fell outside the exception established in an early authority meaning that such assignment was not possible and that what had actually occurred was a novation. The case has been appealed and no doubt will be watched various interested parties. In December, we had covered the shock announcement from George Osborne about a rise in the small claims court limit. Osborne said he would raise the small 12

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claims limit to £5,000 and abolish general damages for soft-tissue claims (which include whiplash injuries). Addressing the House of Commons, he said: “We’re going to bring forward reforms to the compensation culture around minor motor-accident injuries. This will remove over £1bn from the cost of providing motor insurance…so motorists see an average saving of £40-£50 per year off their insurance bills.” That concludes my brief review of last year and no doubt-if anything is certain in the world of personal injury - the year ahead will be as challenging as the last.

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Chapter 1 December 2014

CICA CP (A Child) v First-tier Tribunal (Criminal Injuries Compensation) (British Pregnancy Advisory Service/Birthrights and another intervening) [2014] EWCA Civ 1554 CP was born with foetal alcohol spectrum disorder (FASD), as a direct consequence of her mother’s excessive drinking while pregnant. It was asserted that the mother had been aware of the consequential danger of harm to her baby. An application for compensation was made on behalf of CP to the Criminal Injuries Compensation Authority (CICA). CICA rejected her application on the grounds that CP had not sustained an injury directly attributable to a crime of violence within the terms of the 2008 Criminal Injuries Compensation Scheme. On appeal, the First-Tier Tribunal (Criminal Injuries Compensation) held that CP was eligible for compensation. It found that CP had sustained injury which was directly attributable to a crime of violence, contrary to s 23 of the Offences Against the Person Act 1861, which made it an offence to unlawfully administer to any other person any poison or noxious thing, so as to inflict grievous bodily harm. CICA sought judicial review. The Upper Tribunal (Administrative Appeals Chamber) (the UT), in allowing the claim, determined that CP was not entitled to compensation. CP was not ‘any other person’ within the meaning of s 23 of the Act when she sustained injury whilst a foetus within her mother’s womb. Therefore, the mother could not have committed a criminal offence contrary to s 23 of the Act by drinking heavily whilst CP was a foetus. Further, the UT determined that the actus reus and the mens rea had to coincide in time, such that, even if the mother had had the necessary mens rea whilst CP was still a foetus, there was not another person and there was no actus reus at that time. CP appealed. CP submitted, First, that a foetus was capable of being any other person within the meaning of s 23 of the Act.

Secondly, and alternatively, a foetus became a ‘person’ when it was born. Since Attorney General’s Reference (No 3 of 1994)([1997] 3 All ER 936) (AG’s Reference), a case in which the defendant had stabbed a woman in the stomach, having known her to have been pregnant, had analysed the actus reus of manslaughter as a continuing act, which ran from the moment of the attack on the mother to the death of the child after birth, there had been no good reason why the criminal law should not equally protect a foetus from conduct which resulted from deliberate acts causing foreseeable harm, and which resulted in grievous bodily harm evident after birth. The appeal would be dismissed.

(1)

The first submission, as to the status of the foetus, could not be sustained.

The decision in AG’s Reference itself was fatal to it. Both Lord Mustill and

Lord Hope in that case had been in agreement that a foetus was not to

be regarded as another person (see [37], [39], [57], [58] of the judgment).

R v Tait [1989] 3 All ER 682 considered; A-G’s Reference (No 3 of 1994) [1997] 3 All ER 936 considered; R (on the application of Jones) v First-Tier Tribunal [2013] All ER (D) 103 (Apr) considered.

(2)

If the foetus was not another person at the time of the administration

of the noxious substance, then the offence could not be complete

at that point. The situation was distinct from the crime of manslaughter,

which required death in order to complete the crime. The reality was

that the harm had been done to the child whilst it was in utero. The fact

that if the child was born alive it would suffer the consequence of the

insult to it whilst in the womb did not mean that, after birth, it had

sustained damage by reason of the administration of the noxious

substance. The fact that deficits could not be identified until the child had

reached milestones in its life did not constitute fresh damage. It merely

meant that the damage had already been done, but had only then

become apparent (see [41]-[43], [57], [58] of the judgment).

That was fatal to CP’s contention, and the attempt to equate the offence under s 23 of the Act with the decision in AG’s Reference as to manslaughter could not succeed. The basis upon which the actus reus had been extended in a manslaughter case could not apply to the present case, since nothing equivalent to death had occurred to CP after her birth. Therefore, the UT had been correct to conclude that there had been no link between the administration of the alcohol and the born child for the purposes of s 23 of the Act (see [40], [44], [45], [57], [58] of the judgment). A-G’s Reference (No 3 of 1994) [1997] 3 All ER 936 distinguished. 18

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Clinical Negligence Wild and another v Southend University Hospital NHS Foundation Trust [2014] EWHC 4053 (QB) The claimants, Mr and Mrs Wild were expecting their first child in March 2009. Mrs Wild had been under the care of the antenatal clinic at a hospital managed by the defendant NHS Trust. At the expected due date for the birth of her child, Mrs Wild had a show of blood and rang the hospital who told her to come in. Accompanied by her husband, she did so. It was discovered that her baby had died in the womb. The baby was delivered still-born. The claimants would have named the child Matthew. Mr Wild discovered what had happened when the second midwife had failed to find a heartbeat and then when the doctor told him that he had a correct realisation that the baby had died. The claimants commenced proceedings against the defendant alleging negligence and claiming damages. The defendant admitted the claim in respect of Mrs Wild and, by a consent order had agreed to pay her the sum of £41,948.64 in settlement of her claim. Mr Wild, as a secondary victim, had also claimed damages for psychological injury. The factual case was based from the conclusions of the psychiatrists, on Mr Wild’s reaction to the death of Matthew in the womb and the delivery of a still-born baby on the day following his discovery of that fact. There was no issue as to the genuineness of the injury suffered by Mr Wild. It was contended that Mr Wild was entitled to compensation for his psychiatric injury as a secondary victim within the statements of principle in Alcock v Chief Constable of South Yorkshire Police[1991] 4 All ER 907 (Alcock). The defence denied the any entitlement to damages as a secondary victim and relied in particular on the statement of principle in Taylor v A. Novo (UK) Ltd [2014] All ER (D) 167 (Mar). One of the issues related to the identification of the primary victim. It was submitted by the defendant that a father could never succeed in a nervous shock case based upon the still-birth of his child. The claim would be dismissed.

(1)

As a matter of law there was no distinction between a child in the

womb and his mother. The mother was the primary victim. Even though

an alleged secondary victim’s shock-induced psychiatric illness might be

more to do with concern for the unborn child than for the mother,

nevertheless any shock was a consequence of the injury or threatened

injury to the mother in that her foetus had been damaged or destroyed by

the relevant negligent act (see [21], [22] of the judgment).

layout.indd 1 layout.indd 1 layout.indd 1

09/02/2016 11:47 09/02/2016 11:47 09/02/2016 11:47

Although Mr Wild could not, as a matter of law treat Matthew as the primary victim, for the purposes of the claim his potential for separate existence could not be ignored either on the facts or as matter of law. The circumstances that gave rise to the psychological injury related to the death of Matthew in the womb but, because he was considered in law part of his mother, Mrs Wild was properly described as the primary victim. Therefore it could not be accepted that Mr Wild could never succeed in an Alcock-type secondary victim claim in a still-birth case, if it was not accompanied by his witnessing at the same time the actual or threatened death or serious injury to the mother (see [21]-[23] of the judgment). Page v Smith (No 2) [1996] 3 All ER 272 considered; Froggatt v Chesterfield and North Derbyshire Royal Hospital NHS Trust [2002] All ER (D) 218 (Dec) doubted.

(2)

The control mechanisms in relation to secondary victims were usually put

under five heads;(i) a marital or parental relationship; (ii) the injury arose

from the sudden and unexpected shock to the claimantâ&#x20AC;&#x2122;s nervous system;

(iii) the claimant was either personally present at the scene of the

accident or was in the more or less immediate vicinity and witnessed

the aftermath shortly afterwards; (iv) the injury suffered arose from

witnessing the death of, extreme danger to, or injury and discomfort

suffered by the primary victim; (v) there was not only an element of

physical proximity to the event but a close temporal connection between

the event and the claimantâ&#x20AC;&#x2122;s perception of it combined with close

relationship of affection between the Plaintiff and the primary victim.

Without all of those elements being present the requirement of legal

proximity had not been made out (see [25], [26] of the judgment).

In the instant case, Mr Wild had the necessary relationship with Mrs Wild and the causative link between the circumstances was not in dispute. However, it could not be said that (iii), above, had been made out. Mr Wild had experienced a growing and acute anxiety which started when the second midwife failed to find a heartbeat. That developed to the point at which, simply because of the behaviour of the clinical staff and the words of the doctor he had a correct realisation that the baby had died. None of that equated to actually witnessing horrific events leading to a death or serious injury. Accordingly, Mr Wild could not on the facts succeed in his claim for damages which had therefore to be dismissed (see [26], [47] of the judgment). Alcock v Chief Constable of South Yorkshire Police [1991] 4 All ER 907 considered.

Mr R Scott - Watson

Professor Roger James

BSc(Hons) MB BS LLB (Hons)(Open) Cert.Av.Med. Cert MR(2) CUEW DDAM FRCS(Ed)

INDEPENDENT HEALTH CONSULTANT AND EXPERT WITNESS

RSW Medico-Legal Ltd

Professor Roger James is an independent Health Consultant with extensive experience of UK and international clinical governance, regulatory procedures, service development, reconfiguration and delivery, particularly in the field of cancer services.

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Associate Medical Director for Patient Safety & Consultant Obstetrician and Gynaecologist T: 07748 645 864 E: jaiyesimi@obs-gyn.org 23

Damages Browne v Commissioner of Police of the Metropolis [2014] EWHC 3999 (QB) The claimant, who had worked as a close protection security guard, was walking along Kentish Town Road with the comedian and television celebrity NF. As they walked along the road the claimant and NF were seen by two police officers, in a patrol car. The officer believed that the two men were showing signs of drug use and so they turned the car round to follow them intending to stop them and talk to them. During the ensuing incident NF was restrained, handcuffed and searched and then taken to the police station where he was subjected to a strip search. No drugs or drug related materials were found on him and he was subsequently released without charge or further action. The claimant was searched and various drug related materials were found. An ambulance was called to attend to the claimant who had by then been arrested. He was taken to the hospital. In the course of the incident, the claimant suffered a severe, comminuted fracture of his right tibial plateau known as a Schatzker type 6 fracture for which he was treated in hospital. It was a significant injury. He was in hospital for about a month. He had undergone several further operations and had ongoing difficulties. No further action was taken by the police in respect of the drug related materials. The claimant brought an action for damages for assault and battery against the police in respect of the knee injury. The main issue was for the court to decide how the claimant came by the fracture in the course of the incident. It was the claimant’s case that he had been the subject of a deliberate assault. The defence suggested that the incident was brought about as a result of the reasonable force required in light of the claimant’s resistance. The claim would be allowed. In the circumstances, the claimant succeeded in his claim on the basis that the search of him was unlawful by reason of the failure to give the appropriate information and secondly because in any event excessive force was used to restrain him in the convenience store. The claimant had not been deliberately assaulted by the police, however, he had used unnecessary and unreasonable force to restrain him, believing he was being ignored. Thus it amounted to an assault. Finally, the claimant had not been not guilty of any contributory negligence (see [46], [54] of the judgment). General damages for pain, suffering and loss of amenity fell into the very serious category of severe leg injuries, that was, £40,300 -£62,150. The appropriate award would be £55,000. For the subsequent fracture to the femur the appropriate award would be £6,700 with a total sum of £108,491 (see [56], [60], [65] of the judgment). Sheppard v Secretary of State for the Environment [1975] JPL 352 considered. 24

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Limitation Chief Constable of Hampshire Constabulary v Southampton City Council [2014] EWCA Civ 1541 Section 10 of the Limitation Act 1980 provides, so far as material: ‘(3) If the person in question is held liable in respect of that damage— (a) by a judgment given in any civil proceedings; or (b) by an award made on any arbitration; the relevant date shall be the date on which the judgment is given, or the date of the award (as the case may be). For the purposes of this subsection no account shall be taken of any judgment or award given or made on appeal in so far as it varies the amount of damages awarded against the person in question. (4) If, in any case not within subsection (3) above, the person in question makes or agrees to make any payment to one or more persons in compensation for that damage (whether he admits any liability in respect of the damage or not), the relevant date shall be the earliest date on which the amount to be paid by him is agreed between him (or his representative) and the person (or each of the persons, as the case may be) to whom the payment is to be made.’ C had been employed by the claimant police constabulary. The police station where he had worked was based in a building owned by the defendant local authority and let to the constabulary under a tenancy at will. C developed mesothelioma. He issued proceedings in the High Court against the constabulary that alleged that he had negligently, and in breach of statutory duty, been exposed to asbestos. The constabulary, under the CPR Pt 36 procedure, settled the claim for £76,350 plus costs. C accepted the offer and the court made a consent order. Subsequently, the solicitors agreed the amount of C’s costs payable by the constabulary, being £140,000 inclusive of VAT and interest, and a costs judge in the Senior Courts Costs Office made an order that gave effect to that agreement. The constabulary took the view that the authority bore some responsibility for C’s injuries as it had negligently allowed asbestos lagging to be present in its building. Accordingly, it sought a contribution to the damages and costs it had paid to C and a contribution towards its own costs that it had incurred in defending C’s claim. The authority’s insurer rejected the claim and, on 3 December 2012, the constabulary commenced contribution proceedings alleging that the authority had been negligent in having failed either to remove or properly encapsulate the asbestos lagging. The judge addressed the issue of limitation as a preliminary matter. She concluded that the case fell within s 10(4) of the Limitation Act 1980. She held that there had been a binding agreement between C and the constabulary on 4 November 2010, that being the date when the Pt 36 offer had been accepted. The limitation period had commenced on that date and not the later date on which

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the consent order had been made, therefore, the constabulary’s claim was statute barred. The constabulary appealed against the dismissal of its claim. It submitted: (i) that the case had fallen within s 10(3) of the 1980 Act and not s 10(4); and (ii) if the case had fallen within s 10(4), then the phrase ‘amount to be paid’ in that sub-section embraced costs as well as damages, therefore, the judge had erred in finding that time had started to run on 4 November 2010 as the amount of costs had not been agreed until September 2011. Consideration was given to ss 1(1) and 2(1) of the Civil Liability (Contribution) Act 1978. The appeal would be dismissed.

(1)

Section 10(3) of the 1980 Act had had no application in the present case

and the judge had been correct to have proceeded under s 10(4). The

consent order had not constituted a ‘judgment’ by which the

constabulary had been ‘held liable’ in respect of C’s injuries. Accordingly,

it had not fallen within s 10(3) of the 1980 Act. Nor had the later costs order

constituted a ‘judgment’ that fell within that section. The constabulary

and C had settled their litigation using CPR Pt 36, so there had never been

a judgment which fell within s 10(3) of the 1980 Act (see [30], [33], [52], [53]

of the judgment).

Knight v Rochdale Healthcare NHS Trust [2003] 4 All ER 416 considered; Aer Lingus plc v Gildacroft Ltd [2006] 2 All ER 290 considered.

(2)

Section 10(4) of the 1980 Act was focused upon the sum which the

defendant agreed to pay for the actual damage caused. It was not

focused upon the defendant’s ancillary liability for costs, even though that

liability could be the subject to a contribution claim under the 1978 Act.

The word ‘damage’ in s 10 of the 1980 Act was a reference to the actual

damage which had been wrongfully caused to or inflicted upon the

claimant. The claimant’s right to recover costs from the defendant was

not part of the claimant’s ‘damage’; it was an ancillary entitlement,

subject to the court’s discretion. The phrase ‘the amount to be paid’

which appeared in s 10(4) of the 1980 Act had to be construed

consistently with the opening words of that sub-section. It meant the

amount to be paid in respect of the actual damage caused to the

claimant. It did not refer to or include the amount of costs which the

defendant had to pay to the claimant, even though those costs could be

the subject of a contribution claim (see [42]-[45], [52], [53] of the

judgment).

In the present case, time had started to run under s 10(4) of the 1980 Act on 4 November 2010, that being the date on which C had accepted the constabulary’s offer of damages under CPR Pt 36. Therefore, the constabulary’s claim was statute barred (see [46], [47], [52], [53] of the judgment). BICC Ltd v Cumbrian Industrials Ltd [2001] All ER (D) 436 (Oct) considered; Mouchel Ltd and Van Oord (UK) Ltd (No 2) [2011] All ER (D) 110 (Jun) considered.

Clinical Negligence Davies v University Hospital of North Staffordshire NHS Trust and another [2014] EWHC 4004 (QB) The claimant was born in November 1991. She had suffered from headaches during her childhood. The claim related to care she had received in January 2001. The claimant had had a tumour on the brain and, if a scan had been carried out in January 2001, that tumour would have been detected then. The court had to determine a preliminary issue as to whether or not the first defendant NHS Trust had breached its duty to exercise reasonable care and skill in the treatment of the claimant. The principal issue was whether the NHS Trust had been negligent in failing, either on 6 January 2001, or the 28 January 2001, to arrange for a brain scan for the claimant, or in failing to arrange for paediatric follow-up at which a brain scan would have been considered or arranged. The court ruled: On the evidence, there had been no breach of duty. The doctors on each occasion had acted in accordance with a responsible body of professional opinion. They had not been negligent (see [67] of the judgment). Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 applied; Bolitho v City and Hackney Health Authority [1997] 4 All ER 771 applied.

Holiday Claims Lougheed v On The Beach Ltd [2014] EWCA Civ 1538 The defendant was the ‘organiser’ of a holiday package, as defined by the Package Travel, Package Holidays and Package Tours Regulations 1992, SI 3288/1992 (the Regulations) sold by it to CB. The package was for a party of five, which included the claimant. Therefore, under the Regulations, CB was ‘the principal

contractor’ and the claimant was a ‘consumer’. The accommodation was a Spanish hotel. During the claimant’s stay at the hotel, she slipped and fell while going down a flight of steps. The claimant sustained injuries. She brought proceedings against the defendant, contending that it was liable to her, pursuant to para 15(1) of the Regulations, and that the circumstance that water was deposited on the steps and/ or allowed to remain there until she slipped upon it was indicative that the hotel had not exercised reasonable skill and care in the discharge of its obligations owed to her. The claimant’s application for permission to rely upon a written report from a Spanish lawyer to advise upon relevant local Spanish regulations was refused. The trial, therefore, proceeded in the absence of any expert evidence as to local standards. The recorder found for the claimant and awarded her damages. In so finding, he concluded that there was a foreseeable danger which arose from the use of the stairs by people who had come fresh from the pool. He further concluded that he had clear evidence from the hotel manager, L, that there were no specific standards in Spain relevant to the case and agreement with the proposition that it was not acceptable to leave floors wet. The defendant appealed. It submitted, first, that the recorder had been wrong, as a matter of law, to have found that the hotel had been in breach of local standards, because the claimant had failed to adduce evidence of local standards. Further, the recorder had wrongly relied upon the evidence of L as evidence of local standards. Secondly, the recorder had been wrong, as a matter of law, to have found that the defendant bore any evidential burden of proof in cases of the present nature. The court considered Ward v Tesco([1976] 1 All ER 219), in which the court had held that the accident in that case ‘was such as in the ordinary course of things does not happen if floors are kept clean and spillages are dealt with as soon as they occur’. The appeal would be allowed.

(1)

The judge had overstated the case when he had said that L’s evidence

had been that there had been no specific standards in Spain relevant to

the case. Agreement with the proposition that spillages, once identified,

should be dealt with took the matter no further at all. It begged the

question as to the steps needed to be taken to identify spillages. What

had been missing at trial had been any enquiry as to the general practice

in Spain in establishments of the sort in the present case, so far as

concerned the monitoring of the public areas, with a view to identifying

and removing any spillages or areas of liquid which might pose a hazard

to guests and staff. The recorder had recognised that standards might

not be the same in Spain as in the United Kingdom and that there would

be cases where the court was unable to draw an inference of want of 30

care without sufficient evidence of Spanish standards. The present was just

such a case, both because of the lack of relevant evidence on a point on

which the claimant had bore the evidential burden, and because it had

not been a proper case in which to draw an inference, without more, of a

lack of proper care (see [26], [27], [36], [37] of the judgment).

To impose an evidential burden upon a party, such as a travel agent or

(2)

even a tour operator who had no control over the management of

the hotel at which customers stayed, might create difficulties for those

potentially liable under the Regulations. However, given that para 15(1)

of the Regulations had expressly made a party liable, irrespective

of whether the relevant obligations were to be performed by that party,

that consideration could not be an absolute bar to the court, in a proper

case, inferring that an accident would not have occurred but for the

absence of proper care on the part of those for whose performance ‘the

other party to the contract’ was made liable. However, that ‘artificial

liability’ was a very good reason for not imposing upon a party an

evidential burden unless it had, at the least, been shown that the party for

whose performance it was liable had known of the likelihood of the

presence of a hazard, such as spillage, and of the danger to consumers

which that hazard posed if not dealt with promptly (see [33], [36], [37] of

the judgment). The recorder had not, on the basis of the facts found, been justified in his conclusion that it had been an accident such as in the ordinary course of things did not happen if those who had the management of the hotel used proper care. It had been an accident which could have occurred despite the use of proper care. The present case had not been an appropriate case for the invocation of the Tesco v Ward principle. There had been no finding that spillage or the presence of water had been likely in the area. The recorder’s conclusion that ‘there was a foreseeable danger arising from the use of the stairs by children or even adults who have come fresh from the pool’ fell far short of a finding that the hotel had known of the likelihood of a dangerous situation arising. There had been no evidence that slipping at that place had a known likely risk, with sufficient frequency of occurrence that it had required a system to remove it, so that an accident could be inferred to be the result of the absence of a system which ought to have been in place or a failure in the operation of the system (see [31], [32], [36], [37] of the judgment). The order giving judgment to the claimant would be set aside and her claim would be dismissed (see [34], [36], [37] of the judgment). Ward v Tesco Stores Ltd [1976] 1 All ER 219 considered. 31

Chapter 2 January 2015

Clinical Negligence Border v Lewisham and Greenwich NHS Trust (formerly South London Healthcare NHS Trust)[2015] EWCA Civ 8 Court of Appeal, Civil Division The claimant had attended at the accident and emergency department of one of the defendant NHS Trust’s hospital. The doctor had inserted a cannula in her left arm, even though she had told him that there was a risk of oedema due to a recent procedure that she had undergone. The cannula site became infected, the claimant suffered a fairly serious case of oedema and was left with a permanent disability in her left arm. The county court judge dismissed her claim for clinical negligence. The Court of Appeal, Civil Division, held that the judge had failed to take to its logical conclusion his finding that the cannula had been inserted without the claimant’s consent. That had been a breach of the doctor’s duty of care. The matter would be remitted to resolve issues of causation. The court ruled: There was only one tenable reading of the first instance judgment, namely that the judge had found that the doctor had gone ahead with the insertion of the cannula without having obtained the claimant’s consent, either express or implied. While it was established law that in a medical emergency, when the patient was incapable of giving consent, a doctor might proceed without consent provided that he was acting in the patient’s best interests, on the evidence in the present case, it had not been such a case of medical emergency. The claimant had been in the emergency room, but she had been fully conscious and capable of giving or withholding her consent. The judge had, therefore, been wrong to have regarded the issue of consent as unimportant. A finding of absence of consent to the insertion of the cannula led inexorably to a finding of breach of duty in having inserted it. The judge’s error in not having taken his finding of absence of consent to its logical conclusion had been understandable in the circumstances, but would be corrected by the present court (see [19], [21], [24], [28], [29] of the judgment). 32

A declaration would be granted that the doctor had been in breach of his duty of care by having inserted the cannula without the claimant’s consent. The matter would be remitted to the judge for him to determine the outstanding issue of causation (see [27]-[29] of the judgment). St George’s Healthcare NHS Trust v S, R v Collins, ex p S [1998] 3 All ER 673 distinguished.

Welch v Waterworth (Executor of the estate of Marjorie Waterworth, deceased)[2015] EWCA Civ 11Court of Appeal, Civil Division Judgment had been entered for the claimant against the defendant surgeon for damages for negligence on the part of the defendant in a surgical procedure performed by him upon the claimant’s late wife, following which, she had suffered kidney failure. The Court of Appeal, Civil Division, in dismissing the defendant’s appeal, held, inter alia, that the judge had been entitled to have fastened upon those aspects of the evidence which he had found to have been reliable pointers to what had actually occurred during the procedure, without trawling through every issue, side issue or speculation that arose on the evidence or in argument. The appeal would be dismissed.

(1)

The defendant’s oblivion as to what had gone on in the operation and

thereafter had amply justified a finding that his operation notes provided

very significant evidence of the clamping sequence that had actually

occurred. There had been entirely adequate evidence for a finding that

the defendant would not have been susceptible to the alleged alarm

bells and the judge had been entitled to have fastened upon those

aspects of the evidence which he had found to have been reliable

pointers to what had actually occurred, without trawling through

every issue, side issue or speculation that arose on the evidence or in

argument. Accordingly, the first ground of appeal would be rejected (see

[31], [32], [46], [47] of the judgment).

In the circumstances, the judge had not been required to have

(2)

addressed, individually, each and every one of the alarm bell points

which had been raised in the defendant’s closing submissions at trial. It

was not accepted that the judge’s judgment did not inform the

defendant why he had lost. Accordingly, the second ground of the

appeal would also be rejected (see [34], [35], [46], [47] of the judgment).

ST (a protected party by his mother and Litigation Friend, KT) v Maidstone and Tunbridge Wells NHS Trust [2015] EWHC 51 (QB) Queen’s Bench Division The proceedings concerned the trial of the issues of breach of duty and causation in the claimant’s clinical negligence claim against the defendant NHS Trust. The Queen’s Bench Division, in dismissing the claim, held that, although breach of duty had been established, the claimant had failed in his case on causation. The claimant suffered from one and probably two congenital haematological conditions, including hereditary spherocytosis (HS), which was the cause of his severe anaemia. On 24 November 2004, when he was aged two, he was unwell and was taken to hospital. On each of the following two days, he was given blood transfusions and, simultaneously, a diuretic. Three days later, the claimant suffered seizures. He was found to have had a series of strokes, as a result of which he suffered brain damage, and had been left with severe and permanent disability. The claimant issued clinical negligence proceedings. The defendant NHS Trust admitted that it was negligent, by failing to admit the claimant to hospital on 24 November and by delaying performance of the blood transfusion until the following day. However, it denied negligence in failing promptly to administer intravenous (IV) fluids when the claimant had become dehydrated and by giving the claimant the diuretic. The issues for determination were:

(i)

whether the defendant had breached its duty by failing promptly to

administer IV fluids when the claimant had become dehydrated and by

giving the claimant the diuretic;

whether the claimant’s injury had been caused by the effects of his HS,

(ii)

acute-on-chronic haemolysis, hypoxia/hypoxaemia, hypocapnia and

dehydration; and

(iii) whether, if focal arteriopathy had been the primary cause of pertubation

of the blood vessel wall, the claimant’s dehydration, acute-on-chronic

haemolysis, severe anaemia and the use of diuretics had caused or made

a contribution to the occlusion of the basilar artery and the consequent

strokes. The claim would be dismissed.

(1)

Had the transfusion not been delayed, the claimant would not have

become significantly dehydrated overnight. Thereafter, had the

dehydration been adequately managed, with the administration of

IV fluids when necessary, it would certainly not have risen to the level

that it had. Further, any competent practitioner would have concluded

that to administer the diuretic at the time of both the first and second

transfusions would not be good medical practice. Accordingly, the

giving of the diuretic on both occasions had constituted a breach of duty.

It would have made some contribution to the dehydration the claimant

had already been suffering (see [76], [79], [80] of the judgment).

There was no convincing evidence that, in general, anaemia and

(2)

haemolysis gave rise to the risk of thrombus, emboli or stroke in a patient

who, like the claimant, suffered from HS. As to hypoxia, there was no

evidence that the claimant had been hypoxic at the material time, in

fact, the evidence pointed the other way. The claimant had undoubtedly

been hypocapnic, but the protective mechanisms available to patients

with HS were likely to have protected him from the vasoconstriction that

could result from hypocapnia in a normal patient. As to dehydration,

the claimant’s dehydration had not fallen within the severe category

and his haematocrit levels had been low. There was no authoritative

evidence that patients with the claimant’s level of dehydration or with his

haematocrit levels were prone to thrombus, emboli and stroke. Further,

there was no authoritative medical literature which confirmed that the

various factors might have a cumulative or synergistic effect to produce

such an outcome (see [200], [202] of the judgment).

On the balance of probabilities, the primary cause of the claimant’s

(3)

strokes had been a focal cerebral arteriopathy, which had, in turn, been

caused by the upper respiratory tract infection from which he had been

suffering. Such an infection was a clearly established risk factor for

arteriopathy and strokes in children, even when it was minor, as it

apparently had been in the claimant’s case. While there was a possibility

that the various conditions or some of them might have combined

cumulatively or synergistically with the arteriopathy to cause his strokes.

However, there was no objective and reliable evidence that the

claimant’s dehydration, acute-on-chronic haemolysis and/or severe

anaemia, whether together or separately, had contributed with the

arteriopathy to cause his strokes (see [208], [216] of the judgment).

Hayes v South East Coast Ambulance Service NHS Foundation Trust [2015] EWHC 18 (QB) Queen’s Bench Division The deceased suffered an asthma attack and called the ambulance. Although the crew attended the deceased, the deceased died and his wife brought a claim in negligence against the defendant NHS Trust. The Queen’s Bench Division held that there had been negligence and that negligence had caused the claimant’s death. The deceased suffered from asthma which was described as brittle asthma. Following a game of golf, the deceased suffered an asthma attack which resulted in his death despite the attendance of an ambulance crew. The claimant who was the former wife of the deceased, contended that there were a series of failures by the ambulance crew both in their assessment of the deceased’s condition and the treatment which they provided which should result in damages as her husband’s death had been caused by the negligence of the defendant. The defendant denied any breach of duty by the crew and said that in any event the outcome was inevitable and none of the measures put forward by the claimant either individually or in combination would have prevented the deceased’s death. The defendant contended that the claimant’s case was based on an analysis made with the benefit of hindsight and not the picture as it was presented to the crew at the time. The claim was made pursuant to the Law Reform (Miscellaneous Provisions) Act 1934 (as amended) and the Fatal Accidents Act 1976 (as amended). The experts disagreed as to whether or not the measures contended for by the claimant would have affected the outcome. It was he claimant’s case that her former husband’s death was caused by the negligence of the defendant. All matters breach of duty, causation and quantum were in issue. The claim would be allowed. On the facts and evidence, the defendant was in breach of its duty of care to the deceased. Had the defendant not been in breach, there would have been a 60% prospect of survival. In the circumstances the claimant succeeded on the issues of negligence and causation and therefore liability (see [136], [141], [142] of the judgment). In respect of quantum it was agreed that the court should make some findings in principle in the hope that the parties could agree some figures (see [145] of the judgment).

Success Fees Broni and others v Ministry of Defence [2015] EWHC 66 (QB) Queen’s Bench Division Following an appeal by three former servicemen who had been injured in service, the Queen’s Bench Division, having regard to the Employers Liability (Compulsory Insurance) Act 1969, held that the fixed success fee regime in (pre 1 April 2013) CPR 45, s IV did not apply to claims brought by members of the armed forces in respect of injuries suffered at work. The three appellants were members of the armed forces. Each had claimed in respect of injuries sustained whilst in service. The pre 1 April 2013 CPR 45 s IV stipulated fixed success fees in certain employers’ liability claims. That would include the injuries sustained in the cases of the three appellants if the other criteria for the application of the regime had been satisfied. CPR 45.20(1)(a) stipulated that: ‘this Section applies where… the dispute is between an employee and his employer…’ . ‘Employee’ was defined in r 45.20(3)(b) as an individual who had entered into or worked under a contract of service or apprenticeship with an employer (as per Employers Liability (Compulsory Insurance) Act 1969). With the exception of mesothelioma claims, success fees in personal injury (and Fatal Accidents Act 1976) claims against an employer could not be recovered between the parties where the conditional fee agreement (CFA) was entered into after 31 March 2013. It was decided in respect of the three claims that the regime in CPR 45 had applied because the claimant was an employee within the meaning of CPR 45.20(1)(a). On appeal, the appellants contended that the fixed success fee regime did not apply because they were not ‘employees’. The issue was whether the fixed success fee regime applied to claims brought by members of the armed forces in respect of injuries suffered at work. The appellants submitted that a serving member of the armed forces did not work under a ‘contract of service’. Accordingly such a person was not an employee for the purposes of the 1969 Act or consequently for the purposes CPR 45 s IV. The respondent submitted, inter alia, that the court should adopt a purposive approach to the construction of the words ‘contract of service’ in s 2(1) of the 1969 Act, so that the relationship between a serving member of the armed forces and the respondent was treated as one of employer and employee and a contract of service existed for the purposes of CPR 45.20(1). The appeals would be allowed. The Ministry of Defence owed a duty of care to servicemen whether they worked under a contract of service or not. There was no ambiguity in CPR 45.20(1)(a) and (3)

(b). The rule addressed itself to the question of what the term ‘employee’ meant. It was a person who fell within s 2(1) of the 1969 Act. There was therefore no scope for giving a broad or purposive interpretation to r 45.20(1)(a) different from the specific meaning given to the term ‘employee’ by s 2(1) of the 1969 Act. The words ‘contract of service’ in s 2(1) of the 1969 Act had a single meaning which did not vary (see [26], [28] of the judgment). The fixed success fee regime did not apply to the claims, and accordingly the appeals would be allowed (see [29] of the judgment). Quinn v Ministry of Defence [1998] PIQR P 387 applied.

Employers Liability Dusek and others v Stormharbour Securities LLP [2015] EWHC 37 (QB) Queen’s Bench Division The deceased died following a helicopter crash whilst employed on a project by the defendant employer. The deceased’s wife brought a claim against the employer. The Queen’s Bench Division held that the scope of the defendant employer’s duty extended to the charter of the helicopter and the flight, that the duty had been breached and that breach had caused the deceased’s death. A helicopter operated by a Peruvian company crashed into a mountain in Peru, killing all 12 passengers and two crew on board. One of those passengers was the deceased, who was an employee of the defendant, an independent global markets and financial advisory firm and an English limited liability partnership. The deceased had been in Peru for his work on a project. The helicopter had been chartered for the purpose of a visit to the proposed sites for the project. The deceased’s widow and children brought that claim under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934. It was alleged in the action that the defendant was in breach of its duty as employer to provide the deceased with a safe place of work, safe equipment and a safe system of working. The trial concerned liability only. The principal liability issues were: (i) whether the scope of the defendant’s duty of care as employer extended to the charter and flight; (ii) if there was such a duty, whether the defendant had breached it; (iii) if the defendant had breached its duty whether that breach had caused the deceased’s death. The claim would be allowed.

Employers owed a personal, non-delegable duty to their employees to take reasonable care for their physical safety. The duty was to carry on his operations so as not to subject those employed by him to unnecessary risk. An unnecessary risk was any risk that the employer could reasonably foresee and which he could guard against by any measures, the convenience and expense of which were not entirely disproportionate to the risk involved. In many cases the employer’s duty related to the premises occupied by him and the system of work there provided. However, it might also extend to third party premises to which the employee was sent to work. Just as the employer’s duty might extend to third party premises abroad, so it might also extend to transport to and from such a place of work (see [109], [110], [115] of the judgment). The defendant was, on the facts of the case, under a duty to take reasonable care to see that the deceased had been reasonably safe while travelling to and from and at his place of work abroad where he had been required to go in the course of his employment. That place of work had been the project site. There were reasonably foreseeable and indeed obvious potential dangers involved in the trip. A reasonable and responsible employer would have realised that if their employee had been to fly on a helicopter in the circumstances, there would be a real risk of danger to their employee. The personal safety of their employee would be entirely dependent on the safe operation and performance of that chartered helicopter flight. The defendant owed a duty to take reasonable care to safeguard them from the danger involved. In the instant case that required the defendant to make at least some form of inquiry into the safety of the trip and carry out some form of risk assessment. The defendant was therefore in breach of its duty of care in doing nothing to investigate into the safety of the proposed helicopter flight. If such inquiries had been made with an appropriate risk assessment, the result would have been that it would have instructed the deceased not to go on the flight because of safety concerns. In such circumstances he would not have done so. The deceased would not have taken on the risk of the flight in the light of an instruction not to do so from his employer on safety grounds (see [134], [174], [175], [178], [191], [215] of the judgment). The claimants’ case on liability was proved (see [217] of the judgment). Smith v Baker 1979 SLT (Notes) 19 applied; Harris v Bright’s Asphalt Contractors Ltd [1953] 1 All ER 395 considered; Wilson v Tyneside Window Cleaning Co [1958] 2 All ER 265 considered; Smith v Austin Lifts Ltd [1959] 1 WLR 100 considered; Durnford v Western Atlas International Inc [2003] All ER (D) 94 (Mar) considered; Hopps v Mott MacDonald Ltd [2009] All ER (D) 259 (Jul) considered. 39

Chapter 3 February 2015

Clinical Negligence Hogg v The Secretary of State for Health [2015] EWHC 267 (QB) Negligence – Causation. When the claimant was born, he was diagnosed with septo-optic dysplasia with structural brain abnormalities, visual defects, anterior and posterior pituitary deficiencies with resultant diabetes insipidus, adipsia, sleep apnoea and severe learning disabilities. He claimed that his condition was caused by the negligent performance of an amniocentesis on his mother when pregnant with him. The Queen’s Bench Division held that the claimant had failed to persuade the court that the condition from which her son suffered was caused by the amniocentesis. The claimant was born at the London Hospital, Whitechapel, in 1986. He was diagnosed with septo-optic dysplasia with structural brain abnormalities, visual defects, anterior and posterior pituitary deficiencies with resultant diabetes insipidus, adipsia (an inability to perceive thirst), sleep apnoea and severe learning disabilities. In the proceedings, he claimed that his condition had been caused by the negligent performance of an amniocentesis on his mother when pregnant with him, at the London Hospital in August 1985, such that the amniocentesis needle punctured his head and damaged his brain. The procedure was performed by Dr G and a sonographer, for whom the defendant was vicariously responsible. The main issue was whether the claimant’s brain abnormalities were the result of the amniocentesis needle penetrating his skull. There other issue arose of whether the defendant had been negligent in the assessment of the claimant’s gestational age. The claim would be dismissed. On the evidence, despite the fact the defendant had been negligent in the assessment of the claimant’s gestational age at the time of the amniocentesis, the claimant had failed to persuade the court that the condition from which her son suffered had been caused by the amniocentesis at the focus of the action (see [64], [84] of the judgment).

RTA Dursan v J Sainsbury plc [2015] EWHC 233 (QB) The case concerned a claim for damages arising out of a fatal road traffic accident by which the claimant, who was the widow of the deceased D, brought an action against the defendant company on behalf of his estate and dependants. The accident occurred in December 2011 on one of the north bound carriageways in London. As the deceased was crossing the road from west to east, an LGV, being driven by PL in the course of his employment with the defendant, collided with him causing fatal injuries. At the material time, there had been a stationary doubledecker PSV in the area of the bus stop in the inside lane, whilst the LGV had been stationary in the outside lane in the vicinity of the rear of the PSV. The collision had occurred when the deceased had alighted from the west side pavement, walked across the rear of the PSV and had started to walk across the front of the LGV. At that point the LGV was driven forward and into collision with the deceased. The prevailing traffic conditions were those of a congested stop/start variety, with queues of traffic in the north and south bound lanes, whilst the weather conditions were those of light but persistent rain. The accident occurred in the hours of darkness, although illumination had been provided by vehicular, street and shop lighting. The issue was whether the driver of the LGV had been negligent in his driving of the vehicle. Consideration was given to the expertsâ&#x20AC;&#x2122; reports. The claim would be dismissed. It was a matter for the driver of an LGV to select the most appropriate one in the particular circumstances in which he found himself. The court was satisfied that PL had carried out the sequence of checks which he described in evidence in a conscientious and careful manner and had not seen the deceased in the course of the checks which he made in either his Class V or VI mirrors, not because of any lack of care on his part, but because the deceased was not in the relevant field of vision at the material time. When PL carried out this sequence of visual checks, there was nothing which came to his attention which alerted him to the possible presence of pedestrians in close proximity to the front of the LGV. That did not imply any lack of care in making those observations (see [33] of the judgment). Given the circumstances which pertained that evening, the failure of the deceased to take any precautions for his own safety (see [39] of the judgment) had resulted in him being the author of the tragic incident.

Vicarious Liability Graham v Commercial Bodyworks Ltd [2015] EWCA Civ 47 Vicarious liability – Employer and employee. An incident at the defendants’ bodywork repair shop occurred when a co-employee of the claimant, PW, used a cigarette lighter in the vicinity of the claimant, whose overalls had been sprinkled with a highly inflammable thinning agent. As a result, the overalls caught fire and caused the claimant injury. The judge found that the defendant was not vicariously liable for PW’s actions. The Court of Appeal, Civil Division, in dismissing the claimant’s appeal, held that the real cause of the claimant’s injuries had been the conduct of PW, which could not be said to have occurred in the course of his employment. An incident at the defendants’ bodywork repair shop occurred when a friend and co-employee of the claimant, PW, used a cigarette lighter in the vicinity of the claimant, whose overalls had been sprinkled with a highly inflammable thinning agent. As a result, the overalls caught fire and caused the claimant very considerable injury. The claimant brought proceedings against the defendant. It was not suggested that the defendant was itself negligent. Employees were permitted to decant only the approximate amount of thinner required for whatever job was being done and were then required to pour unused thinner into a waste tank. There was a sealed unit for the rags which had been used for the application of thinner. Smoking was not permitted anywhere within the workshop. Nor was there any suggestion that PW intended to cause any serious harm to the claimant. The judge found that PW had applied thinner to the claimant’s overalls and that some of that thinner came from a spray container. PW then used a cigarette lighter in the vicinity of the wet patch of the claimant’s overalls and that was the cause of the injury. However, the judge held that the defendant was not vicariously liable for PW’s actions. The claimant appealed. The issue before the court was whether the defendant was vicariously liable for PW’s actions. The court considered Wilson v Excel UK Ltd([2010] CSIH 35) (Wilson) and Vaickuviene v Salisbury Plc([2013] IRLR 792) (Vaickuviene). The appeal would be dismissed. On the facts, although the defendant employers had created a risk by having required their employees to work with thinning agents, it was difficult to say that the creation of that risk had been sufficiently closely connected with PW’s highly reckless act of splashing the thinner onto the claimant’s overalls and then using a cigarette lighter in his vicinity. Further, it seemed that PW’s conduct had been similar to that 42

of the co-employees in the cases of Wilson and Vaickuviene and that the present case, like them, fell within the group of cases in which it was inappropriate to impose vicarious liability. The real cause of the claimantâ&#x20AC;&#x2122;s injuries had been the no doubt frolicsome, but reckless, conduct of PW, which could not be said to have occurred in the course of his employment (see [14], [15], [20], [22], [24], [25] of the judgment). Bazley v Curry 174 DLR (4th) 45 considered; Lister v Hesley Hall Ltd [2001] All ER (D) 37 (May) considered; Dubai Aluminium Co Ltd v Salaam (Livingstone, third parties) [2002] All ER (D) 60 (Dec) considered; Wilson v Exel UK Ltd t/a Exel [2010] CSIH 35 considered; Weddall v Barchester Healthcare Ltd; Wallbank v Wallbank Fox Designs Ltd [2012] All ER (D) 01 (Feb) considered; Vaickuviene v J Sainsbury plc [2013] IRLR 792 considered.

Negligence Michael and others v Chief Constable of South Wales Police and another [2015] UKSC 2 Police â&#x20AC;&#x201C; Negligence. The claimants were the family and estate of a murdered woman. The claimants had issued proceedings against two police forces in negligence and a failure to protect life in breach of art 2 of the European Convention on Human Rights. The Court of Appeal, Civil Division had granted summary judgment on the claim in negligence and had allowed the art 2 claim to proceed. The Supreme Court upheld that decision and confirmed that there was no exception to the ordinary application of common law principles to provide protection for victims of domestic violence and/or to extend the common law in harmony with the obligations of the police under arts 2 and 3 of the Convention. Further, the art 2 claim involved questions of fact that should properly be determined at trial. The deceased, J, was a young mother who lived in Cardiff with her two children. She made a 999 call on her mobile phone from her home. The signal was received at a mast across the county border in Gwent. Accordingly, an operator, M, with the second defendant Gwent Police Force took the call. J told her that her former partner, W, had come to the house and found her with someone else. W had bitten her ear really hard and taken away the other person in his car, but had said that he would return to hit J. M asked J whether she could lock the doors to keep W out. J replied that she could lock the doors, but she did not know what W would do, nor did she know whether he had a key or how he had entered her house. Later in the call, J was recorded as saying that W had said he would return to kill J. An issue arose as to

whether that had been audible to M. M told J that the call would be passed to the first defendant South Wales Police Force and that she should keep her phone free as they would want to call her. The call was automatically graded as requiring an immediate response. M immediately contacted the South Wales Police and passed on an abbreviated version of the call, stating that W had threatened to return to hit J, but did not refer to the threat to kill. The information was relayed to officers on mobile patrol. However, the call had been downgraded to the next priority. Just under fifteen minutes later, a further emergency call was received from J by the Gwent Police. There was screaming, which then stopped. The call was graded immediate and officers attended at J’s house. They found that J had been stabbed to death. W was subsequently convicted of her murder. J’s family and her estate (the claimants) brought claims for damages against the two police forces (together the forces). The claim was based in negligence and a failure to protect life in breach of art 2 of the European Convention on Human Rights. The forces accepted that there had been serious failings. In the months leading to J’s murder, the South Wales Police had attended at her home on at least four occasions to deal with domestic violence issues between her and W. The forces applied to strike out the claims on the basis that, in law, they disclosed no reasonable causes of action. In the alternative, they applied for summary judgment on the basis that the claims had no real prospect of success. The judge held that there were serious issues of fact which could only be determined at a hearing of both the negligence claim and the claim under art 2 of the Convention. The forces appealed. The Court of Appeal, Civil Division, held unanimously that there should be summary judgment in favour of the forces on the negligence claim. The majority upheld the judge’s decision that the art 2 claim should proceed to trial. The claimants appealed against the decision to award summary judgment on the negligence claim and the forces cross-appealed against the decision that the art 2 claim should proceed. The issues for determination were, first, if the police were aware or ought reasonably to be aware of a threat to the life or physical safety of an identifiable person, or member of an identifiable small group, whether the police owed to that person a duty under the law of negligence to take reasonable care for their safety. Alternatively, if a member of the public (A) furnished a police officer (B) with apparently credible evidence that a third party whose identity and whereabouts were known presented a specific and imminent threat to his life or physical safety, whether B owed to A a duty to take reasonable steps to assess such threat and, if appropriate, take reasonable steps to prevent it being executed.

Secondly, on the basis of what had been said in the first 999 call, and the circumstances in which it had been made, whether the police should be held to have assumed responsibility to have taken reasonable care for Jâ&#x20AC;&#x2122;s safety and, therefore, had owed her a duty of care in negligence. Thirdly, whether, on the material before the court, there arguably had been a breach of art 2 of the Convention. Consideration was given to art 3 of the Convention. The appeal would be dismissed (Lady Hale and Lord Kerr dissenting). The cross-appeal would be dismissed.

(1)

(Lady Hale and Lord Kerr dissenting) Subject to statutory exceptions and

two well recognised types of situation in which the common law might

impose liability for a careless situation, English law did not, as a general

rule, impose liability on a defendant for injury or damage to the person

or property of a claimant caused by the conduct of a third party. Those

general principles were equally applicable where the defendant was

a public body. There would be no exception made to the ordinary

application of common law principles to provide protection for victims

of domestic violence and/or to extend the common law in harmony

with the obligations of the police under arts 2 and 3 of the Convention to

create any such new category of duty of care (see [97]-[101], [113]-[122],

[125]-[130] of the judgment).

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] 2 All ER 575 considered; Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294 considered; Maloco v Littlewoods Ltd [1987] AC 241 considered; Yuen Kun-yeu v A-G of Hong Kong [1987] 2 All ER 705 considered; Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238 considered; Davis v Radcliffe [1990] 2 All ER 536 considered; Murphy v Brentwood District Council [1990] 2 All ER 908 considered; Stovin v Wise (Norfolk County Council, third party) [1996] 3 All ER 801 considered; Gorringe v Calderdale Metropolitan Borough Council [2004] 2 All ER 326 considered; Van Colle v Chief Constable of Hertfordshire Police; Smith v Chief Constable of Sussex Police [2008] 3 All ER 977 considered; Mitchell v Glasgow City Council [2009] 3 All ER 205 considered.

(2)

(Lady Hale and Lord Kerr dissenting) The only assurance which M had

given to J had been that she would pass on the call to the South Wales

Police. She had given no promise how quickly they would respond. She

had told J that they would want to call her back and asked her to keep

her phone free, but that did not amount to advising or instructing her to

remain in her house; Jâ&#x20AC;&#x2122;s call had been made on her mobile phone. Nor

had M’s inquiry whether J could lock the house amounted to advising or

instructing her to remain there (see [138] of the judgment).

The claimants’ appeal would be dismissed (see [140] of the judgment).

(3)

Whether M ought to have heard J say that W was threatening to return

and kill her, and, if she could not hear clearly what J had been saying

because of distractions, whether she should have asked J to repeat what

she was saying were questions of fact which were properly matters for

investigation at a trial (see [139] of the judgment).

The forces’ cross-appeal would be dismissed (see [140], [188], [199] of the judgment). Decision of Court of Appeal, Civil Division [2012] All ER (D) 216 (Jul) Affirmed.

Quantum Totham v King’s College Hospital NHS Foundation Trust [2015] EWHC 97 (QB) Damages – Personal injury. The proceedings concerned a claim for damages for serious brain injuries which the claimant had suffered during her delivery. The defendant NHS Trust had accepted liability for the injuries and the parties had agreed some heads of damages. The Queen’s Bench Division ruled on the remaining disputed heads of damage, including general damages for pain and suffering and loss of amenity, past gratuitous care and case management, and past professional case management. The claimant had suffered serious brain injuries, namely a grade 2 hypoxic ischaemic injury, during her birth in 2007. By June 2008, she was showing signs of cerebral palsy. She brought a claim against the defendant NHS Trust for damages. The defendant accepted liability for the injuries and the parties also agreed some heads of damages. The present proceedings were convened to determine the remaining disputes about damages. By the time of the present hearing, the claimant was seven years old. She was generally healthy, but lacked muscle strength and dexterity in her hands and arms, and found it hard to control the position and movement of her head. It was hard for her to sit or get around without help and she could not walk without help. As she got older, it was likely that she would need someone to be with her all of the time. There were ten substantive issues as to damages which remained in dispute. They included:

(i)

general damages for pain and suffering and loss of amenity, in respect

of which the court considered the applicable Judicial College (JC)

Guidelines, the uplift in Simmons v Castle([2012] All ER (D) 90 (Oct)) and

the increase in retail price index (RPI);

(ii)

past gratuitous care, in respect of which the court considered whether

there should be a discount from the agreed total of £80,000, to reflect the

fact that gratuitous care had been provided by the claimant’s parents

or whether, as the claimant submitted, the fact that her mother had given

up a highly paid job and had then gone back to working part-time in

order to care for her and co-ordinate the arrangements from her care

had meant there should be no discount; and

(iii) past professional case management, in respect of which the court

considered whether, as the defendant submitted, the claimant’s family

had not received value from the money they had paid to the company

which provided professional case managers (ILS) and that it should not

have to pay for a service, the charges for which had been grossly

unreasonable. The court ruled:

(1)

On the evidence, and having considered the applicable JC Guidelines,

the appropriate award, taking into account the Simmons v Castle uplift

and increase in RPI was £275,000 (see [21], [22] of the judgment).

The factors relied upon by the claimant had not meant that the present

(2)

case was so unusual as to mean that there should be no discount with

respect to past gratuitous care. Further, her reliance on the highly paid

employment which her mother had given up was inconsistent with the

ceiling principle, which capped compensation at the commercial cost

of care. A 25% discount was appropriate in the present case (see [27], [28]

of the judgment).

The claimant’s mother had acted reasonably in appointing ILS in the first

(3)

place and in having continued to employ and pay them until they had

walked off the job. Having taken into account all the sensible steps

which she had taken in having appointed ILS and in trying to manage

them and in checking with her professional and experienced deputy

whether their charges had been out of line, that part of the claim would

be allowed in full (see [32]-[40] of the judgment).

Clinical Negligence Welch v Waterworth (Executor of the estate of Marjorie Waterworth, deceased) [2015] EWCA Civ 11 Medical practitioner – Negligence. Judgment had been entered for the claimant against the defendant surgeon for damages for negligence on the part of the defendant in a surgical procedure performed by him upon the claimant’s late wife, following which, she had suffered kidney failure. The Court of Appeal, Civil Division, in dismissing the defendant’s appeal, held, inter alia, that the judge had been entitled to have fastened upon those aspects of the evidence which he had found to have been reliable pointers to what had actually occurred during the procedure, without trawling through every issue, side issue or speculation that arose on the evidence or in argument. The proceedings concerned a surgical procedure performed by the defendant vascular surgeon upon the claimant’s late wife, M. The operation was a ‘re-do bifemoral bypass graft’, the object of which was to replace an arterial bypass, placed in a previous operation, which had become clogged in the interim period. Almost immediately after the operation, M suffered acute and irreversible failure of both kidneys, requiring her to have regular dialysis from then until her death three and a half years later (which was from causes unrelated to the procedure). The claimant brought proceedings against the defendant. The experts were agreed that the cause of renal failure was most likely to have been precipitated by intra-operative atheroembolisation. The question at trial, therefore, was how the damage to the renal arteries had occurred during the course of the operation. It was contended by the claimant, and found by the judge, that the damage had been caused by a ‘sequencing error’ in the procedure, in that the defendant had clamped the aorta closed, across the material causing the blockage, before the aorta was cut and before the blockage was removed. Judgment was entered for the claimant against the defendant for £155,000 as damages for negligence on the part of the defendant. The defendant appealed. He submitted, first, that the judge had fallen into error in his assessment of the evidence, in having been over persuaded by his operation notes (for the contents of the notes, see [17], [18] of the judgment) and by having failed to address certain salient features of the case which had pointed to a different result. In particular, he contended, the judge’s error had been founded upon his failure to follow the consequences of his own finding that the defendant always honestly believed that he had carried out the operative steps in the correct sequence and, further, that six identified ‘alarm bells’ would have alerted the defendant to the alleged error if he had made it. Second, the judge had failed to give adequate reasons for his findings. 48

The appeal would be dismissed.

(1)

The defendantâ&#x20AC;&#x2122;s oblivion as to what had gone on in the operation and