Personal InjuryScribe 2014 by The Solicitors Group

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Personal InjuryScribe 2014 A Review of all the Essential Case Summaries and Legislative Updates.

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Contents... 1

January 2014......................................................................................................................... 6

July 2014................................................................................................................................... 88

Expert Evidence RTA............................................................................................................... 6

Limitation s.33 Discretion........................................................................................................ 88

MIB –Accidents abroad......................................................................................................... 8

Track Allocation Admissions and Value of Claim................................................................ 90

Pre-Action Disclosure.............................................................................................................. 12

Fast Track................................................................................................................................. 90

Limitation................................................................................................................................. 14

Part 18...................................................................................................................................... 91

Employers Liability Foreseeability......................................................................................... 17

Transfer..................................................................................................................................... 92

Duty of Care............................................................................................................................ 18

Limitation................................................................................................................................. 20

Costs success fee-30%............................................................................................................ 93

Costs......................................................................................................................................... 94

February 2014....................................................................................................................... 22

August 2014............................................................................................................................ 102

Litigation friends...................................................................................................................... 22

Manual Handling Regulations Breach?............................................................................... 102

Clinical Negligence................................................................................................................ 24

Interim Payments.................................................................................................................... 104

RTA............................................................................................................................................ 28

Interims..................................................................................................................................... 106

Mesothelioma......................................................................................................................... 30

Losses........................................................................................................................................ 108

March 2014............................................................................................................................. 34

Duty of Care............................................................................................................................ 34

Expert Evidence...................................................................................................................... 38

Fatal Accident Claims-Service out of the jurisdiction........................................................ 40

Causation and Default judgment........................................................................................ 109

Judgment in default............................................................................................................... 109

Workplace Stress-Harassment............................................................................................... 111

September 2014................................................................................................................. 114

Service..................................................................................................................................... 44

Vicarious Liability..................................................................................................................... 48

Second Defender................................................................................................................... 116

Cost Budget............................................................................................................................ 52

s.33 Limitation Act................................................................................................................... 118

Secondary Victims.................................................................................................................. 121

April 2014.................................................................................................................................. 54

Contributory Negligence....................................................................................................... 114

Contempt................................................................................................................................ 126

Clinical Negligence- causation............................................................................................ 54

Wagenaar v Weekend Travel Ltd. (t/a Ski Weekend) [2014]EWCA Civ 1105.................. 127

Fatal Accidents - Damages.................................................................................................. 56

Historic Sexual Abuse............................................................................................................. 128

Expert Evidence -Disclosure.................................................................................................. 60

Fatal Accidents....................................................................................................................... 62

German Law........................................................................................................................... 63

Limitation and Occupiers Liability Act.......................................................................................... 132

Capacity - Settlement agreed without litigation friend invalid........................................ 65

JURISDICTION RTA Germany COUNCIL REGULATION EC 864/2007, ART 4................................ 134

May 2014.................................................................................................................................. 68

German Law?.................................................................................................................................. 134

Costs Judicial Review Recoverable Success Fees...................................................................... 135

10 October 2014........................................................................................................................ 132

Asbestos exposure-Knowledge............................................................................................. 68

Damages- Causation..................................................................................................................... 137

State of Knowledge................................................................................................................ 68

Gratuitous Care............................................................................................................................... 138

Asbestos Exposure-Liability of Parent Company................................................................. 70

Appeals............................................................................................................................................ 139

Lack of Insurance................................................................................................................... 70

Preliminary Issue...................................................................................................................... 70

Disability............................................................................................................................................ 140

Duty of care............................................................................................................................ 72

Damages and Future Loss.............................................................................................................. 140

10 November 2014.................................................................................................................. 142

Superior Knowledge............................................................................................................... 73

Occupiers Liability.................................................................................................................. 73

Vicarious Liability/Indemnity.................................................................................................. 74

Claimant Expert............................................................................................................................... 142

CPR Update............................................................................................................................. 75

Defendant Expert............................................................................................................................ 142

RTA-Contributory Negligence............................................................................................... 76

Limitation.......................................................................................................................................... 143

June 2014................................................................................................................................. 78

Quantum.......................................................................................................................................... 146

Clinical Negligence........................................................................................................................ 142

RTA Liability....................................................................................................................................... 144

MIB –European Challenge..................................................................................................... 78

Limitation................................................................................................................................. 78

PRACTICE DIRECTION 21 – CHILDREN AND PROTECTED PARTIES................................................ 148

Fraud........................................................................................................................................ 81

Notice of Funding and Relief from Sanctions.............................................................................. 148

Amendment............................................................................................................................ 82

11 Classifieds................................................................................................................................ 151

Liability..................................................................................................................................... 83

PD 21 Changes October 2014....................................................................................................... 147

Clinical Negligence................................................................................................................ 85

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Section 1 January 2014

Expert Evidence RTA Faunch v O’Donoghue Court of Appeal (Civil Division) 05 December 2013 Unreported In a hearing to decide which of two drivers was responsible for a road traffic accident, the judge had erred in finding that the accident had occurred in a way uncanvassed at the hearing and in not giving the parties and their experts an opportunity to address his findings. The first defendant (O) appealed against a decision that he was solely responsible for a collision in which the car he was driving collided with the car driven by the second defendant (B). O and B had been driving in the same direction along a motorway. The carriageway had three lanes. Critically, it was unclear whether, before the collision, one car was in the middle lane and one in the inside lane, or one in the middle lane and one in the outside lane. There were two independent witnesses: O’s front seat passenger (F) and the driver of the car behind B’s (L). The expert witnesses could not tell which car was in which lane prior to the accident. At the hearing two scenarios were canvassed as to how the accident occurred. The judge preferred B’s expert’s view, which supported the first scenario. L’s evidence, which the judge broadly accepted, was also mostly consistent with that scenario, and supported B’s evidence that he had been in the middle lane. However, the judge found that the accident had occurred in a third scenario uncanvassed at the hearing, and that O was solely responsible for the accident. He did not ask the experts or parties to address that third scenario. O submitted that the judge had erred in finding that there had been a third and uncanvassed scenario that was inconsistent with both scenarios canvassed at the hearing, and in deciding what B’s expert’s view of that scenario would have been without asking him. B submitted that it had not been necessary for the judge to seek the experts’ views where L’s evidence confirmed B’s, and their view was determinative of which lane B had been in.    Appeal allowed. (1) It was open to a judge to decide that a road traffic accident had happened differently from how the eyewitnesses thought it had, but he could not come up with a new scenario without at least indicating that he was minded

to do so. Following such an indication, a judge would likely be asked to hear new evidence. The judge had erred. (2) There would be no point in interfering with the judge’s decision if it would make no difference to the outcome. It was for the respondent in such a situation to show that it would make no difference. B had not satisfied the court of that. It was clear from new experts’ reports that B’s expert would not have given his unqualified agreement to the scenario found by the judge. Contrary to B’s submission, the judge did need the experts’ help: he was faced with two independent witnesses, namely L and F, who had said opposite things. The judge’s third scenario needed consideration by the experts. (3) There would have to be a new trial.

MIB –Accidents abroad Bloy v Motor Insurers’ Bureau Court of Appeal (Civil Division) 29 November 2013 [2013] EWCA Civ 1543; When a United Kingdom resident was injured in a road traffic accident in another Member State caused by an uninsured driver resident in that state, the UK compensation body could not limit the victim’s compensation to the maximum amount payable in the other Member State. The appellant (M) appealed against a High Court decision (Unreported January 11, 2013) that the compensation payable to the respondents (B), two United Kingdom residents who were injured in a car crash in Lithuania, was to be assessed in accordance with English, rather than Lithuanian, law. The accident had been the fault of a Lithuanian national whose car insurance had lapsed. As the UK compensation body for the purposes of Directive 2009/103 art.10(1), M was obliged by the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003 reg.13 to pay compensation where a UK resident had been injured in a car accident in another Member State caused by an uninsured driver. Pursuant to art.24 of the Directive, it could then claim reimbursement from the compensation body in the other Member State in accordance with an agreement in 2002 between the compensation bodies. However, under Lithuanian law, the liability of the M’s Lithuanian counterpart was capped at €500,000. On the preliminary issue that thus arose before the High Court, M argued that it was liable to pay B compensation assessed in accordance with Lithuanian, rather than English, law and so its liability was likewise capped; but even if English law applied, the Regulations, on their proper interpretation, limited its liability to the maximum recoverable under Lithuanian law. In respect of M’s first argument,

the judge followed the decision in Jacobs v Motor Insurers Bureau [2010] EWHC 231 (QB), [2010] 1 All E.R. (Comm) 1128 that English law should apply; and whilst the Court of Appeal in that case had not considered the second argument, the judge applied its decision to the facts of the instant case. M appealed and submitted that (1) Jacobs was not applicable; (2) under English private international law, the cap on its liability was a matter of substantive law and thus governed by Lithuanian law as the lex causae, rather than a matter of procedure and thus governed by English law as the lex fori; (3) the imposition of the cap on the liability of the Lithuanian compensation body derived from European Union law as the Directive and its predecessor motor insurance directives, the 2002 agreement and the Regulations had to be read together so as to produce a coherent scheme; (4) the High Court should have made a preliminary reference to the European Court of Justice. â&#x20AC;¨â&#x20AC;¨ Appeal dismissed. (1) Whilst the arguments in Jacobs and in the instant case were different, they had all been deployed in respect of the same critical question: whether the law applicable to the assessment of compensation under reg.13(2)(b) was to be assessed by reference to the law of the part of Great Britain where the injured party resided or the law of the place where the accident took place. The decision in Jacobs was that, subject to establishing the tortious liability of the culpable driver under the applicable law for the tort, reg.13(2)(b) was a deeming provision with all the consequences that followed, including that the assessment of compensation was governed entirely by the law of the relevant part of Great Britain. That precisely answered the preliminary issue in the instant case, Jacobs applied (see para.44 of judgment). (2) Regulation 13(2)(b) deemed the accident to have occurred in England and that left no room for Lithuanian law at all in the assessment of compensation. But in any event, the cap was properly classified as procedural and therefore governed by the law of England and Wales. It was a simple monetary limit on recoverable compensation and was to be distinguished from rules of substantive law which, for example, excluded certain kinds of damage or required a certain causal connection or related to remoteness, Harding v Wealands [2006] UKHL 32, [2007] 2 A.C. 1 applied (paras 46, 51).

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(3) Whilst the 2002 agreement had been entered into pursuant to Directive 2000/26 art.6(3), the parties to it were purely private bodies. The agreement was, therefore, neither legislation nor an agreement between Member States. It was a purely private agreement between insurance industry bodies. The motor insurance directives had not empowered such bodies or such an agreement to impose on the governments of Member States limitations on the liability of insurers and, hence, Member States where such governments wished to provide for greater compensation for victims of traffic accidents than the minimum amounts specified in the directives (paras 59). (4) There was no advantage to be obtained from an ECJ reference because the critical question in the instant case was the meaning of reg.13(2)(b) of the Regulations, rather than art.24 and art.25 of the 2009 Directive (para.70).

Pre-Action Disclosure Smith v Secretary of State for Energy and Climate Change Court of Appeal (Civil Division) 05 December 2013 [2013] EWCA Civ 1585 On an application for pre-action disclosure, there was no requirement for a claimant to provide sufficient evidence to establish a prima facie case in order to cross the jurisdictional threshold. The appellant (S) appealed against a decision refusing pre-action disclosure from the respondent secretary of state. S was aged 65 and had been employed for 30 years by the National Coal Board (N), mostly underground. He asserted that he had suffered hearing loss because N had failed to take adequate steps to protect him from the damaging effects of noise and, in particular, that he had never been provided with hearing protection. The secretary of state was N’s statutory successor. S obtained disclosure of his work medical, and personnel records, but requested further disclosure of documents which might help to establish the levels of noise in various pits where he had worked, and N’s contemporary knowledge of those levels and the consequent risks. The secretary of state refused. S’s application for disclosure under CPR r.31.16 was initially granted by a district judge, but then refused on appeal, on the ground that S had failed to provide evidence that was more than merely speculative. S submitted that the judge below had been wrong to hold that S had been required to establish an “arguable” or “prima facie” case in order to establish the jurisdiction for an order. The secretary of state contended that S had provided inadequate evidence to mount a claim, the bare minimum being a screening audiogram or a medical opinion.

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Appeal allowed. The judge had been wrong to find that CPR r.31.16(3)(a) and r.31.16(3)(b) prescribed any kind of jurisdictional threshold of arguability, Kneale v Barclays Bank Plc (t/a Barclaycard) [2010] EWHC 1900 (Comm), [2010] C.T.L.C. 233 overruled in part (see paras 26-29 of judgment). However, the same issues needed to be addressed under the second part of the test, that relating to the court’s discretion. The language of “arguability” should be avoided, particularly where proceedings had not yet started. The question should rather be whether the claimant had shown some reason to believe that he might have suffered a compensatable injury and, if so, with what degree of likelihood, Black v Sumitomo Corp [2001] EWCA Civ 1819, [2002] 1 W.L.R. 1562 followed (para.30). It was advisable that potential claimants provided fuller evidence than in the instant case where, although S had provided very little, the district judge had correctly exercised his discretion by allowing the application without the need for an audiogram or a medical opinion. There was no dispute that the burden of disclosure on the secretary of state had not been too onerous (paras 34-37, 39).

Limitation Schumann v Wasbrough Chinnock v Rea Queen’s Bench Division 29 November 2013 [2013] EWHC 3730 (QB); Claims in professional negligence brought against a firm of solicitors and a barrister in 2010 and 2012 respectively were statute-barred as the claimants had actual knowledge in 2001 that the loss of their medical negligence claim against an NHS trust was attributable to the allegedly negligent advice given in conference. On the evidence, there was no negligence on the part of the solicitors or the barrister. The court was asked to determine preliminary issues arising in claims by the claimant mother (M) and father (F) for damages for professional negligence against the defendant firm of solicitors (W) and a barrister (R). M had instructed W and R to advise her in relation to a potential claim against an NHS trust for wrongful birth. Their daughter (D) had been born in 1998 with a serious chromosomal abnormality and had died aged 11 years. Throughout her pregnancy M had maintained that she would terminate the pregnancy if there was any risk that her child had disabilities. She had numerous scans and tests and was consistently told that the risk was low. In April 2001 M issued a claim form against the NHS trust for wrongful birth on the basis that it had been negligent in her care and in carrying out antenatal tests and scans. Following a conference in July 2001 with W, R and several experts, M was advised that her claim should not proceed. M and F issued proceedings in 2010 against W claiming that, contrary to their advice, there was a good claim against the NHS trust, and issued proceedings against R in 2012. The issues for determination were

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(i) whether the claims against W or R were statute-barred; (ii) whether W or R owed any contractual or tortious duty to F; and (iii) whether W or R had acted in breach of duties owed to M or F. M and F submitted that they did not have the requisite knowledge to bring a claim against W or R until 2009 when F’s solicitors alerted him to the possibility of such a claim.    Claims dismissed. (1) The primary limitation period expired six years after the claim against the NHS trust lapsed in August 2001. The provisions of the Limitation Act 1980 s.14A did not assist M and F because, as of August 2001, when the validity of the claim form expired, they knew that the claim was not being pursued and that they would not be obtaining damages from the NHS trust. That was material knowledge about the damage for the purposes of s.14(6)(a). M and F knew the reason the claim had not been pursued was because W and R had advised them not to pursue it at the conference in 2001 which they knew was the last chance for the claim to proceed. M’s view was that she was dumbfounded that the NHS trust had not diagnosed D’s disability before birth. In those circumstances she knew that the loss of the claim was attributable to the allegedly negligent advice given in conference. That was actual knowledge that the damage was caused by the act or omission in question for the purposes of s.14A(8), Haward v Fawcetts (A Firm) [2006] UKHL 9, [2006] 1 W.L.R. 682. Section 14A(9) made clear that M and F could not rely on the fact that they did not know that the advice was negligent to extend time. The fact that F found out that he might bring a legal action against W and R in 2009 was not knowledge that was required for the purposes of s.14A. The action was statute-barred (see paras 63-67 of judgment). (2) There was no contractual duty owed to F. He did not make any payments to W nor did he have the benefit of any legal aid funding. There was no assumption of responsibility to F on the part of W or R. It would not be fair, just and reasonable to impose a duty of care on W or R to advise F as there was nothing to justify the imposition of such a duty, Whitehead v Searle [2008] EWCA Civ 285, [2009] 1 W.L.R. 549 considered (paras 69, 71-72). (3) There was no negligence on the part of either W or R in relation to the questioning of experts at the conference in 2001 and no criticism could be made of them for allowing experts to attend by telephone. There was no lack of effort by W or R and they had done all they could have been expected to have done in deciding whether M had a viable claim for wrongful birth. There was no breach of duty by W or R (paras 75, 77, 79, 84).

Employers Liability - Foreseeability Moncrieff v Cooper Court of Session (Outer House) 21 November 2013 [2013] CSOH 180; 2013 G.W.D. 40-766; An employee failed, in his action of damages against his employer for loss sustained by him as the result of the manner in which the chief executive had dealt with him during his absence from work, to prove that it was or should have been reasonably foreseeable that the manner in which the chief excecutive corresponded with him during an absence from work would render his pre-existing mental ill health more chronic, and decree of absolvitor was granted. An employee (M), aged 63, raised an action of damages against his employers (W) for loss sustained by him as the result of the manner in which W’s chief executive (C) had dealt with him during his absence from work. M was employed by W from 24 February 2002 until his resignation on 9 January 2007. In approximately the year preceding mid-2006, M had suffered a series of distressing events affecting family members. On 25 May 2006, as part of W’s disciplinary process, M had been called to a counselling interview at which his work performance had been criticised, and on receipt of the file note of that interview, M had become manifestly depressed, had been certified as unfit for work and had never returned to his employment with W. M claimed that in the period from approximately 4 July 2006 to his resignation, C, in the knowledge that M was depressed and anxious, had exacerbated his mental ill health by conducting a course of correspondence with him, in particular three letters dated 16 and 29 August and 19 September 2006 relating to his return to work, the tone and content of which had caused his condition to become more chronic.   Decree of absolvitor granted. (1) On the evidence, M had proved that as a consequence of his receipt of C’s letters, his condition had been exacerbated in that it had become more chronic, however, it was clear that the letter of 16 August was a response to serious matters, raised by M himself, which, considered from the perspective of a responsible employer, required to be addressed and the letter was, viewed from an employer’s perspective, appropriate in its terms, as was the letter of 29 August, and in relation to the letter of 19 September, viewed objectively, it was a request for a meeting, the only purpose of which was to be a discussion of M’s prospects of returning to work, and it was appropriate for W to write to M in order to be informed of his likely return. (2) At the time of writing the letters, C knew that M had been suffering from anxiety caused by family problems and that he had been diagnosed with depression, and the letters of 16 and 29 August were direct responses to specific letters written by M and his wife to C. Moreover, in the written exchanges, M was an active correspondent who initiated the highlighting of issues which a

responsible employer required to address, and he expressed himself in assertive and even combative terms. The letters comprised examples of correspondence which were not such as would have been expected to have been troubling, even for a person suffering from depression, could not have been regarded as likely to have an adverse impact on recovery, and in relation to which Mâ&#x20AC;&#x2122;s reaction was beyond what would have been expected and was brought about by the effect of the condition from which he was already suffering. (3) The letters were unremarkable in their terms and were what would be expected from a responsible employer acting as a lay person without the benefit of informed psychiatric experience and they could not have been expected to produce the reaction which had in fact occurred; M had failed to prove that it was or should have been reasonably foreseeable to C that the manner in which she wrote to him would render his condition more chronic, and it was not persuasive that by writing the letters Câ&#x20AC;&#x2122;s actions were in breach of the duty of care owed to M. Opinion, (1) that had the court been required to attach weight to what W would otherwise have done, only a full retraction of the criticism set out in the counselling interview file note would have ameliorated the situation; (2) that had the court been required to consider patrimonial loss, any such loss suffered by M would have ceased when he commenced employment with another employer in May 2007.

Duty of Care PBD v Chief Constable of Greater Manchester Queenâ&#x20AC;&#x2122;s Bench Division 18 November 2013 [2013] EWHC 3559 (QB The police did not owe an individual, who was about to be charged with a criminal offence, a duty of care in respect of psychiatric loss. On that basis, police officers had not acted in breach of a duty of care where they had mistakenly disclosed the true identity of a former criminal gang member, thereby potentially putting him in danger, which had led to his entering witness protection. The first claimant (P) sought compensation from the defendant police force for an alleged breach of a duty of care, and the second claimant (Q) sought compensation in respect of an alleged promise that she would be compensated for giving up her job in order to enter witness protection. P was a former member of a criminal gang. After being shot by a criminal associate in 2003 he had decided to cooperate with the police and make a new start. He was imprisoned in 2004 and released in 2009, whereupon he changed his name. In 2010, P attended a police station to answer bail in connection with an historic money laundering offence where he saw one of his old associates. P was charged with the offence and both his new and old name were listed on the charge sheet. P and Q, his partner, met

with witness protection officers; P went into witness protection in January 2011, and Q in June 2011, having resigned from her job. P argued that the police had acted in breach of a duty of care owed to him in revealing his true identity to his former criminal associates, with the consequence that he had had to enter the witness protection programme. He contended that he had suffered depression because of his separation from Q, which had been unreasonably long because of delay caused by the police. Q submitted that the witness protection officers had promised that she would be paid £1,500 a month for six months in compensation for having to give up her job and enter the protection programme.    Judgment for defendant. (1) P’s claim that there was a special relationship of proximity between the parties so that it was fair, just and reasonable to impose a duty of care was much weaker than that advanced in An Informer v Chief Constable [2012] EWCA Civ 197, [2013] Q.B. 579 because:

(a) P was neither a witness in current proceedings nor an informant;

(b) in April 2008, P had been expressly told that the police were not assuming

responsibility for his safety;

no hesitation in rejecting P’s claim that there was a duty of care owed in

respect of psychiatric loss; no good reason had been advanced to show

why his claim for his psychiatric loss could succeed when the claim in An

Informer had failed for not dissimilar loss, An Informer considered. The police

did not owe a duty of care to witnesses and victims, and so a fortiori they

did not owe such a duty to those charged or about to be charged, such

as P, Van Colle v Chief Constable of Hertfordshire [2008] UKHL 50, [2009] 1

A.C. 225 followed (see paras 35-37 of judgment).

(2) There were various matters which undermined Q’s evidence and which individually and cumulatively meant that the court could not accept that her evidence on the alleged promise was credible. P’s evidence in support of Q’s claim was also neither reliable nor credible. The court accepted the evidence of the witness protection officers and the police that Q was not offered compensation (paras 105-108). (3) (Obiter) Even if the police had owed P an appropriate duty of care in relation to the psychiatric loss suffered by him, there had been no breach. P’s alleged psychiatric injury was not a reasonably foreseeable consequence of the disclosure of his identity, but a consequence of Q’s belated decision to seek witness protection 19

and of the need for her to provide the requisite financial information before entering the programme. Even if there had been a breach, the court was satisfied that P was at all times up to and after his release from prison keen to enter witness protection, and there was no question of him having been forced into witness protection or of there being a causative link between the alleged breach and P’s entering the programme. Further, the alleged loss claimed by P was not suffered as a result of the police’s alleged breach of duty. Any delay in allowing Q to join P in witness protection was not a consequence of the police’s alleged breach of duty or their fault. The depression P claimed to have suffered as a result of his separation from Q was in no way connected to the alleged breach of duty (paras 42, 44, 48, 56, 61-62, 65-66).

Limitation Davidson v Aegis Defence Services (BVI) Ltd Court of Appeal (Civil Division) 11 December 2013 [2013] EWCA Civ 1586 A judge had been entitled to dismiss an application to disallow the three-year time limit on a personal injury claim pursuant to the Limitation Act 1980 s.33 on the basis of the prejudice caused to the defendant by the delay. The appellant (D) appealed against the dismissal of his application to disallow the three-year time limit pursuant to the Limitation Act 1980 s.33. D had brought a personal injury claim against the respondent employers (X) following a back injury sustained during a medical training course. His claim form was not served in time. D instructed new solicitors and a new claim form was issued and served together with an application to disallow the three-year time limit pursuant to s.33. The judge dismissed the application on the basis that unfairness had been caused to X by a delay in notification of the claim, which had been aggravated by D’s failure to commence proceedings within the limitation period and exacerbated by a loss of documents after they had been moved to a different location. He stated that the prejudice to D in having to pursue a claim against his former solicitors was slight by comparison. The judge set out the guidance in Cain v Francis [2008] EWCA Civ 1451, [2009] Q.B. 754 and cited dictum in McDonnell v Walker [2009] EWCA Civ 1257, [2010] C.P. Rep. 14 that it should not be easy for a claimant to commence a second action and obtain a disapplication of the limitation period. D submitted that (1) McDonnell was inconsistent with Aktas v Adepta [2010] EWCA Civ 1170, [2011] Q.B. 894 which was to be preferred; (2) the judge failed to take into account that any claim against his former solicitors would have to be confined to a loss of the chance of success against X and would be an unsatisfactory way of litigating his claim; and (3) the judge was wrong to find that there had been any prejudice to X arising after

the expiry of the three-year limitation period.   Appeal dismissed. (1) There was no conflict between McDonnell , which stated that it should not be easy to obtain a disapplication of the time limit and Aktas , which stated that it should not be too difficult either, McDonnell and Aktas considered. The judge correctly followed the guidance in Cain which was of most use to first instance judges who were asked to disapply the three-year time limit in personal injury cases, Cain followed (see paras 10, 20 of judgment). (2) The judge was fully aware that a claim against D’s former solicitors would be based on a loss of chance of success in the original proceedings. Litigation against a claimant’s former solicitors was second best but it was something which a judge could, and usually should, take into account as best he could, Donovan v Gwentoys Ltd [1990] 1 W.L.R. 472 followed (para.13). (3) All of the matters relating to prejudice raised by D had been considered by the judge as well as the well-known fact that memories became less reliable, the staler an action became. The judge was entitled to conclude that there had been prejudice caused to X after the expiry of the limitation period (paras 16, 18).

Section 2 February 2014

Litigation friends M v Lambeth LBC Queen’s Bench Division 23 January 2014[2014] EWHC 57 (QB); The court refused to discharge a father’s appointment as litigation friend for his son, even where the father had stated that he was no longer prepared to cooperate with medical experts. The best course of action was for the claimant’s legal representatives to seek to negotiate settlement on the basis of the existing medical and other evidence. The court was required to determine whether a father (F) should continue to act as litigation friend for his son (C) and whether C’s proceedings for personal injury should be settled. C had fallen from the window of a block of flats and suffered serious injuries. He was aged four at the date of the accident. By the date of the instant hearing he was aged approximately 14. C’s medical expert stated that he had probably suffered a brain injury and there was “significant brain impairment” caused by the accident. However, the defendant’s experts stated that C’s impairments “were consistent with his pre-injury functioning” and on balance were probably “secondary to his inherent pattern of development and may have been contributed to by social and cultural factors”. F was no longer prepared to co-operate with medical experts and was not amenable to putting recommended support in place for C. F had instructed C’s solicitor to settle C’s claim as soon as possible. C’s solicitor sought the court’s guidance upon whether F’s appointment as litigation friend should be terminated, and whether the case should be settled even though it remained unclear whether C had suffered a brain injury, and what his disabilities might be in the future.    Judgment accordingly. Any settlement would require the approval of the court, but it would not be appropriate for a claimant’s legal advisers to pursue a negotiated settlement unless there was a reasonable prospect of the court approving it. It was probable that if a new litigation friend were to be appointed C’s parents would remain as unco-operative as they currently were, and that would not assist in advancing C’s best interests. Having considered the evidence, and C’s counsel’s thoughtful submissions, the best course in the circumstances was for C’s legal

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representatives to seek to negotiate settlement on the basis of the existing medical and other evidence, as instructed by F (see paras 13-17 of judgment).

Clinical Negligence C v North Cumbria University Hospitals NHS Trust Queen’s Bench Division 23 January 2014 [2014] EWHC 61 (QB) A midwife had not acted negligently in deciding to administer a second dose of a drug used to induce labour where the mother went on to suffer fatal injuries and the child to sustain permanent cerebral injury. The claimant child (C), acting by his father (F) and litigation friend, sought compensation for personal injury he had sustained as a result of the defendant NHS trust’s alleged negligence in the handling of his birth. C’s mother (M) had been admitted to hospital for the induction of labour for C’s delivery. The midwife (X) gave M a dose of Prostin, a drug used to stimulate the natural contractions of the uterus, and seven-and-a-half hours later administered a second dose. About five hours later, M experienced substantial discomfort and in a very short time her cervical dilation progressed from 2cm to 9cm. She was urgently transferred to theatre and C was delivered by forceps. M’s uterus had ruptured. She suffered from a cardiac arrest and ultimately died a few days later. C was asphyxiated at birth. As a result he sustained hypoxic cerebral injury and developed microcephaly and dystonic athetoid cerebral palsy. It was common ground that M’s death was due to negligent post-natal care and that C’s condition was due to the administration of the second dose of Prostin. The trust admitted liability for M’s death, but contested the claim for damages which alleged negligence in the administration of the second dose of Prostin. The issue was whether it was negligent for X to administer the second dose.   Judgment for defendant. The relevant question was whether no reasonably competent midwife would have acted and exercised her judgment in the way in which X had, Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582 followed. The decision taken by any midwife would be based upon an all-round assessment of the evidence which derived from the traces of foetal heart rate, the mother’s level of discomfort, the level of contractility, the evidence of abdominal palpitation and the degree of dilation from a vaginal examination, and the mother’s history of childbirth. It was inevitable that there might be a considerable measure of judgment based in any decision. X’s decision to administer a second dose was not automatic and unthinking. It was not fair to say that the clinical notes showed that X intended to administer the second dose regardless. The process which led to the administration of the second dose entailed a series of periodic assessments by successive midwives of all the factors which would ordinarily go towards a decision 24

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Dr Christopher R Plowman

BSc MSc Clin Psych D CPsychol AFBPsS Consultant Neuropsychologist I specialise in the neuropsychological assessment of the cognitive, emotional and behavioural consequences of Acquired Brain Injury in adults following road-traffic accidents, assaults, anoxia, or exposure to toxic substances. I have experience in the assessment of disorders of mood, neurotoxicology, epilepsy, drug and alcohol misuse, tumours, HIV, PTSD, and in the areas of Personal Injury, Occupational Health and Clinical Negligence.

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I am a recognised Expert by Cardiff University Law School and Bond Solon, and I am trained in the legal aspects of report working, giving evidence in Court and the responsibilities of a Single Joint Expert. I have provided medico-legal reports in Personal Injury and Clinical Negligence cases for over ten years.

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Investigations include: Personal injury Slips, trips and falls Road traffic accidents Engineering Fraud Highways Contamination assessment Escape of water, fluids and gas Railway accidents Fire and explosion

as to whether, and if so when, to give a second dose of Prostin. It was a routine assessment but not automatic, unthinking or predetermined. There was no basis on which to conclude that M was in fact experiencing a level of pain that materially outstripped that recorded in the clinical notes. Further, the level of risk associated with uterine rupture following the administration of Prostin was exceedingly low, and that was a material and important consideration. The fact that the administration of the second dose turned out to be catastrophic was irrelevant: when X came to administer the dose she, like any other trained midwife, would have known that the risk of rupture was very low, and she was entitled to act accordingly. Insofar as there was a correlation between risk and the degree of caution implied as to the practical application of the drug, the fact that the risk was very low clearly had to be seen as part of the reasoning which leaned towards the conclusion that X’s decision was not unreasonable. X’s decision was in accordance with the relevant medical guidance in terms of the time between the doses and the state of M’s labour at the time of the administration of the second dose. A midwife would take into account the mother’s history, and M was not in an especially vulnerable category. When the second dose was administered, the level of uterine activity and M’s experience of pain when combined with other factors were not such as to identify a particular risk of an unacceptable level associated with a second dose; nothing jumped out of the situation at that time which should have alerted X or others that there was a sudden need to adopt a highly cautious approach. X had also not acted negligently in failing to seek a second opinion from an obstetrician on whether to administer a second dose. In those circumstances, X had acted within the bounds of reasonable judgment and C’s claim had to fail (see paras 21, 80, 82-88 of judgment). Jones v Portsmouth Hospitals NHS Trust Queen’s Bench Division 23 January 2014 [2014] EWHC 42 (QB A claimant who had undergone a through-knee amputation as a result of necrotising myositis in her thigh failed to prove there had been a negligent delay in getting her to theatre; that remedial surgery carried out before the amputation had been inadequate; or that she had been given negligent advice as to the available reconstruction options leading to an unnecessary amputation. The claimant (J) brought an action for damages alleging clinical negligence against the defendant NHS Trust following the amputation of her lower leg. J had been admitted to hospital at 10.25 on July 20, 2008 with excruciating pain in her thigh which was later diagnosed as necrotising myositis. At that time, she had been suffering from a severe sore throat for about three days. At 11.30, J’s clinical notes

indicated that she was able to weight bear. The possibility of an infective process was noted at 19.20. However, there was no mention of J’s sore throat in her notes until 21.00. At 01.00 on July 21, the decision was taken to perform surgery but no theatres were available at that time. The first mention of a dangerous infection was made at 03.05. A fasciotomy was performed at 03.20 on July 21 to decompress the thigh, but no debridement was carried out. According to a note made at 20.25 on July 21, J was made aware that she needed further surgery and that an amputation might be necessary. A second operation was carried out at 22.10 on July 21 to debride dead tissue. Between July 28 and August 4, when J gave her consent to amputation, there were discussions involving J and her family about the options. J was confused and delirious at times during that period. She was advised that amputation would be preferable to limb salvage because of the problems of muscle reconstruction. Her clinical notes recorded that the family were in favour of an amputation as they did not think that her level of functioning would be as good with a fused leg. Her notes on August 4 indicated that she appeared to have accepted the need for amputation. A through-knee amputation was performed on August 5. J contended that

(1)

there had been a negligent delay in getting her to theatre;

(2)

the remedial surgery carried out at the first and second operations had been

inadequate;

(3)

she had been given negligent advice as to the available reconstruction

options once the necrotising myositis had been overcome, leading to an

unnecessary amputation.

Judgment for defendant. (1) On the balance of probabilities, J had not reported to the doctors on her arrival at hospital on July 20 that she was unable to weight bear without pain. In any event, an inability to weight bear would not have assisted the diagnosis or led to an earlier decompression procedure. If J’s sore throat had been mentioned earlier it would have been written in her notes, and the medical experts agreed that the mention of a sore throat would have made no difference to the management of J’s condition because there would have been nothing to link it with necrotising myositis. J’s underlying condition was very rare and her presentation was not specific. Accordingly, there had been no negligent delay in getting her to theatre (see paras 112-113, 115-116, 121-122, 132 of judgment). (2) On the evidence, it was not obvious that necrotic tissues were present at the first operation. Although the surgeon had judged the muscle to be “dubious”, he had 27

acted reasonably in retaining it. There was no negligent delay in not undertaking the second operation until 22.10 on July 21. The timescale between the first and second operations was reasonable, as a failure to stabilise her before the second operation might have been life-threatening (paras 141-143). (3) The consent form signed by J indicated her final consent to amputation at 16.31 on August 4 and also recorded that she had the right to change her mind even after signing the form. On the basis of the clinical notes, the evidence of the consultant orthopaedic surgeon and the consent document, a discussion had been held with J as to the pros and cons of the options and she was fully informed of those options at a time when she was in a fit state to understand the implications of what she was being told. Accordingly, there was no negligent advice as to available reconstructive options leading to an unnecessary amputation (paras 154-159).

RTA Cridland v Stagecoach (South) Ltd Queen’s Bench Division 22 January 2014 Unreported A bus company was not liable for damages for personal injury of a passenger following a road traffic accident. The accident had been caused by the anti-social behaviour of an unidentified youth riding a push scooter in front of the bus, which had caused the driver to make an emergency stop. The claimant (C) claimed damages for personal injury arising from a road traffic accident. C had been a passenger on a double deck bus being driven by a driver (W) who had been employed by the defendant (S). Ahead of the bus and heading in the same direction was a youth (Y) who was riding a push scooter. When the bus was a few feet from Y it braked violently and C was thrown forward suffering serious injuries. S maintained that W had seen Y ahead of him, maintained observation and when he was a car length away slowed down to 11 mph, and could not overtake Y because of an oncoming vehicle. He sounded his horn so that Y could move aside and that his intention was to make Y aware of his presence. Y’s unexpected reaction was to make a gesture which appeared to be to throw his scooter into the air and motioning to throw it at the bus’s windscreen; that W’s action in braking was to avoid that happening. Y then carried on and disappeared from the scene. Evidence was given by a number of passengers and there was a CCTV recording from the bus. C himself was too unwell to give evidence and had no memory of the accident. Evidence was given on behalf of C by his partner and litigation friend (D) who had also been on the bus. D’s evidence was that before and after the sudden braking W had made abusive and obscene gestures at Y and had allowed himself to become

EXPERT WITNESS Mr David Griffiths MA, MB BS, FRCS, FRCS(ORTH) Consultant Orthopaedic Surgeon University Hospital of North Staffordshire I am a consultant orthopaedic surgeon with 20 years experience of preparing medical reports and appearing as an expert witness in court. I prepare about 250 personal injury reports and 10 to 15 alleged medical negligence reports per year. Approximately 50% of my personal injury referrals are from claimant’s solicitors, 30% from defendants and 20% as a single joint expert. I have attended court as an expert witness on many occasions. The waiting time for a medico legal appointment is four to six weeks, although urgent appointments within one to two weeks can usually be given on request. Provided that all the necessary documentation is available, all personal injury reports are prepared and sent within two days of the client's appointment. Areas I Cover include: London, The Midlands and Cumbria

Email: annie_griffiths@hotmail.com Phone: 01782 744118 (Secretary) Web: www.orthopaedicmedicolegal.co.uk

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cross with Y. W gave evidence on behalf of S, along with a number of other witnesses who had been passengers on the upper deck. The trial was confined to liability.    Claim dismissed. Where D’s evidence conflicted with W’s, W’s evidence was preferred. S’s witnesses evidence was not internally inconsistent. W’s evidence was consistent with that of the other witnesses whose view was that the accident was Y’s fault. None of those witnesses criticised W. If W had not sounded the horn Y would have carried on. Y’s refusal to get out of the way was clear anti-social behaviour. S had employed W for seven years; at the date of the accident he was experienced and properly trained. W was a credible witness and had a good personnel record. S’s other witnesses were all on the upper deck of the bus and had a good view of the accident. Y aggressively swung himself in the air bringing the scooter near the bus’s windscreen. W’s reaction in those circumstances could not be faulted. From the CCTV footage W’s gestures were not provocative or abusive, in any case Y did not see them. It was the honking of the horn and not the proximity of the bus that caused Y to make his gestures. W was aware of the oncoming vehicle which was visible from the CCTV evidence. Y was aware of the bus but chose to remain in the road. His reaction was not one of alarm but a threat of violence. No reasonable driver could have predicted that Y would have reacted in the way he did. W’s action was a reasonable reaction of a reasonable bus driver. W was not speeding and at the critical point he slowed down and braked. It was Y’s gesture that caused him to break and he had no alternative but to break. W had not allowed himself to become cross with Y. The accident was caused by Y’s anti-social behaviour in making the gesture that he made.

Mesothelioma Haxton v Philips Electronics UK Ltd Court of Appeal (Civil Division)22 January 2014 [2014] EWCA Civ There was no reason of principle or policy which deprived a widow, who had contracted mesothelioma from contact with her husband’s work clothes, from recovering common law damages which represented the amount of loss she could not recover in a statutory cause of action, as the damages for future dependency in that action had been curtailed by her own shortened life expectancy. The appellant widow (H) appealed against a decision in a personal claim for damages for negligence and breach of statutory duty against her husband’s former employer (P), that her dependency claim was not a recoverable head of damage. H’s husband had passed away as a result of contracting mesothelioma through exposure to asbestos as P’s employee for over 40 years. Subsequently H too, whom P had never employed, was diagnosed with mesothelioma; she had 30

come into contact with asbestos when she washed her husband’s work clothing. Proceedings in H’s capacity as widow and administratrix of her husband’s estate under the Law Reform (Miscellaneous Provisions) Act 1934, and also as a dependant under the Fatal Accidents Act 1976 were settled by consent, and damages for loss of dependency were based on H’s remaining life expectancy being 0.7 years due to the mesothelioma. H had also issued proceedings in her own right for damages for negligence and breach of statutory duty. Liability was again conceded and damages agreed at £310,000, but recovery was denied in relation to H’s future dependency claim; H argued that but for P’s negligence, her life would not have been cut short and the assessment of her dependency claim in the first action would have been significantly greater. The issue was whether H’s common law dependency claim in her own right was a recoverable head of damage. H submitted that it was in principle legitimate to allow as a head of damage a diminution in value of a chose in action resulting from a negligent act.    Appeal allowed. (1) There was no reason of principle or policy which deprived H from recovering damages which represented the loss she had in fact suffered as a result of the curtailment of her life by P’s admittedly negligent action. The 1976 Act conferred a statutory right to recover for the loss of dependency and in H’s claim under that Act she cannot recover more than her actual loss; but there was no reason why the diminution in the value of that right resulting from P’s negligence could not be recovered as a head of loss in H’s personal action. That did not interfere with the principles governing the payment of compensation under the legislation; they were left wholly unaffected. H’s claim was a common law claim for damages for loss of dependency; it was one for diminution in the value of a valuable chose in action, a statutory right. There was nothing in the language of the 1976 Act or the authorities which suggested that there was any special attribute distinguishing that particular chose in action from any other. That head of loss was recoverable in law. Moreover, in the same way that a loss or diminution of a contractual right might be recoverable even though it was not directly suffered by a claimant, a fortiori that should be the case where, as in the instant case, the reduction in the dependency compensation was a loss actually suffered by H when her dependency claim under the Fatal Accidents Act was settled. The fact that the source of that right was statutory and not contractual was not a material distinction, Fox v British Airways Plc [2013] EWCA Civ 972, [2013] I.C.R. 1257 followed (see paras 13-15, 20-21 of judgment).

(2) H’s personal dependency claim was not too remote: it was reasonably foreseeable that a curtailment of life might lead to a diminution in the value of a litigation claim and if a claimant had such a claim, a wrongdoer must take the victim as he finds him. It had to have been foreseeable to P that H would have dependency rights which would be diminished as a result of its negligence, Lagden v O’Connor [2003] UKHL 64, [2004] 1 A.C. 1067 followed. H was entitled to an additional £200,000 (paras 22-24).

Section 3 March 2014

Duty of Care Personal Representatives of the Estate of Biddick (Deceased) v Morcom Court of Appeal (Civil Division)27 February 2014 [2014] EWCA Civ 182; An elderly homeowner who was having his loft insulated, and who had offered to stand with a pole underneath the hinged hatch door as a precautionary means of ensuring that it remained closed while the workman drilled the inside of it, was liable in negligence when he left his post and the workman fell through the loft aperture. His offer to help amounted to the adoption of a duty of care, which he was required to discharge carefully, even though the workman had neither relied on his help nor considered it necessary for his safety. The appellant personal representatives of the deceased (B) appealed against a judgment that his estate was liable to the respondent (M) in negligence. M crossappealed against a finding that he was two-thirds contributorily negligent. M, a multiskilled tradesman, had been seriously injured while fitting insulation in B’s loft. Entry to the loft was via a ladder through a hinged hatch door, which opened by being pulled downwards with a long pole. A hook in the pole could be used to lock the door. B, who was 80 years old, suggested that while M was insulating the inside of the hatch door, he, B, would stand underneath, keeping the door in the locked position with the pole to prevent the mechanism working itself loose from the vibrations of M’s drill. M thought that was a fanciful possibility, but agreed to B’s proposal. M fell through the loft aperture when B left his position to answer the phone. M’s primary case was that the hatch opened as a result of vibration. The judge rejected that claim. He also rejected the possibility that M had fallen on the door. He thought it most likely that the lock had not been fully in position and that M had overreached himself, applying a degree of force to a hatch door that was only partially supported. He concluded that if B had not involved himself in the work performed by M, there would have been no basis for a finding of negligence, but that he had brought himself into close proximity with M by virtue of his proposal. Leaving his position to answer the phone, B had failed to exercise his duty of care to the requisite standard and was liable to the extent of a third.

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The issues on appeal were

(i)

the cause of M’s fall;

(ii)

the alleged duty of care by B;

(iii) the extent of contributory negligence by M. It was submitted for B that the

judge had failed to consider that the accident could have been caused

simply by M overreaching himself, causing excessive weight to be transferred

through the screwdriver onto a fully secured hatch, and that as the judge

had considered an incomplete range of causal possibilities, the instant

court was free to re-determine the cause of M’s fall. It was also submitted

that the danger to which M had been exposed was that the hatch door

would not take his weight and would burst open, which was a danger that

did not arise from the limited extent of B’s involvement, and which would

have been obvious to an experienced workman.

Appeal dismissed, cross-appeal dismissed. (1) On the evidence, it was impossible to say that the judge had arrived at a conclusion regarding the cause of M’s fall which had not been open to him (see para.37 of judgment). (2) B had assumed responsibility, not for bearing M’s weight if he happened to fall on the hatch door, but for undertaking to ensure that the latch remained closed. In involving himself in a potentially hazardous activity, B put himself in a degree of proximity to M such that it was foreseeable that if he neglected his task, the hatch might work itself open and cause M to fall and suffer injury. It was fair and reasonable to find that a duty of care had arisen. Even though B’s concern had been vibration, and vibration had not been found to be the cause of the hatch opening, B had nevertheless chosen to abandon his post, which was a breach of his duty of care. While reliance was a prerequisite in economic loss cases, it did not matter that M had not relied on B’s input. Once B had undertaken to ensure that the hatch remained closed, he had a duty to perform that task carefully even if M did not see his role as an element in his own safety, Watson v British Boxing Board of Control Ltd [2001] Q.B. 1134, Wattleworth v Goodwood Road Racing Co Ltd [2004] EWHC 140 (QB), [2004] P.I.Q.R. P25 and Perrett v Collins [1998] 2 Lloyd’s Rep. 255 considered and Tomlinson v Congleton BC [2003] UKHL 47, [2004] 1 A.C. 46 distinguished (paras 39-55). (3) The judge’s reasoning for the apportionment of liability was entirely sound: B had been negligent in failing properly to perform the small task which he undertook, but M was principally to blame for the unsafe method of work which he chose to adopt (para.58).

Expert Evidence Wall v Mutuelle De Poitiers Assurances Court of Appeal (Civil Division) 20 February 2014 [2014] EWCA Civ 138; The Court of Appeal determined that, for the purposes of assessing the damages in a negligence claim which had been brought in England by a claimant who had been injured in a road traffic accident in France, the issue of which expert evidence the court should order fell to be determined by reference to English law, the law of the forum, rather than French law, the applicable law under art.15 of Rome II. The words “applicable law” in art.15 should be construed broadly to include any practices, conventions and guidelines which were regularly used by foreign judges in assessing damages under their law. The appellant insurance company (M) appealed against a decision ([2013] EWHC 53 (QB)) that, for the purposes of assessing the amount of damages payable to the respondent (W) for injuries that he had sustained in France, the issue of which expert evidence the court should order fell to be determined by reference to English law. W, who was English, had had an accident whilst on holiday in France with a car which was being negligently driven by a man who was insured by M in France. W was seriously injured and upon his return to England issued a claim naming M as the defendant. Liability was accepted and judgment was entered for W with damages to be assessed. W applied for permission to call multiple experts, as was customary in English litigation, unlike in France. The master ordered a trial of whether the issue of which expert evidence the court should order fell to be determined by reference to the law of the forum (English law) on the basis that it was an issue of “evidence and procedure” within Regulation 864/2007 art.1.3 (Rome II), or by reference to the “applicable law” (French law) because it was an issue falling within art.15. The judge concluded that it was clear that the question of what expert evidence the court should order, and in particular whether there should be one or more experts pursuant to CPR Pt 35, fell to be determined by reference to the law of the forum (English law) because it was an issue of “evidence and procedure” within art.1.3. M argued that, on the true construction of Rome II, the English court must arrive, as nearly as possible, at the amount of damages which the French court would have awarded if the action had been tried in France, and the best way to secure that outcome was to have a French-style single joint expert.    Appeal dismissed. (1) Nothing in Rome II mandated a court, trying a case to which a foreign law applied pursuant to Rome II, to award the same amount of damages as the foreign

court would. It could not be the case that Rome II envisaged that the law of the place where the damage had occurred should govern the way in which evidence of fact or opinion was to be given to the court which had to determine the case. An English court was ill-equipped to receive expert evidence given in the French manner for various reasons, including that: (a) the English rules of disclosure would not be the same as they were in every foreign country; (b) the English rules of evidence contemplated the giving of oral evidence by a procedure of examination-in-chief, cross-examination and re-examination of witnesses, and even if the author of a French-style expert report was prepared to submit to such a procedure, it would be meaningless to the extent that his report incorporated material outside his personal expertise; (c) in the reverse situation, a French court would think it unhelpful to be presented with English-style expert evidence in the form of multiple reports with the result that it had to choose between those reports without resort to its own method of dealing with expert evidence. It was inevitable that the same facts tried in different countries might result in different outcomes, and so it was not right that the English court had to strive to reach the same result that a French court would, let alone that evidence had to be given to the English court in the form of a French-style expert report. The judge was accordingly right to conclude that the issue of which expert evidence the court should order fell to be determined by reference to English law (see paras 11-15, 20 of judgment). (2) (Per curiam) In the context of Rome II, which was intended to have international effect, a narrow view of the words “applicable law” in art.15 was inappropriate. The words “applicable law” should be construed broadly and included practices, conventions and guidelines regularly used by foreign judges in assessing damages under their law. W was entitled to recover all heads of recoverable loss which were recognised in France. The judge assessing W’s non-pecuniary losses should have regard to the Dintilhac guidance and any prevailing tariffs for damages used in France to the extent that a French judge would (paras 24, 34, 38). (3) (Per Jackson, L.J.) The words “evidence and procedure” in art.1.3 should be given their normal meaning, and so the normal English procedure should be followed in determining the extent of W’s injuries and financial loss. Giving the words “evidence and procedure” their natural meaning accorded with the natural meaning of art.1.3. It was unrealistic and inefficient to expect courts to adopt the evidential practices of a different jurisdiction when determining questions of fact.

Accordingly, the court in the instant case should follow English evidential practices, including in relation to receiving expert evidence concerning the extent of W’s injuries and his financial loss (paras 40-43, 45).

Fatal Accident Claims-Service out of the jurisdiction Brownlie v Four Seasons Holdings Inc Queen’s Bench Division 19 February 2014 [2014] EWHC 273 (QB A claimant who was injured and whose husband was killed in a car accident while they were on a one-day sightseeing tour in Egypt which she had organised beforehand by telephone from England with the concierge at the hotel where they stayed was granted permission to serve the defendant Canadian international hotel company out of the jurisdiction as she had a strongly arguable case that it was the contracting party that had provided the tour and that the contract was made in England. The appellant (B) appealed against a decision that the court had no jurisdiction to try her claim and setting aside permission to serve the proceedings on the respondent Canadian hotel company (F) in Canada. B and her late husband, who were British and resident in the United Kingdom, had been staying in Egypt at a hotel which formed part of the hotel group carrying F’s name. During a sightseeing tour, the car in which they were travelling crashed, injuring B and killing her husband and his daughter. B had booked the tour by telephoning the hotel’s concierge before they left the UK, having referred to a brochure she had picked up on a previous stay at the hotel. B claimed that F was liable for her personal injuries and under the Fatal Accidents Act 1976; she also claimed under the Law Reform (Miscellaneous Provisions) Act 1934 as the executrix of her late husband’s estate. In a letter before action to F she sought pre-action disclosure of documents relating to the tour booking. F passed the request to the hotel in Egypt. Egyptian lawyers responded, asserting that the accident was caused by the car company and the driver only, and that the driver was never employed by the hotel, whose role had been merely to relay B’s request for a tour to the car company. B failed in her further attempts to obtain clarification from F as to what corporate entity or entities were involved. She issued proceedings and obtained permission to serve F in Canada. F applied successfully for that to be set aside and for a declaration that the court had no jurisdiction to try the claim. The master decided that it was clear that F did not own or operate hotels and in particular did not own the hotel in Egypt, and that B had contracted with the hotel not F for the tour.    Appeal allowed.

DrJoshua Joshua Adedokun Dr JoshuaAdedokun Adedokun Dr FCARCSI, FRCA, FFPMRCA FCARCSI,FRCA, FRCA,FFPMRCA FFPMRCA FCARCSI, Chronic Pain Expert Personal Injury Chronic PainExpert Expert Chronic Pain Clinical Negligence

Listed on the Register Adedokun extensive Listed on the UKUK Register of of Dr Dr Adedokun has has extensive Dr Adedokun hasthe clinical ListedanonAPIL UK Register of Expert Expert Witnesses, anthe APIL expert, clinical experience inextensive the Expert Witnesses, expert, clinical experience in experience in the management of various Witnesses, an APIL Member of Society of Expert expert, Member of management of various Chronic Member of Society of Expert management of various Chronic Chronic Pain Syndromes including Society of Expert Witnesses and Expert Witnesses and Expert Witness Pain Syndromes including Witnesses and Expert Witness Pain Syndromes including Institute.Witness Institute. persistent neck, back, neuropathic persistent neck, back, neuropathic or Institute. persistent neck, back, neuropathic or Complex Regional PainSyndrome Complex Regional Pain Dr Adedokun accepts instructions or Complex Regional Pain Adedokun accepts instructions Dr Dr Adedokun accepts instructions Syndrome (CRPS) especially Syndrome especially (CRPS)(CRPS) especially following personal from Claimants, Defendants and from Claimants, Defendants from Claimants, Defendants andand following personal following personal andand and occupational injuries. He also has as a Single Joint Expert. a Single Joint Expert. covers He covers as aasSingle Joint Expert. He He covers occupational injuries. He occupational injuries. alsoalso Negligence wide experience inHeMedical Manchester, Liverpool, Leeds, Manchester, Liverpool, Leeds, Liverpool, Leeds, experience in Medical Manchester, Birmingham has has widewide experience in Medical claims. Birmingham and London. Birmingham and London. Negligence claims. Negligence claims. and London. Other locations Domiciliary Other locations andand Domiciliary visits can be arranged. visits can be Other arranged. locations and Domiciliary visits

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: 01625523355 523355 TT: 01625 : 07885913912 913912 MM: 07885 David Bryson BSc(Anatomy) CertEd MIMI RMIP FHEA Personal Injury Photographer Senior Lecturer at the University of Derby • Published papers on personal injury photography • Presented nationally and internationally • Runs training courses on personal injury photography for other clinical photographers Qualified Clinical Photographer Over 30 years of experience covering personal injuries, clinical negligence, occupational injuries, and scarring cases. Based in the East Midlands for instructions. Available for lectures and training in the role of photography in personal injury litigation, by arrangement.

d.bryson@cladonia.co.uk | www.cladonia.co.uk 41

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(1) It was not appropriate for the court, on an application for permission to serve out of the jurisdiction or to set aside permission when given, to try the merits of the claim; yet the master had made findings of fact on issues that would have to be determined at any trial. Moreover, his findings as to the ownership and/ or management of the hotel and as to the party with whom B contracted for the tour were based on defective witness statements and/or were unsupported by evidence. There was no evidence that any company had been established in Egypt for the purpose of managing the hotel. Contrary to the master’s findings, B had a strongly arguable case that the other party to the contract for the tour was most probably an entity with whom the proprietor of the land and buildings had entered into agreements; agreements which were likely to have provided for a licence to use intellectual property including F’s logo and its name and for management and advisory services. The master had fallen into error (see paras 60-66 of judgment). (2) As to whether a contract was made by B with F, the brochure was the most important evidence, because it alone purported to identify the concierge’s principal. It would lead a reasonable person to understand, as B did, that she was contracting with an international company known to trade under F’s name and logo. No specific company fitting that description was or could have been known to B at the time, because those responsible for the hotel chain chose not to tell their guests who or which company was responsible for the management of the hotels, including, in particular, the guests’ safety. However, F fitted that description. B had a strongly arguable case that F was the other contracting party, Antonio Gramsci Shipping Corp v Recoletos Ltd [2012] EWHC 1887 (Comm), [2012] 2 Lloyd’s Rep. 365 applied. No other company had been identified as a possible defendant. F could have no complaint if the court did not take into account points it might make or evidence it might call at any trial, but which it chose not to mention at this stage, VTB Capital Plc v Nutritek International Corp [2013] UKSC 5, [2013] 2 A.C. 337 followed (paras 71-75). (3) Contrary to the master’s view, the most probable analysis of the evidence regarding B’s conversation with the concierge was that, after some discussion about the details of the tour she wanted, she told him that she wished to make a firm booking, which comprised her offer, he then accepted the booking, and therefore B heard that acceptance in England, so the contract was made in England, Entores Ltd v Miles Far East Corp [1955] 2 Q.B. 327 followed. However, it was hard to say that either party had much the better of the argument, Canada Trust Co v Stolzenberg (No.2) [1998] 1 W.L.R. 547 considered (paras 77-89). (4) Although in light of the preceding findings it was unnecessary to decide, given the finding that B had a good arguable case that F was the party to the contract, 42

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the applicable law pursuant to Regulation 593/2008 art.4(1)(b) was not that of England (paras 90-97). (5) B had a good arguable case that her claims in tort disclosed a serious issue to be tried and on which she had a real prospect of success (paras 106-115, 118-119). (6) As the most likely live issue at any trial was the amount of special damages, and because people with knowledge of B’s late husband’s professional practice and his health were likely to be in England, it was clearly the most appropriate jurisdiction (paras 124-127). (7) Two witness statements made by solicitors in support of F’s application were plainly not compliant with PD32. They failed to say either that they were speaking from their own knowledge or what the source of their information or belief was; and the substance of one was drafted as a submission rather than a statement of fact. It was unacceptable that solicitors should breach the rules in that way. If their instructions did not enable them to make a compliant witness statement, then it was their duty to the court to ask for permission under para.25.2 of the Practice Direction to file a defective witness statement, or not to file a statement at all. In the instant case, it might have been better if the court had simply refused to admit the statements pursuant to the underused power in para.25.1, VTB Capital considered (paras.128-135).

Service Brownlie v Four Seasons Holdings Inc Queen’s Bench Division 19 February 2014 [2014] EWHC 273 A claimant who was injured and whose husband was killed in a car accident while they were on a one-day sightseeing tour in Egypt which she had organised beforehand by telephone from England with the concierge at the hotel where they stayed was granted permission to serve the defendant Canadian international hotel company out of the jurisdiction as she had a strongly arguable case that it was the contracting party that had provided the tour and that the contract was made in England. The appellant (B) appealed against a decision that the court had no jurisdiction to try her claim and setting aside permission to serve the proceedings on the respondent Canadian hotel company (F) in Canada. B and her late husband, who were British and resident in the United Kingdom, had been staying in Egypt at a hotel which formed part of the hotel group carrying F’s name. During a sightseeing tour, the car in which they were travelling crashed, injuring B and killing her husband and his daughter. B had booked the tour by telephoning the hotel’s concierge before 44

they left the UK, having referred to a brochure she had picked up on a previous stay at the hotel. B claimed that F was liable for her personal injuries and under the Fatal Accidents Act 1976; she also claimed under the Law Reform (Miscellaneous Provisions) Act 1934 as the executrix of her late husband’s estate. In a letter before action to F she sought pre-action disclosure of documents relating to the tour booking. F passed the request to the hotel in Egypt. Egyptian lawyers responded, asserting that the accident was caused by the car company and the driver only, and that the driver was never employed by the hotel, whose role had been merely to relay B’s request for a tour to the car company. B failed in her further attempts to obtain clarification from F as to what corporate entity or entities were involved. She issued proceedings and obtained permission to serve F in Canada. F applied successfully for that to be set aside and for a declaration that the court had no jurisdiction to try the claim. The master decided that it was clear that F did not own or operate hotels and in particular did not own the hotel in Egypt, and that B had contracted with the hotel not F for the tour.    Appeal allowed. (1) It was not appropriate for the court, on an application for permission to serve out of the jurisdiction or to set aside permission when given, to try the merits of the claim; yet the master had made findings of fact on issues that would have to be determined at any trial. Moreover, his findings as to the ownership and/ or management of the hotel and as to the party with whom B contracted for the tour were based on defective witness statements and/or were unsupported by evidence. There was no evidence that any company had been established in Egypt for the purpose of managing the hotel. Contrary to the master’s findings, B had a strongly arguable case that the other party to the contract for the tour was most probably an entity with whom the proprietor of the land and buildings had entered into agreements; agreements which were likely to have provided for a licence to use intellectual property including F’s logo and its name and for management and advisory services. The master had fallen into error (see paras 60-66 of judgment). (2) As to whether a contract was made by B with F, the brochure was the most important evidence, because it alone purported to identify the concierge’s principal. It would lead a reasonable person to understand, as B did, that she was contracting with an international company known to trade under F’s name and logo. No specific company fitting that description was or could have been known to B at the time, because those responsible for the hotel chain chose not to tell their guests who or which company was responsible for the management of the hotels, including, in particular, the guests’ safety. However, F fitted that description. B had a strongly arguable case that F was the other contracting party, Antonio Gramsci 45

Shipping Corp v Recoletos Ltd [2012] EWHC 1887 (Comm), [2012] 2 Lloyd’s Rep. 365 applied. No other company had been identified as a possible defendant. F could have no complaint if the court did not take into account points it might make or evidence it might call at any trial, but which it chose not to mention at this stage, VTB Capital Plc v Nutritek International Corp [2013] UKSC 5, [2013] 2 A.C. 337 followed (paras 71-75). (3) Contrary to the master’s view, the most probable analysis of the evidence regarding B’s conversation with the concierge was that, after some discussion about the details of the tour she wanted, she told him that she wished to make a firm booking, which comprised her offer, he then accepted the booking, and therefore B heard that acceptance in England, so the contract was made in England, Entores Ltd v Miles Far East Corp [1955] 2 Q.B. 327 followed. However, it was hard to say that either party had much the better of the argument, Canada Trust Co v Stolzenberg (No.2) [1998] 1 W.L.R. 547 considered (paras 77-89). (4) Although in light of the preceding findings it was unnecessary to decide, given the finding that B had a good arguable case that F was the party to the contract, the applicable law pursuant to Regulation 593/2008 art.4(1)(b) was not that of England (paras 90-97). (5) B had a good arguable case that her claims in tort disclosed a serious issue to be tried and on which she had a real prospect of success (paras 106-115, 118-119). (6) As the most likely live issue at any trial was the amount of special damages, and because people with knowledge of B’s late husband’s professional practice and his health were likely to be in England, it was clearly the most appropriate jurisdiction (paras 124-127). (7) Two witness statements made by solicitors in support of F’s application were plainly not compliant with PD32. They failed to say either that they were speaking from their own knowledge or what the source of their information or belief was; and the substance of one was drafted as a submission rather than a statement of fact. It was unacceptable that solicitors should breach the rules in that way. If their instructions did not enable them to make a compliant witness statement, then it was their duty to the court to ask for permission under para.25.2 of the Practice Direction to file a defective witness statement, or not to file a statement at all. In the instant case, it might have been better if the court had simply refused to admit the statements pursuant to the underused power in para.25.1, VTB Capital considered (paras.128-135).

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Vicarious Liability Cox v Ministry of Justice Court of Appeal (Civil Division) 19 February 2014 [2014] EWCA Civ 132; The Ministry of Justice was vicariously liable for injury caused to a catering manager in one of its prisons by a prisoner undertaking paid kitchen work. The kitchen work carried out by the relevant prisoner was essential to the functioning of the prison and benefited the ministry, and in those circumstances there was no reason that the ministry should not take on the burden of the prisoner’s work as well as the benefit. The appellant (C) appealed against a decision dismissing her personal injury claim against the respondent ministry. C had worked as the catering manager at a prison. When unloading a consignment of food under C’s supervision, a prisoner had dropped a sack causing a food spillage. C instructed all of the prisoners to stop working until the spillage had been cleared but, negligently and contrary to her instructions, another prisoner (X) continued working and dropped a sack onto C’s back while she was kneeling on the floor clearing the spillage. The judge concluded that, although the ministry’s relationship with X exhibited some salient features of the employment relationship, including the fact that X was compensated for his kitchen work, an imposition of vicarious liability was not justified. In particular, he referenced the fact that employment was a voluntary, mutual relationship, unlike prisoners’ work, X’s work had not furthered the ministry’s business undertaking, and although there was a relationship of control, it arose from common sense and the fact that duties were owed by the ministry to its prisoners. The judge also concluded that the ministry was not in breach of its direct personal duty to C because it was not X’s lack of training in manual handling operations that had caused the accident but his disregard for C’s instructions and the obvious risk of injury. C submitted that the judge was wrong to dismiss her claim on the basis that the ministry was not (1) vicariously liable for X’s negligence; (2) in breach of its personal duty to her as her employer to take reasonable care for her safety by providing a safe system of work, a safe place of work, and safe staff and equipment.    Appeal allowed. (1) Adopting a principled, coherent and incremental approach, it was necessary to apply the features of the traditional relationship giving rise to vicarious liability, and to ask whether the features of the instant case fell within them so that it was 48

fair and just to impose vicarious liability on the ministry. That involved asking whether the relationship between X and the ministry was one akin to employment. When one carried out that task and applied the relevant features identified in Various Claimants v Institute of the Brothers of the Christian Schools [2012] UKSC 56, [2013] 2 A.C. 1 (CCWS), it was clear that those features distinctly applied in the instant case. In particular, the features which applied were the ability to compensate X for his work, the fact that X’s employment by the ministry had created the risk of the injury being caused to C, and the fact that X would have been under the ministry’s control, CCWS followed. The work carried out by X and the other kitchen workers was essential to the functioning of the prison and was different in nature to the activities of those prisoners engaged in education, training or on offending behaviour programmes. The work carried out by X relieved the ministry from engaging employees at market rates and with all the concomitants of an employment relationship, and it was clearly done on the ministry’s behalf and for its benefit. There was no reason that the ministry should not take on the burden of X’s work as well as the benefit. As in CCWS , the differences between X’s relationship with the ministry and the normal employment relationship, including the fact that X was bound to the ministry by an imprisonment sentence and not a contract, and the fact that his wages were nominal, rendered the relationship between X and the ministry, if anything, closer to that of an employer and its employees: far from there being mutuality or consent, there was an element of compulsion in engaging in the activity directed by the ministry as the quasi-employer, CCWS followed. The ministry was accordingly vicariously liable for C’s injury (see paras 42-48 of judgment). (2) The judge’s findings as to the likely content of any training and as to the consequences if such training had been provided were unassailable on both duty and causation. The judge was not obliged to draw any inferences against the ministry. He was entitled to conclude that the provision of training would not have caused X not to ignore both the obvious risk of injury and C’s express instructions (para.55). (3) (Per Beatson, L.J.) It was understandable that considering whether a relationship was akin to employment could lead to a focus on whether the relationship was voluntary, but that focus could mislead if it was taken as a bar to vicarious liability rather than simply a factor to be taken into account. While the existence of control was important, vicarious liability did not depend solely on it: what one was looking for was whether the person who had committed the negligent act was so much part of the work, business or organisation of the person or entity who it was said should be vicariously liable that it was just to make the latter answer for the negligence of the former (paras 63-64).

Mohamud v WM Morrison Supermarkets Plc Court of Appeal (Civil Division) 13 February 2014 [2014] EWCA Civ 116; The mere fact that a sales assistant was required to interact with customers in the course of his employment was not, of itself, sufficient to make his employer vicariously liable for any assault he might inflict on a customer. Some feature going beyond interaction between the employee and the victim was required in order to fix the employer with liability. The appellant (M) appealed against the dismissal of his claim that the respondent supermarket operator (W) was vicariously liable for an assault perpetrated by one of its employees (K). The claim arose out of an incident at a petrol station kiosk run by W and staffed by three of its employees, including K. K’s duties involved assisting customers and ensuring that the shop and petrol pumps were in good running order. He had specific instructions not to confront angry or abusive customers, and he had had training on that subject. On the day in question, M visited the kiosk as a customer and asked, politely, if there was a printing facility. K responded by abusing and assaulting M, for no apparent reason and despite his supervisor’s attempts to stop him. The issue at trial was whether there was a sufficiently close connection between the assault and K’s employment to make it fair to hold W vicariously liable. The judge found that there was not. He found that the attack on M was brutal and unprovoked, and that K had carried it out purely for reasons of his own. He held that W was not vicariously liable. M submitted that the assault had arisen from his customer/sales assistant interaction with K, and that it had therefore been committed within the parameters of K’s duties, fixing W with liability.    Appeal dismissed. The judge had correctly focused his attention on the test set out in Lister v Hesley Hall Ltd [2001] UKHL 22, [2002] 1 A.C. 215. The question was whether the connection between the assault and the employment was sufficiently close to make it fair and just to hold W vicariously liable. Each case turned on its own facts, and the authorities from Lister onwards made it clear that careful attention had to be given to the closeness of the connection between the tort and the employee’s duties, viewed in the round. As analysed by Lord Millet in Lister , the decision in Warren v Henlys Ltd [1948] 2 All E.R. 935 remained good law, Lister followed, Warren considered. The fact that the assault had taken place while K was on duty at his place of work was relevant, but not conclusive. The mere fact that the employment provided the opportunity, setting, time and place for the assault was not necessarily sufficient to fix W with liability. Moreover, the fact that K’s job included interaction with the public did not, by itself, provide the necessary connection. Some factor or feature going beyond interaction between the employee and the victim was required. The decided cases examined the question 50

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of close connection by reference to factors such as the granting of authority, the furtherance of an employer’s aims, the inherent possibility of friction or confrontation in the employment, and the additional risk of the kind of wrong occurring. Those approaches represented different ways of answering the question, and they were illustrative of the necessary focus. It was important to recognise that, on the judge’s findings, K had no responsibility for keeping order and he had committed the assault purely for reasons of his own. He had not been given duties which involved the clear possibility of confrontation and the use of force, nor had he been placed in a situation where an outbreak of violence was likely. Rather, his duties were circumscribed and he had been instructed not to engage in any confrontation with a customer, Fennelly v Connex South Eastern Ltd [2001] I.R.L.R. 390, Vasey v Surrey Free Inns Plc [1996] P.I.Q.R. P373, Mattis v Pollock (t/a Flamingos Nightclub) [2003] EWCA Civ 887, [2003] 1 W.L.R. 2158, Keppel Bus Co v Sa’ad bin Ahmad [1974] 1 W.L.R. 1082 and Weddall v Barchester Healthcare Ltd [2012] EWCA Civ 25, [2012] I.R.L.R. 307 considered. There was nothing to bring the case within the close connection test so as to enable a finding of vicarious liability. The law was not yet at a stage where the mere fact of contact between a sales assistant and a customer, which was plainly authorised by an employer, was of itself sufficient to fix the employer with vicarious liability. Were W to be held liable for K’s assault on M, it would mean that in practically every case where an employee was required to engage with the public, his employer would be liable for any assault which followed on from such an engagement. That was a step too far (see paras 25-52, 59-63 of judgment).

Cost Budget Bank of Ireland v Philip Pank PartnershipQueen’s Bench Division (Technology & Construction Court) 12 February 2014 [2014] EWHC 284 (TCC) Where a solicitor had filed and served a costs budget on time, but failed to notice when signing it that the words “statement of truth” appeared next to his signature without the actual statement of truth being present, his error did not render the costs budget a nullity; it was a valid document which suffered only from an irregularity and CPR r.3.14 was therefore not applicable. The court commented on the importance generally of statements of truth. The defendant (P) applied for an order that the claimant (B) was in breach of CPR r.3.13 because it had filed a costs budget which did not contain a full statement of truth. B’s costs budget was in the form of Precedent H annexed to CPR PD 3E. Contrary to B’s solicitor’s normal practice, it had been prepared by an external draftsman, who assured him that it was ready to sign. Acting on that assurance, the 52

solicitor failed to notice that the document did not include the full statement of truth. He signed it and the parties’ costs budgets were exchanged seven days before the case management conference. An identical form was subsequently served with the full statement of truth included. P submitted that as the original budget was in breach of CPR r.3.13, B required relief from the sanction otherwise imposed by CPR r.3.14 and that CPR r.3.9 applied. It emphasised the importance of statements of truth and asserted that there was no reasonable excuse for B’s failure and that there should be no relief from sanction.   Application refused. (1) There was nothing in the CPR or the relevant practice direction requiring each and every failure to comply with the formal requirements for budgets as rendering the budget a nullity. The logical consequence of P’s argument was that every irregularity, even an omitted word or spelling mistake, would make the budget a nullity, which would achieve nothing except to bring the law generally into disrepute. The importance of statements of truth in costs budgeting was not to be underestimated, but it varied depending on context. Their purpose in costs budgets was for solicitors to certify the reasonableness of the budget. The notion that a document which included the words “statement of truth” and which was signed by the partner of a law firm might nevertheless be a complete nullity was unsustainable. The budget had been filed and served on time; it suffered only from an irregularity that had consequently been rectified. CPR r.3.14 was not, therefore, applicable (see paras 9-12 of judgment). (2) If the court was wrong that CPR r.3.14 did not apply, relief from sanction would have been granted on the basis that the non-compliance was trivial and a failure of form rather than substance, Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2013] 6 Costs L.R. 1008 followed. It would not generally be appropriate to characterise the absence of a statement of truth as “trivial” but, on the facts of the instant case, P could have been in no doubt that the solicitor signing the budget was intending to certify the costs as reasonable. The case was far removed from one where there had been a failure to file and serve the budget (see paras 12-16 of judgment).

Section 4 April 2014

Clinical Negligence- causation Tippett v Guy’s & St Thomas’ Hospital NHS Foundation Trust [2014] EWHC 917 (QB), [2014] All ER (D) 15 (Apr) Josh was born on 8 November 2005, and was nine years old. Josh suffered four limb cerebral palsy, and had significant learning difficulties and continuing epilepsy. He would be dependent on care for the rest of his life. Josh’s condition had been caused by brain damage at the time of birth. That was hypoxic (lack of oxygen) ischaemic (inadequate supply of blood) encephalopathy (damage to the brain). It was common ground that the reason for the inadequate supply of oxygenated blood was probably umbilical cord compression meaning that at about 1353 hours on 8 November when his head trapped his umbilical cord against his mother’s pelvis, reducing the supply of blood so that brain damage was suffered from 14.03 hours. An emergency caesarean was carried out, and Josh was born at 1422 hours. Josh, acting by his mother, brought a claim against the defendant NHS Trust (the Trust). The case raised unusual disputes of fact between the parties about who were responsible for disconnecting and then reconnecting a cardio-tocographic trace (the CTG trace), and also raised issues about the proper interpretation of the CTG traces. The mother’s case was that CTG trace taken between 1108 and 1155 hours on 8 November 2005 showed two ‘decelerations’ of foetal heart rate (FHR) and should have led to a medical review at 1155 hours, as opposed to the discontinuance of the trace by the midwife. Alternatively, because the CTG trace up till 1155 hours was not reassuring, the CTG trace should have continued after 1155 hours until about 1220 hours when there should have been a medical review because the CTG trace would have continued to have been non-reassuring. The medical review (either at 1155 or 1220 hours) would have recommended continuing with the CTG trace with advice that if there was a further deceleration Josh should be delivered by caesarean section. The continued CTG trace would have shown either further decelerations or continued to be non-reassuring. A decision to deliver by caesarean section would have been taken and delivery would have been effected before 1403 hours, which was a time before the brain damage had occurred.

Employment issues, Return to work, Past and Future Wage Loss, Labour Market Analysis, Vocational and Functional Capacity Assessments. Scottish & English Courts, ET & CICA Peter Davies Consultants has been providing employment & vocational rehabilitation services since 1993. Based in Helensburgh near Glasgow, but covering UK and Ireland, we are a leading provider of employment related consultancy for people with disabilities, employers and the legal and insurance industries. 27 East King Street, Helensburgh, G84 7QQ Tel: 01436 677767 Fax: 01436 678938 Mobile: 07768020244 E-mail: peter@employconsult.com Web: www.employconsult.com

Defence The Trust contended that the CTG trace between 1108 and 1155 hours had not justified a medical review, only further monitoring and further monitoring could not have taken place because the mother had removed her CTG trace and left her room; when the mother returned to the room the CTG trace was reconnected at 1331 hours; the CTG trace had been continuing at 1353 hours when the umbilical cord compression occurred. Everyone had reacted properly to that event and an emergency caesarean was carried out; even if monitoring had been continued between 1155 hours and 1331 hours, Josh would not have been born before 1403 hours.  The critical disputes on liability related to:

(i)

who had removed the CTG monitoring equipment at 1155 hours;

(ii)

what had the 1105 to 1155 hours CTG trace shown;

(iii) what a continuing trace after 1155 hours would have shown;

(iv) what would have been the response to any continuing CTG trace; and

(v) whether Josh would therefore have been born before 1403 hours.

The claim would be dismissed. On the facts and evidence, the mother removed the trace at 1155 hours, and that it had been reconnected by the midwife at 1331 hours. There had been no decelerations shown on the CTG trace between 1105 to 1155 hours. If monitoring had continued at 1155 hours then by about 1220 hours a medical review would have been sought. That would not have been because of decelerations, but because the trace remained unsatisfactory. In the light of the medical history, the doctor would have called for a further CTG trace to be carried out. Even if that had continued to be unsatisfactory that would not have led to a caesarean, it would have led to an induced labour, perhaps after a scan. Josh would not therefore have been born, or in theatre, before the umbilical cord compression occurred at 1353 hours and for those reasons the claim would be dismissed (see [114] of the judgment).

Fatal Accidents - Damages Kadir v Mistry[2014] All ER (D) 247 (Mar) CA 26/03/2014 The claimant’s wife died in August 2008 of gastric cancer. She was 32 years old and they had four children. The defendants were the partners in a general practice of which the deceased had been a patient. The claimant issued proceedings against the defendants, under the Fatal Accidents Act 1976, on behalf of the

Professor Simon R Carter FRCS FRCS(G), RCPS Consultant Orthopaedic Surgeon, Consultant Orthopaedic Oncologist. All aspects of medico-legal work undertaken including: • Personal Injury • Orthopaedic injuries • Medical Negligence • Delayed/misdiagnosis of bone & soft tissue tumours Contact Secretary – Mrs. Toni Brindley 138 Whitehouse Common Road, Sutton Coldfield, Tel/Fax 0121 378 0700 Email: toni.brindley@btconnect.com

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deceased’s estate and, under the Law Reform (Miscellaneous Provisions) Act 1934, for the negligent delay in diagnosing the deceased’s condition and referring her for treatment, on his own behalf. He contended that the deceased should have been diagnosed in June 2007, rather than in March 2008. With respect to quantum, the claimant relied on his witness statement and medical notes concerning a conversation in May 2008 between the parties as to the effect of the delayed diagnosis on the deceased’s life expectancy. The judge declined to award damages for pain and suffering, and loss of amenity, and the deceased’s mental anguish in anticipation of her early death. The claimant appealed as to the estate’s claim. It was common ground that the deceased had had few symptoms and that they had not been acute. Further, there was evidence that, if treatment had not been delayed, the deceased would have been likely to die in July 2010. The claimant contended that, in deciding whether he had made out the claim for pain and suffering, and loss of amenity, the judge should have disregarded the deceased’s suffering in the course of the treatment and the fact that, without the defendants’ negligence, the deceased would have been exposed to the same suffering, only about two years later.  It fell to be determined:

(i)

whether the judge had erred in failing to award damages for pain and suffering, and loss of amenity;

(ii) whether the judge had erred in failing to award damages for mental

anguish; and

(iii) if damages should be awarded for mental anguish, the quantum of those

damages.

Section 1 of the Administration of Justice Act 1982 (the 1982 Act), concerning the abolition of right to damages for loss of expectation of life, was considered.  The court ruled:  (1) The question was what pain and suffering had been occasioned to the deceased between June 2007 and August 2008 by reason of the defendants’ negligence. The fact that the deceased would have suffered the same pain and suffering in the course of her treatment had been a relevant consideration. The judge had been correct and entitled to refuse an award of damages for pain and suffering, and loss of amenity. The appeal with respect to damages for pain and suffering, and loss of amenity would be dismissed.

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(2) It was well established that awards of damages to deceased persons for the loss of expectancy of life were precluded. However, if life had been reduced by injury, a court could take account of the harm caused by awareness that their expectancy of life had been reduced. ‘Awareness’ in s 1(1)(b) of the 1982 Act did not mean strictly certain knowledge that expectation of life had been reduced, but a good objective reason to fear that it had been. It was plain that, if a good objective reason had been shown, anguish was able to be inferred. In the instant case, the evidence had established that the deceased had apprehended that her early death would be due to the delay in diagnosis. It was plain on the material that the evidence had given rise to a proper inference that the deceased had feared, on good objective grounds, that her life would be curtailed by negligence. The appeal with respect to damages for mental anguish would be allowed.  (3) Absent assistance from authorities, the appropriate approach to assessing damages for mental anguish for the deceased’s anticipation of her early death would be to accept that the deceased’s mental anguish had been proved from May 2008 until her death in August. That was the date of the conversation between the parties, evidenced in the claimant’s witness statement and backed up by the medical notes. Accordingly, the damages would be assessed for a three-month period. There was no suggestion of any psychiatric injury as such, but other factors were no less important, including that the deceased had been a young woman with four young children. Her mental anguish would have been exacerbated by the knowledge that she would be parted from her children, that they would be left without their mother, as the claimant would be left without his wife. Having no guidance, the court could only approach the matter on a broad-brush basis. Justice would be done by an award of £3,500.

Expert Evidence -Disclosure Rogers v Hoyle [2014] EWCA Civ 257, [2014] All ER (D) 131 (Mar) CA 13/03/2014 In May 2011, the deceased, R, was a passenger in a vintage Tiger Moth propeller bi-plane of which the defendant was the pilot. In the course of the flight, the aircraft crashed to the ground and R was killed. The claimants, R’s mother and sister, issued proceedings, as executors on behalf of his estate and as dependants, claiming damages for his death as a result of the accident, which they attributed to the defendant’s negligence. The Air Accident Investigation Branch (the AAIB) investigated the accident and produced a report, which contained a mixture of statements of fact and statements of opinion (the report). The judge held that the report was admissible in evidence and declined to exclude it as a matter of discretion. He concluded that it was a 60

matter for the trial judge to make use of the report as he thought fit and that, even if he had concluded that it had contained some inadmissible material, the trial judge should see the whole report and leave out of account any particular part that was inadmissible. The defendant appealed on the grounds that: (i) the admission of the report would offend the rule in Hollington v F Hewthorn & Company Ltd ([1943] 2 All ER 35) (Hollington); (ii) insofar as the report contained expressions of expert opinion, it did not comply with the mandatory provisions of CPR Pt 35, which constituted a comprehensive code and required the court’s permission to adduce it; and (ii) the judge had been wrong to decline to exclude the report as a matter of discretion, under CPR Pt 32, as if the information contained in the report was allowed to be used as evidence in litigation, that would deter people able to assist in the investigation of air accidents or incidents from doing so in future, which would impede the AAIB’s effectiveness and jeopardise aviation safety. With respect to the exercise of discretion, the Secretary of State as intervener sought to admit new evidence in support of the appellant’s contention.  It fell to be determined:

(i)

whether the report was admissible;

(ii)

whether the report complied with CPR Pt 35; and

(iii) whether the judge had erred in failing to exercise his discretion to exclude

the report.  The appeal would be dismissed.   (1) The foundation on which the rule in Hollington had to rest was that findings of fact made by another decision-maker were not to be admitted in a subsequent trial because the decision at the trial was to be made by the judge appointed to hear it and not another. The trial judge had to decide the case for himself on the evidence that he received and in the light of the submissions on the evidence made to him. To admit evidence of the findings of fact of another person, however distinguished, and however thorough and competent his examination of the issues might have been, risked the decision being made, at least in part, on evidence other than that which the trial judge had heard and in reliance on the opinion of someone who was neither the relevant decision-maker nor an expert in any relevant discipline, of which decision-making was not one. The opinion of someone who was not the trial judge was, therefore, as a matter of law, irrelevant and not one to which he ought to have regard. However, Hollington recognised that different considerations applied to scientific or expert witnesses. Insofar as an expert gave evidence of fact, his evidence was as admissible as that of any other person. Where his evidence 61

was evidence of opinion, it was admissible because it was the product of a special expertise which the trial judge was unlikely to possess and which, even if he had, it was not his function to apply. It was open to an expert to express an opinion based on the facts as he understood or assumed them to be, if and insofar as his conclusion was informed by or a reflection of that expertise. However, insofar as an experts report did no more than opine on facts which required no expertise of his to evaluate, it was inadmissible and should be given no weight on that account (see [39], [41], [51], [53], [100], [101] of the judgment). On the facts, insofar as the report consisted of statements or reported statements of fact, it was prima facie admissible. It was immaterial that it constituted hearsay, whether primary or secondary. The report was not a bare finding. The statements of fact contained in the report were evidence which the trial judge could take into account in like manner as he would any other factual evidence, giving it such weight as he thought fit. The expressions of opinion in the report were ones to which a court was entitled to have regard. The judge’s conclusion had been right. It was not apparent that any part of the report should be regarded as simply expressing an opinion on matters of fact (as opposed to recording evidence) in relation to which the expertise of the AAIB had no relevance. However, even if any part of the report had been (or proved on close analysis hereafter) to have that character, the correct approach was as outlined by the judge, namely, that the trial judge should see the whole report and leave out of account any particular part that was inadmissible (see [31], [49], [51], [55], [100], [101] of the judgment).   (2) CPR Pt 35 was not a comprehensive and exclusive code regulating the admission of expert evidence. Accordingly, the report had been prima facie admissible and, since it did not fall within CPR Pt 35, the claimant had not required the permission of the court to adduce it (see [63], [67], [100], [101] of the judgment).   (3) The admissibility of AAIB reports was not so likely to prejudice the interests which the AAIB was there to serve that they should generally be excluded from consideration in court. The judge had not erred in refusing to exclude the report. Further, the new evidence would not be admitted and, even if it had been, the result would have been the same (see [88], [97], [98], [100], [101] of the judgment).

Fatal Accidents Cox v Ergo Versicherung AG[2014] UKSC 22, [2014] All ER (D) 16 (Apr) 02/04/2014 A fatal accident occurred in Germany where the appellant’s husband, CC, was killed in a road traffic accident. The driver of the other vehicle, K, was a German national resident and domiciled in Germany. He was insured by the respondent, a German insurance company, under a contract governed by German law. 62

The appellant was living with CC in Germany at the time of the accident. After the accident, she returned to England where she had at all relevant times been domiciled. It was common ground that the liabilities of K and his insurer were governed by German law and that the appellant had a direct right of action against Kâ&#x20AC;&#x2122;s insurer for such loss as she would have been entitled to recover from him. Under arts 9 and 11 of Regulation EC 44/2001 the appellant was entitled to, and in fact did, sue the insurer in the courts of the member state where she was domiciled. She sued the insurers in England for bereavement and loss of dependency. Liability was not in dispute, however there were a number of issues relating to damages. Their resolution depended on whether they were governed by German or English law, and if by English law, whether by the provisions of the Fatal Accidents Act 1976 (the 1976 Act) or on some other basis. German Law In German law, the extent of the appellantâ&#x20AC;&#x2122;s recoverable loss was governed by s 844 of the B&#369;rgerliches Gezetzbuch (or BGB). The question which law applied was ordered to be tried as a preliminary issue. The High Court held that the object of s 844 of the BGB was to restore the claimant to the financial position that she would have been in as a dependant of the deceased, but for his death, taking account of any subsequent benefits received which impact on the loss of dependency. Under the 1976 Act any dependency was fixed at the moment of the death, and that anything which might otherwise be thought to affect it afterwards was legally irrelevant. English rules of private international law distinguished between questions of procedure, governed by the law of the forum, and questions of substance, governed by the lex causae. The High Court found that Pt 3 of the Private International Law (Miscellaneous Provisions) Act 1995 (the 1995 Act) selected the applicable law as the starting point of the proceedings, which in the instant case, was German law. Accordingly, the claimant could not rely on the 1976 Act. The appellant appealed submitting inter alia that in applying conflict of law rules, the judge had failed to make a fundamental distinction between the relevant cause of action, on the one hand, and the precise issue which arose for determination, on the other hand. The Court of Appeal dismissed the appeal. It held that the categorisation of the relevant damages provisions of the 1976 Act were procedural and that the damages rules in the 1976 Act could not be regarded as relevant to an assessment of damages for the German cause of action, because the conceptual differences between the English and German causes of action were too great.

They therefore held that English law should adopt the German damages rules as its own and apply them not directly but by analogy. The appellant appealed.  The main issue was whether the appellant was entitled to rely on the provisions of ss 3 and 4 of the Fatal Accidents Act 1976. That issue depended on:

(i)

whether the damages rules in the 1976 Act could be applied to a cause of

action under s 844 of the BGB and if not what rules were to be applied;

whether having regard to s 14(3)(a)(i) of the 1995 Act, the 1976 Act should

(ii)

be applied notwithstanding the ordinary rules of private international law as

due to a matter of construction, the 1976 Act had extraterritorial effect.

The appeal would be dismissed.   (1) The relevant German damages rules were substantive and the damages rules of the 1976 Act could not be applied to a cause of action under s 844 of the BGB. It was unnecessary to engage in the difficult and technical task of classifying s1A, 3 and 4 of the 1976 Act as procedural or substantive, because those sections were irrelevant in either case. Those provisions did not lay down general rules of English law relating to the assessment of damages, even in personal injury actions, but only rules applicable to actions under the 1976 Act itself. An action to enforce a liability whose applicable substantive law was German law was not an action under the 1976 Act to which the damages provisions of that Act could apply. The English law did provide a remedy that harmonised with the German Law right, namely damages. The principal head of loss for which the respondent was liable to compensate the appellant was the deprivation of the net financial benefit to her of her legal right to maintenance from him which was cognate with the corresponding remedy in English law. The answer had to be sought in the rules of assessment which applied generally in English law. The relevant English law principle of assessment, which applied in the absence of any statute to the contrary, was that the appellant had to be put in the same financial position, neither better nor worse, as she would have been in if her husband had not been fatally injured. The claimant was entitled as a matter of German substantive law to an award of damages for the loss of her legal right of maintenance from her late husband. German law required credit to be given so far as she has received corresponding benefits by virtue of an alternative legal right of maintenance from someone else (see [20], [21], [22] of the judgment).   (2) Whether an English statute applied extra-territorially depended upon its construction. There was, however, a presumption against extra-territorial application arising from the fact that the exercise of extra-territorial jurisdiction was contrary to

ordinary principles of international law governing the jurisdiction of states. In relation to an English statute there were two distinct questions. The first was what was the issue of the law of the relevant liability, and the second was one of extra-territorial application, properly so-called. That was not a choice of law principle at all, but turned on the overriding rules of policy of the forum (see [27], [28] of the judgment). â&#x20AC;¨The 1976 Act was an unpromising candidate for implied extra-territorial effect. In the first place, the question of extraterritorial application could not have been an issue at the time when the 1976 Act and its predecessors were passed. Secondly, the whole purpose of s 1 of the 1976 Act, was to correct an anomaly in the English law of tort. There was nothing in the mischief of the legislation which required it to be applied to fatal accidents which, being governed by foreign laws, were unlikely to exhibit the same anomaly (see [32] of the judgment). â&#x20AC;¨In the instant case, the lex causae arrived at on ordinary principles of private international law was not English but German law. There was nothing in the language of the 1976 Act to suggest that its provisions were intended to apply irrespective of the choice of law derived from ordinary principles of private international law (see [29] of the judgment).

Capacity - Settlement agreed without litigation friend invalid Dunhill v Burgin Supreme Court Published March 28, 2014 Before Baroness Hale of Richmond, Lord Kerr of Tonaghmore, Lord Dyson, Master of the Rolls, Lord Wilson and Lord Reed Judgment March 12, 2014 The test of mental capacity for the purpose of bringing an action was whether the person with the cause of action had the capacity to conduct the claim which she in fact had, rather than to conduct the claim as formulated by her lawyers. When a person who did not have that capacity and did not have a litigation friend, but had legal advisers, compromised her claim by entering into a settlement, that settlement was invalid. The Supreme Court so held, dismissing the appeals of the defendant, Shaun Burgin, from decisions of: (1) the Court of Appeal (Lord Justice Ward, Lord Justice Lewison and Sir Mark Potter) ([2012] EWCA Civ 397) allowing the appeal of the claimant, Joanne Dunhill, from a decision of Mr Justice Silber ([2011] EWHC 464 (QB)) who held that the claimant had had capacity to enter into a settlement with the defendant on January 7, 2003; and (2) of Mr Justice Bean ([2012] 1 WLR 3739) who ruled that the settlement reached without approval of the court was invalid and should be set aside.

Mr James Rowley, QC and Mr Matthew Stockwell for the defendant; Mr Christopher Melton, QC, Mr Marc Willems and Ms Maria Roche for the claimant. LADY HALE, with whom the other members of the court agreed, said that two issues arose: (1) What was the test for deciding whether a person lacked the mental capacity to conduct legal proceedings on her own behalf (in which case the Civil Procedure Rules required that she had a litigation friend to conduct the proceedings for her)? (2) What happened if legal proceedings were settled or compromised without its being recognised that one of the parties lacked the capacity (so that she did not have the benefit of a litigation friend and the settlement was not approved by the court as also required by the Rules)? Could matters be reopened long after the event or did the normal rule of English law apply, which was that a contract made by a person who lacked capacity was valid unless the other party to the contract knew or ought to have known that she lacked that capacity, in which case it was voidable: the rule in Imperial Loan Co Ltd v Stone ([1892] 1 QB 599)? Those issues were of considerable importance, particularly in personal injury cases. On the one hand there was the need to protect people who lacked capacity from making settlements which were disadvantageous to them. On the other hand, people were assumed to have capacity to make their own decisions and should only be deprived of the right to do so in clear cases. There was also a public interest in upholding bargains which everyone, particularly the other party, thought were valid when they were made and in putting an end to litigation. The spectre loomed of many personal injury claims which insurers thought had been settled long ago being reopened on the basis of an incapacity which they had no reason to suspect at the time. The real culprits, they would say, were the claimant’s original legal advisers (if she had any) against whom she would almost always have a claim for professional negligence. The defendant, who had been riding a motor cycle, hit the claimant who had been crossing the road. The claimant issued a claim for damages against the defendant. The claim was eventually compromised for the total sum of £12,500 with costs. That was embodied in a consent order which was placed before a judge. On any view that was a gross undervalue of her claim which her current advisers would put at over £2,000,000 on a full liability basis and the defendant would put at around £800,000. The general approach of the common law, now confirmed in the Mental Capacity Act 2005, was that capacity was to be judged in relation to the decision or activity

in question and not globally. Capacity for that purpose meant capacity to conduct the proceedings (which might be different from capacity to administer a large award resulting from the proceedings). The test of capacity to conduct proceedings for the purposes of Part 21 of the Rules was the capacity to conduct the claim or cause of action which the claimant in fact had, rather than to conduct the claim as formulated by her lawyers. Judged on that test, it was common ground that the claimant did not have the capacity to conduct her claim. It followed that she should have had a litigation friend when proceedings were begun, as required by rule 21.2(1). While every other step in the proceedings might be capable of cure, the settlement finally disposing of the claim was not. The embodiment of the settlement in a consent order did not constitute the approval of the court for the purposes of rule 21.10(1). The purpose of the rule was to impose an external check on the propriety of the settlement and the accompanying practice direction set out the evidence that had to be placed before the court when approval was sought. On the test properly to be applied, the claimant lacked the capacity to commence and to conduct proceedings arising out of her claim against the defendant. She should have had a litigation friend from the outset and the settlement should have been approved by the court under rule 21(10)(1). The Supreme Court had not been invited to cure those defects nor would it be just to do so. The consent order would be set aside and the case would have to go to trial. 6. What might this decision mean for settled cases

Section 5 May 2014

Asbestos exposure-Knowledge McGregor v Genco (FC) Ltd [2014] EWHC 1376 (QB), [2014] All ER (D) 77 (May) The claimant had worked in the shoe section of a department store. Around 1976, refurbishment work had been carried out in the store and escalators had been taken out and replaced. It was alleged that no special precautions had been taken to deal with asbestos during the works. The claimant’s employment with the defendant ended in 1981. The claimant, aged 58, developed malignant mesothelioma of the pleura. She began suffering with symptoms of mesothelioma in May 2012 with shortness of breath and lethargy and was diagnosed in August. The prognosis was poor. The claimant brought a claim in damages for personal injury against her former employer on the basis of a breach of common law duty of care. Damages were agreed in the sum of £135,000, inclusive of interest. The proceedings concerned liability only.  The issue for consideration as whether the defendant was liable to the claimant in negligence. In particular:

(i)

whether the claimant had been exposed to asbestos dust during the course

of her employment with the defendants;

(ii)

if so, what had been the extent of her asbestos exposure;

(iii) whether that exposure had caused her mesothelioma; and

(iv) whether that asbestos exposure had been negligent.

State of Knowledge The question asose as to was whether the claimant’s asbestos exposure from the defendant had given rise to a foreseeable risk of injury having regard to the state of knowledge at the time of her employment.  The claim would be dismissed. It was settled law that what had to be foreseen was not the likelihood or probability of injury, but the risk that it might occur. The test in every case ought to be whether the defendant could reasonably foresee that his conduct would expose the 68

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claimant to risk of personal injury (see [67], [68] of the judgment).  On the balance of probabilities, the claimant had been subjected to exposure of asbestos dust during her employment by the defendant at the store in 1976. On the facts, her exposure to asbestos had been for a relatively short period, a matter of months in 1976 during the escalator works, and had been light. The question was whether the carrying out of the escalator works should have alerted the defendant to the fact that the claimant might be at risk of injury when she worked for them in 1976. In the circumstances, the court was unable to accept that, during 1976, when the escalator work was being carried out. It followed that the defendant’s claim against the defendant had to fail. It was not correct to suggest that the defendant should have appreciated that the claimant had been at risk of an asbestos related injury and that their failure to appreciate and take what would be regarded as appropriate precautions or to make enquiries about the nature of the dust was negligent (see [64], [123], [132], [133] of the judgment).

Asbestos Exposure-Liability of Parent Company Thompson v The Renwick Group plc [2014] EWCA Civ 635 In 1969, the claimant commenced work for a company (AW) during which time he regularly handled significant amounts of raw asbestos through a process known as ‘hand baling’. In 1975, AW was acquired by another company (DH). The defendant company was the holding company of DH, accordingly, it also became parent company of AW. The claimant was employed by DH between 1975 and 1978. After the take-over, DH operated under the umbrella of the defendant, for example, the lorry that the claimant drove was painted in the defendant’s livery. The claimant developed diffuse pleural thickening most likely caused in whole or in part by exposure to asbestos dust. He issued proceedings seeking damages. Lack of Insurance Neither AW nor DH, as his employers at the relevant time, were worth pursuing and neither had had in place responsive liability insurance. Consequently, the proceedings were issued against the defendant as parent company of the employing companies. Preliminary Issue The parties agreed that a preliminary question should be resolved, namely, whether the defendant had owed a direct duty of care to the claimant. The county court judge concluded, on the sparse evidence that was before him, that the defendant, through a director appointed by it to DH, had taken control of the daily operation of the business of DH to a sufficient extent to have given rise to a duty of care owed by 70

the defendant to the claimant. He found that that control had become apparent after 1 April 1976. There was no evidence that the director in question had been employed by, or a director of, the defendant and no evidence as to by whom he had been employed whilst working at DH. The defendant appealed. The issues were:

(i)

whether a parent company could be held to have assumed a duty of

care to employees of its subsidiary in health and safety matters by virtue

of that parent company having appointed an individual as director of its

subsidiary company with responsibility for health and safety matters; and

whether the totality of evidence as found by the trial judge was nevertheless

(ii)

sufficient to justify the imposition of a duty of care on the parent company

to protect the subsidiary companyâ&#x20AC;&#x2122;s employees from the risk of injury arising

out of exposure to asbestos at work.

The appeal would be allowed. (1) In running the day to day operations of DH, the director appointed by the defendant had not been acting on behalf of the parent group. He had been acting pursuant to the fiduciary duty that he had owed to DH and pursuant to no other duty. Consequently, the basis upon which the judge had determined that the defendant had owed a duty of care to the claimant was unsupportable. There was no basis upon which it could be concluded that in running the affairs of DH, if he had, that the director in question had been acting on behalf of the defendant (see [25], [26], [41], [42] of the judgment). Smith & Fawcett Ltd, Re [1942] 1 All ER 542 applied; Scottish Co-Operative Wholesale Society Ltd v Meyer and Another [1958] 3 All ER 66 applied; Re Neath Rugby Ltd (No 2); Hawkes v Cuddy and others (No 2) [2009] 2 BCLC 427 applied. Duty of care (2) The findings that the judge had made on the basis of the very limited evidence available had fallen far short of what was required for the imposition of a duty of care on the defendant. There was no evidence that the defendant at any time had carried on any business at all apart from that of holding shares in other companies, let alone that it had carried on either a haulage business or a business an integral part of which had been the warehousing or handling of asbestos or indeed any potentially hazardous substance.

Superior Knowledge Under established principles, what one looked for was a situation in which the parent company was better placed, because of its superior knowledge or expertise, to protect the employees of subsidiary companies against the risk of injury and moreover where, because of that feature, it was fair to infer that the subsidiary would rely upon the parent deploying its superior knowledge in order to protect its employees from risk of injury. There was no basis upon which it could have been asserted that the defendant in the instant case either had had or should have had any knowledge of that risk superior to that which the subsidiaries could have been expected to have. The judge’s findings on the intermingling of the businesses had not meant that the legal personality of the subsidiaries separate from that of their ultimate parent had not been retained and respected (see [36]- [39], [41], [42] of the judgment). Caparo Industries plc v Dickman [1990] 1 All ER 568 applied; Chandler v Cape plc [2012] 3 All ER 640 applied.

Occupiers Liability Driver v Roman Painted House Trust and Dover City Council EWHC May 2014 It arose from a night out in July 2007, where Mrs Driver had sometime after midnight fallen down a 20 foot embankment which lay behind a three foot wall on land owned by the Council and used by the Trust as a car park. The claim was brought under the Occupiers Liability Act 1957 and the Claimant contended that she was a lawful visitor. Both Defendants contended that she was in fact a trespasser, and the 1984 Act applied, given that she was in the carpark after midnight and long after the Museum had closed. The Judge accepted the Defendants’ submissions on that point, and found that the Claimant had been drinking more than she admitted and had entered the car park unlawfully with an intention of “having a wee”, rather than for any legitimate purpose. The claim was dismissed with costs, on the basis that the wall was not dangerous or a trap.

Vicarious Liability/Indemnity Whetstone (t/a Whelby House Dental Practice) v Medical Protection Society Ltd (Sued As Dental Protection Ltd) [2014] EWHC 1024 (QB), [2014] All ER (D) 180 (Apr) The claimant in the first action and the first defendant in the second action (W), was a dentist who had established and owned a dental practice (WH). W was a member of Medical Protection Society Ltd (M), the defendant in the first action and the third party in the second action, pursuant to its articles. The second defendant in the second action (S) was an associate of WH. In February 2009, W began to receive complaints regarding S and subsequently dismissed S for gross misconduct arising from the negligent treatment of patients. W undertook the remedial work necessary in 45 cases of patients who had been treated negligently by S and did not charge the clients for that work. Letter to Patients Following communications with M regarding possible indemnification, W wrote, without consulting M and contrary to its articles, to the affected patients and asked for an assurance that they did not intend to issue legal proceedings in light of the free treatments he had provided. Eleven patients issued proceedings against W for breach of contractual obligations to exercise reasonable care and skill in the management of WH, and breach of a duty in tort, which were consolidated to the second action. W made a request in writing for indemnity in that second action from M, pursuant to cl 3(E) of M’s memorandum, which was rejected by the Council of M. M was added, pursuant to CPR Pt 20, as a third party to the second action (the Pt 20 claim). The claimant issued proceedings for indemnity. The county court held that S and W were liable for damages, and stayed the first action pending the determination of the Pt 20 claim.   It fell to be determined whether:

(i)

the court should make a declaration of indemnity by M in favour of W for £343,390 as the value of the work carried out by W to rectify S’s negligence;

and

(ii)

the court should grant the Pt 20 claim.

The claims would be dismissed.

(1) The right of a member who sought an indemnity from M was to have the request considered in the exercise of the discretion of M’s council, or any person or body with delegated authority to make the decision. The wording of cl 3(E) of the memorandum was very wide, plainly wide enough to entitle M’s council, if so minded in the exercise of its discretion, to grant indemnity in relation to a claim against a member based on vicarious liability. Nevertheless, the construction of cl 3(E) of the memorandum did not have the consequence that it had been unnecessary for a member who wished to obtain an indemnity from M even to ask for it. Making a request had been an essential first step, triggering the obligation on the part of M, by its council, or other delegated person or body, to exercise its discretion. The consequence was that the failure of W to make an application to M, in advance of the commencement of the first action, for an indemnity in respect of his alleged own costs of remedial treatment to patients who had been victims of negligent treatment on the part of S was fatal to his claim for indemnity in that action (see [59], [63], [64], [65] of the judgment).  The first claim would be dismissed (see [100] of the judgment).   (2) The sending by W, to all of his patients who had been treated negligently by S, of letters requesting assurances that they would not pursue litigation had been perfectly disgraceful. It had been the most blatant incitement to recipients of the letter to make claims, in circumstances in which otherwise the risk of claims might have been slight because of the remedial work undertaken or promised by W at no charge. The sending of the letters had been a flagrant breach of the obligation in art 40(6) of M’s articles not to take steps in relation to a claim without the consent of M. Accordingly, the sending of the letters inciting claims would, on its own, justify M in refusing W indemnity in respect of the claims thus provoked (see [111], [112] of the judgment).  The Pt 20 claim in the second action would be dismissed (see [113] of the judgment).

CPR Update The Civil Procedure Rules are to be amended to allow parties to agree time extensions of up to 28 days for serving certain documents, without needing to make an application to the court. A conference to assess the impact of the Jackson reforms held by the Civil Justice Council (CJC) on Friday was told that the new ‘buffer’ measure will be approved by the Civil Procedure Rules Committee at its next meeting, in a few weeks’ time.

RTA-Contributory Negligence Groves v Studley [2014] EWHC 1522 (QB) In 2010, the first defendant (D1) drove a Peugeot 306 GTI 6 motor car out of a lay-by on the A458 Welshpool to Shrewsbury road. D1 then drove a distance of some 420 metres towards Shrewsbury. Whilst still in the lay-by, and very shortly after D1 had begun the journey, the claimant (C) was carried on the Peugeot’s bonnet, hanging on to a customised raised hinge where the bonnet met the bottom edge of the front windscreen. C fell off the bonnet near to the bus stop as a result of D1 swerving his car so as to dislodge C. C sustained catastrophic brain damage as a result of colliding with the road surface and/or the kerb. D1 pleaded guilty to offences of dangerous driving and driving whilst disqualified. He was sentenced to 18 months’ imprisonment for dangerous driving, plus four months’ imprisonment consecutive for driving whilst disqualified, plus two months’ imprisonment consecutive for failing to stop after a road traffic accident. Primary liability was admitted on the basis that D1 ‘made an error of judgment that was outside of the range of reasonable responses when he manoeuvred his motor car in such a way as to cause [C] to fall off’. The issue of contributory negliglence and apportionment of liability fell to be decided. The defendant who had taken part in the proceedings was the second defendant (D2) who was the insurer concerned under the Road Traffic Act 1988. The main factual issues concerned:

(i)

how it was that C had come to be upon D1’s bonnet;

(ii)

the events after C had landed on the bonnet including:

(a) whether D1 stopped near the end of the lay-by such that C had an

opportunity to get off the bonnet;

(b) whether D1 had any genuine concern as to C’s conduct if he brought

the car to a halt rather than continuing to drive and (successfully)

attempting to dislodge C from the motor car. D1 was not called to give

evidence and there was no explanation given of that failure.

The court ruled: In certain circumstances a court might be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action. If a court was willing to draw such inferences they might go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness. There had, however, to have been some evidence, however weak, adduced by the former on the matter in question before the court was entitled to draw the desired inference: in other words, there had to be a case to answer on that issue. If the reason for the witnessâ&#x20AC;&#x2122;s absence or silence satisfied the court then no such adverse inference might be drawn. If, on the other hand, there was some credible explanation given, even if it was not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified (see [40] of the judgment). On the evidence, D1 had initially driven his car directly towards C. C himself had been behaving badly, he could have got out of the way at any time. Only at the last moment had D1 swerved to try to avoid C. That was probably because he had expected C to get out of the way. The probabilities were that C had also expected D1 to stop. At that point C had jumped onto the bonnet from round about the front nearside corner of the Peugeot. He had managed to get a hand grip on the edge of the bonnet near the windscreen. C had either believed that that would stop D1 driving his car or, possibly, C had not really thought straight at all when jumping on the car. Once C had been on the bonnet it was difficult for him to get off unless the car stopped or at least slowed very substantially. D1 could have stopped or slowed very substantially at any stage thereafter. He had not done so. D1 could have either stopped in the lay-by where there had been other members of the public or he could have stopped at any stage thereafter. He had driven a substantial distance with C on the bonnet. He had then deliberately swerved his car so as to dislodge C from the bonnet. In that he was successful and caused to C grievous injuries. He had been guilty of the offence of dangerous driving (see [45] of the judgment). The responsibility for the accident was 60% D1 40% C. C was therefore entitled to damages representing 60% of the full value of his claim (see [46] of the judgment) Eagle v Chambers [2005] 1 All ER 136 applied; â&#x20AC;&#x192;

Section 6 June 2014

MIB –European Challenge Delaney v Secretary of State for Transport[2014] EWHC 1785 (QB), [2014] All ER (D) 31 (Jun) 03/06/2014 The claimant suffered personal injury as a result of a road traffic accident. The Motor Insurers’ Bureau was the insurer of last resort became liable under the Uninsured Drivers’ Agreement 1999 (the agreement). The claimant commenced proceedings. The claim was dismissed in the county court on the grounds that the claimant’s claim was barred on grounds of public policy and the claimant knew or ought to have known that the vehicle was being used in the course or furtherance of crime, namely the transportation of cannabis for the purpose of subsequent supply, and cl 6(1)(e) (iii) of the agreement was accordingly applicable. The Court of Appeal allowed the claimant’s appeal on the ex turpi causa issue on the basis that the joint criminality was only the occasion, and not the cause, of the accident but dismissed it on the cl 6(1)(e)(iii) issue. The claimant issued a new claim for damages arising as a result of the defendant Secretary of State being in breach of art 1(4) of Directive 84/5 (on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles) (the second directive). The Queen’s Bench Division held that the United Kingdom, in the legal personification of the defendant, was in plain breach of EU law, and the question of liability to pay compensation on principles in Francovich v Italian Republic therefore arose.

Limitation Collins v Secretary of State for Business Innovation and Skills [2014] EWCA Civ 717, [2014] All ER (D) 44 (Jun) Between 1947 and 1967, the claimant had been a dock worker. Throughout that period he was registered with the National Dock Labour Board (NDLB), an organisation that no longer existed but whose liabilities were the responsibility of the first defendant Secretary of State. On occasions the claimant assisted in unloading cargoes of asbestos that were held in hessian sacks. In early 2002, the claimant became unwell. He was diagnosed as suffering from inoperable lung cancer. 78

Following palliative radiotherapy, the cancer abated and the claimant made a good recovery. In 2008, the claimant was discharged from further follow-up. Between 2008 and 2010, the claimant was treated for an unrelated bowel problem. In July 2009, the claimant contacted his solicitor in response to an advertisement offering free advice to those who had worked at the dockyard where the claimant had worked, during the period he had worked and who had suffered various health problems including lung cancer. In November, a letter of claim was sent to the Secretary of State. In November 2010, a letter of claim was sent to the second defendant, S (a stevedoring company that the claimant had worked for). In May 2012, the present proceedings were commenced by which the claimant sought damages for personal injuries against both defendants. He asserted that both NDLB and S had acted negligently and in breach of statutory duty by exposing him to contact with asbestos which had caused him to develop lung cancer. In their defences, the defendants asserted, inter alia, that the claims were barred under the Limitation Act 1980. That point was tried as a preliminary issue. The judge upheld the limitation defences and dismissed the claims. He concluded that:

(i)

the claimant had commenced proceedings within the requisite three

year period after the date of actual knowledge of the possible link between

his cancer and his exposure to asbestos, namely the date when he had seen

the advertisement;

(ii)

the claimant had had constructive knowledge under s 14(3) of the Act of

the possible link by mid-2003 because, as a reasonable man he should have

asked his doctor about the possible causes of his cancer and, had he

done so, it was inconceivable that the doctor would not have mentioned

asbestos exposure as a possible cause;

(iii) therefore, under s 11 of the Act the limitation period had expired in mid-2006

and the claimant had commenced his action six years after expiry of the

limitation period; and

(iv) upon application of the criteria in s 33 of the Act, it did not appear equitable

to disapply the provisions of s 11.

The claimant appealed.â&#x20AC;¨He submitted that the judge had erred:

(i)

in having found that he had had constructive knowledge in mid-2003; and

(ii)

in having exercised his powers under s 33 of the Act when he should have

disapplied the provisions of s 11.â&#x20AC;¨

The appeal would be dismissed. (1) Sections 11 to 14 of the Act struck a balance between the interests of: (i) persons who, having suffered latent injuries, sought compensation late in the day; and (ii) tortfeasors who, despite their wrongdoings, ultimately needed closure. Parliament had struck that balance by means of an objective test (see [38] of the judgment). The judge had been correct to find that the claimant had had constructive knowledge by the middle of 2003 of the possible link between asbestos exposure and his cancer. Applying the objective test to the present case, the judge had been correct to that a reasonable person in the claimant’s position would have asked about the possible causes of his lung cancer by mid-2003. The fact that the claimant had delayed for six years before asking what had caused his cancer had not assisted his case. A reasonable person would have been prompted to inquire sooner. On the issue of the response the claimant would have received had he asked his doctor in 2003 as to the possible causes of his lung cancer, the judge’s conclusion was correct. The claimant’s medical records from 2002 contained several references to the claimant’s employment history and his exposure to asbestos. The doctor would have known that exposure to asbestos was one of the possible causes of lung cancer and, if asked by the claimant as to the cause of his cancer, he would have mentioned asbestos exposure as a possibility (see [39], [42], [47], [49], [50], [80], [81] of the judgment). (2) In the light of the established authorities, s 33(3) of the Act was to be construed in the following manner. First, the period of time which elapsed between a tortfeasor’s breach of duty and the commencement of the limitation period had to be part of ‘the circumstances of the case’ within the meaning of s 33(3). Secondly, the primary factors to which the court had to have regard were those set out in s 33(3)(a) to (f). Thirdly, although the court would have regard to time elapsed before the claimant’s date of knowledge, the court would accord less weight to that factor. It would treat pre-limitation period effluxion of time as merely one of the relevant factors to take into account. Finally, both parties might rely upon that factor for different purposes. The claimant might rely upon the earlier passage of time in order to buttress his case under s 33(3)(b). The claimant might argue that recent delay had little or no impact on the cogency of the evidence. The damage had been done before the claimant started being dilatory. The defendant might rely upon the earlier passage of time, in order to show that it had already faced massive difficulties in defending the action; therefore any additional problems caused by the claimant’s then recent delay were a serious matter. It was for the court to assess those and similar considerations, then to decide on which side of the scales to place that particular factor (see [66], [80], 80

[81] of the judgment). In carrying out his evaluation exercise, the judge had treated the criteria set out in s 33(3)(a) to (f) of the Act as the factors of primary importance. He had also had regard to the passage of time between the defendants’ alleged breaches and the claimant’s date of constructive knowledge. He had treated the lengthy period of historic delay as a factor that made it less equitable to extend time under s 33(1). He had been entitled to take the period of historic delay into account in the manner that he had. The judge had carefully evaluated all the relevant factors and had come to a conclusion under s 33 which was plainly correct (see [67], [68], [74], [75], [80], [81] of the judgment).

Fraud Aziz v Ali and another and others cases[2014] EWHC 1846 (QB)Queen’s Bench Division, Leeds District Registry There were several separate claims consolidated. The claimant in the first action AA, was a private hire vehicle driver. He alleged that he was driving his car with two friends as passengers, in April 2009 along Gledhow Valley Road in Leeds. He alleged that another vehicle came out of a side road, did not give way, and drove into the side of his vehicle. He alleged the driver of that car was negligent and caused the accident. He claimed that his vehicle sustained damage and had to be writtenoff and he contended that he suffered whiplash injuries and claimed for damages. He claimed against the first defendant, who was said to be the driver of the other vehicle, and the second defendant an insurance company. The second claim involved three individuals who also claimed damages arising out of an alleged car accident. One claimant, AJ was a taxi driver. He was carrying two passengers, FK, and SS. Claim forms and particulars of claim were issued by all three claimants alleging that AJ was driving a car along Brudenell Street in Leeds in April 2009. The particulars of each claim alleged that another car failed to give way and collided with AJ’s car. The particulars alleged that the other car was being driven negligently. They alleged that AJ’s car was damaged and that he suffered injuries. They alleged that FK and SS both claimed that they suffered injuries. The first defendant was SS who was said to be the driver of the other car. The second defendant in both claims was an insurance company. The second defendant in each claim each contended that the two road traffic accidents referred to never happened. They contended that there had been a series of fraudulent claims whereby insurance policies were taken out by non-existent or non-traceable individuals. They sought to recover compensation from the allegedly non-existent insured drivers and the insurance company. Initially, eight claims relating to four accidents were consolidated. Four claims relating to two of the accidents were struck out. That left the four claims relating to two accidents left to be determined. 81

The issue in the case was whether there had been negligence as alleged and whether the claims occurred in law. The law was simple and not in dispute. The issues in the instant cases were factual rather than legal. The claims would be dismissed. On the evidence, no road traffic accidents of the sort alleged in the claim forms had occurred. No car struck AA’s car in April 2009, whilst he was driving along with two friends. No car had struck AJ’s taxi whilst he was carrying two passengers, FK and SS. In the circumstances, there could have been no negligence of the sort alleged by the claimants. The claims would be dismissed (see [73] of the judgment).

Amendment Groarke v Fontaine [2014] EWHC 1676 (QB) Queen’s Bench Division [2014] EWHC 1676 (QB) The defendant in a personal injury claim was refused permission by the district judge to amend his defence late in the proceedings in order to plead a case in contributory negligence. The consequence of the decision was that the defendant lost the opportunity of reducing the scale of his liability by an appropriate percentage and was thus found to be liable on a 100% basis. Quantum had yet to be assessed because a split trial had been ordered. In coming to his decision, the judge balanced the potential prejudice to the claimant against that to the defendant and exercised his discretion in favour of the claimant. The defendant sought permission to appeal and an appeal if permission was granted. The defendant submitted that the judge had been plainly wrong to have refused permission to add contributory negligence, even though the application was at the eleventh hour and, further, there was no countervailing prejudice to the claimant and no need for any adjournment, any further delay or additional cost. The claimant submitted that the judge’s decision was a case management decision (robust or otherwise) with which the court should not interfere. It was, he submitted, a reasonable conclusion to reach in the light of the facts before him and the factors which he should and had taken into account. The merits of the proposed appeal had to be determined, not only in the light of the amendments to the CPR in April 2013 but also with the benefit of guidance contained in later appellate decisions, such as Mitchell v News Group Newspapers Ltd[2014] All ER (D) (Mar), Durrant v Chief Constable of Avon and Somerset Constabulary[2013] All ER (D) 186 (Dec) and Chartwell Estate Agents Ltd v Fergies Properties SA[2014] All ER (D) 04 May Permission would be granted and the appeal would be allowed.

It was necessary over a whole range of case management decisions for judges to bear in mind, not only the need to determine issues justly and fairly, as between the parties themselves, but also, in doing so, the imperatives that litigation should be conducted efficiently, economically and with due regard to the potential impact on court resources and indeed other litigants or court users. Any decision was, however fact-sensitive. Judges had to apply judgment, or exercise an element of discretion, in the light of the individual facts which meant that there could not always be one correct answer to the problems posed. Nevertheless the courts had tried to reduce the opportunities for uncertainty, or inconsistency of approach, by resort to general phrases of admonition such as, for example, that we are in a new era of ‘zero tolerance’ or ‘no nonsense’ (see [6]-[9] of the judgment). The judge had been doing his best to apply the relevant principles, as expounded in the recent authorities, to the facts of this case. However, in so far as he balanced the potential prejudice to the claimant against that to the defendant, the exercise yielded the wrong outcome. Justice and fairness required that the amendment should have been allowed so that ‘the real dispute’ between the parties could be adjudicated upon. It was true that the burden was on the defendant to establish not only that this objective was desirable but also that it should, in the particular circumstances, prevail. There was no good reason why it should not. There was no countervailing prejudice to the claimant. In particular, there was no need for any adjournment, any further delay or additional cost. Thus no court time would have been wasted or court resources diverted. Correspondingly, no other court users would have been inconvenienced (see [32] of the judgment). Mitchell v News Group Newspapers Ltd; Rowland v Mitchell [2014] All ER (D) 273 (Mar) considered; Durrant v Chief Constable of Avon and Somerset Constabulary [2013] All ER (D) 186 (Dec) considered; Chartwell Estate Agents Ltd v Fergies Properties SA [2014] All ER (D) 04 (May) considered; Brown v Innovatorone plc [2012] All ER (D) 273 (May) applied.

Liability Atkinson v South Tees Hospitals NHS Foundation Trust[2014] EWHC 1590 (QB) The claimant, C, was born in 1943. In 1998, C sustained an injury to his left little finger. He was no longer able to move it and to some extent it became redundant. He said it did not bother him too much, apart from the fact that it would continually get caught on things. In 2008, he went to his GP because his left ring finger began to curl inwards. He had nodules all across the palm of his hand and his ring finger was

quite severely bent in towards the palm of his hand. He said that that became quite restrictive so he decided to go to his GP who then referred him to Dr E. Dr E saw C on 6 August 2008. He confirmed the GP’s diagnosis of Dupuytren’s contracture of the left non dominant hand, palm, little finger and ring finger. The left little finger had a swan neck deformity as a result of the earlier injury. Dr E said that the decision to perform surgery on a Dupuytren’s contracture was never made lightly because it was progressive and incurable. Recurrences were likely. An operation was only indicated if the patient was experiencing problems with daily life. After discussion between Dr E and C, C indicated he would like to proceed and was placed on the waiting list for surgery, namely fasciectomy for the Dupuytren’s contracture. He underwent three operations at the defendant’s hospital. These were: 28 October 2008 – Fasciectomy, 18 April 2009 – Left median nerve decompression (carpal tunnel), 24 November 2009 – Re release of left carpal tunnel. Resection of scar/ Dupuytren formation left ring finger. C’s claim was that there was negligence on behalf of the defendant’s hospital in the first and second operations; and as a result he had suffered injury, loss and damage. As to the first operation, C’s allegation involved the ulnar digital nerve (UDN). The liability experts disagreed as to whether the UDN had been divided at the first operation. They agreed that it was not necessarily negligent to divide it at the operation, but it would be negligent to fail to identify that it had been divided; if it had, it would also be negligent to fail to consider repairing such a nerve. If it had been divided, and a repair attempted, then a repair would probably have been successful such that a significant number of C’s continuing symptoms would not be present. As to the second operation, the issue involved the palmar cutaneous nerve (PCN). Again the experts disagreed as to whether the PCN had been divided during this operation. If it had been divided then the experts agreed that that was negligent. Also that some of the symptoms experienced by C in the palm of his left hand would not be present. Breach of duty turned purely on questions of fact, namely: whether the UDN had been divided in the first operation; (ii) whether the PCN divided in the second operation. The burden of proof was on C to prove on the balance of probabilities that each of these nerves had been divided as alleged. The court ruled: Taking into account the evidence, on balance of probabilities, C had proven that the UDN had been divided. The court however was not satisfied on the balance of probabilities that the PCN had been divided at the second operation. C’s claim succeeded in relation to the division of the UDN but failed in relation to the division of the PCN. The parties had agreed the appropriate level of damages in the light of that finding (see [69] [84] of the judgment). 84

Clinical Negligence Hall v Thomas and others [2014] EWHC 1625 (QB) The claimant was born in 1989. In 2005, pursuant to a written agreement he embarked upon a two year football scholarship with the third defendant, Everton Football Club, (the club) with a view to achieving a long term football career. In 2005, when just 16, during a training game and through no fault of anyone, he sustained a twisting injury of his left knee and felt immediate pain. An arthroscopy carried out disclosed two significant injuries namely a complete rupture of the anterior cruciate ligament (ACL) and a tear of the posterior horn of the lateral meniscus. The arthroscopy also revealed very early, albeit asymptomatic, signs of degenerative changes. A reconstruction operation was successful and in due course a stable knee was achieved. Thereafter the claimant began a 24 week rehabilitation programme devised by and under the supervision of the head physiotherapist, namely the second defendant. The programme was based upon a protocol contained in a text book on sports injury headed â&#x20AC;&#x2DC;Standard rehabilitation protocol after anterior cruciate ligament (ACL) reconstruction (patella tendon)â&#x20AC;&#x2122;. The claimantâ&#x20AC;&#x2122;s progress to full recovery did not go as had been hoped and on any view the claimant had a knee which was unfit to withstand the rigours of a professional football career and had abandoned any lingering hope he had to pursue such a career. The claimant brought a claim in negligence, for breach of the duty of care owed to him on the part of the second defendant for which the third defendant would be vicariously liable. That negligence was in the delivery of the rehabilitation of his left knee following the initial twisting injury, and further that that breach of duty had caused or materially contributed to the entirety of the additional damage to the knee, which has ensued since that initial ACL rupture and tear of the lateral meniscus. As against the first defendant, a general medical practitioner, the claim was in negligence, alleging breach of duty of care owed to the claimant in the failure to take steps to ensure that the claimant was treated for the Staph A infection by the afternoon/early evening of the Monday 17 September 2007c. The Staph A infection was a complication of the operation causing septic arthritis in the knee and which in turn gave rise to further chondral (cartilage) damage to the knee and other damage to the joint. In particular terms the first defendant had admitted a breach of duty flowing from the two day delay between the 17 and 19 September 2007 in the instigation of the treatment in fact instigated on the 19 September. The claimant accepted that admission as being the limits of the case he sought to pursue against the first defendant.

This trial was concerned with breach of duty and causation of damage. As against the first defendant therefore the issue was only one of causation and medical causation at that. As against the second and third defendants, issues of both breach of duty and causation of damage remained. It was not in dispute that in order to establish such a breach of duty the claimant had to establish that the second defendant, failed to exercise the skill and care of a reasonably competent physiotherapist. The court ruled: Sympathetic though any court had to be to what had befallen the claimant’s knee at such a young age, it was impossible to hold that the claimant has established any breach of duty against the second defendant and thus the third defendant. The reasoning was as follows, remembering the test to be applied, the analysis of the documented history of the rehabilitation disclosed no ‘red flags’ ever being raised of which the second defendant ought to have been aware or that the rehabilitation programme he had been pursuing or the return to training activities was inappropriate or was putting the claimant at risk of damage being caused to his knee. A review of the claimant’s progress had been undertaken by qualified professionals who by reference to their respective disciplines were clearly in a position to take a history from the claimant and to identify any concerns in that regard (see [78], [79] of the judgment). The admitted negligence of the first defendant had caused 50% of the septic arthritis induced damage to the claimant’s knee. As to precisely what that damage amounted to had ultimately be a matter for the trial on quantum (see [153] of the judgment).

Section 7 July 2014

Limitation s.33 Discretion Malone v Reylon Heating Engineering Ltd[2014] EWCA Civ 9042 July 2014 Between 1977 and 2004, the claimant had been employed by the defendant company. The claimant had first visited his doctor complaining of hearing loss in 2001. He was given a hearing aid. In 2006, the defendant went into administration and, in 2008, it went into liquidation. In March 2009, the defendant’s insurer was notified of the claimant’s potential claim for noise induced hearing loss and moderate tinnitus and, in August, they sent a letter of acknowledgement indicating that they were searching for documentation. In September, the claimant’s solicitors provided the names of four of his supervisors. In July 2010, the liquidation concluded and, in October, the defendant was dissolved. In January 2011, the claimant commenced proceedings against the defendant seeking damages for the hearing problems that had arisen out of his employment. In June 2011, the defendant’s liquidators disclosed that the records that related to the defendant had been destroyed. At trial, the claimant accepted that he had had constructive knowledge within the meaning of ss 11 and 14 of the Limitation Act 1980 by the end of January 2001. Given that the limitation period under s 11 of that Act had expired by the time that he had issued his claim, he requested that it be disapplied under s 33 of the Act for the entire period of his employment. The judge considered that there had been continuing exposure which had caused damage up until 2004, and therefore, the cause of action had continued to accrue until the claimant had ceased his employment. She determined that the primary limitation period had expired in 2007. In considering the prejudice to the defendant in defending the action, she found that the period of relevant delay had been between 2007 and 2009 (when the insurer had been notified of the claim) and that the passage of those two years had not made the position materially worse for the defendant. Consequently, she exercised her discretion and disapplied the limitation period. The defendant appealed.

It submitted that the claimant’s cause of action had been complete in relation to any harm he had suffered by January 2001. He had already sustained significant injury and, in accordance with ss 11 and 14 of the Act, the limitation period had started to run from the date of knowledge (which he had conceded had been January 2001). Further, the judge had been wrong to conclude that the additional harm incurred between 2001 and 2004 had operated to delay the limitation period; the sustained and continuing damage had been a divisible form of injury. Any later infliction of damage should not, in was contended, operate to put back or suspend the commencement of the limitation period with regard to earlier damage. Further, on the issue of delay, the defendant submitted that the judge had erred in having failed to take account of the earlier prejudice, given that the claimant had brought the claim outside the limitation period. The delay between 2001, when the defendant had been a going concern, and 2009, by which time the defendant was in administration, had affected the opportunities for any proper investigation, the reliability of witnesses’ recollections and the availability of documents. The appeal would be allowed. The judge had identified only one limitation period, which she had applied to the entirety of the claimant’s employment, and she had failed to reflect the divisible nature of the injury. As a consequence, the judge’s approach to s 33 of the Act was vitiated because she had erroneously decided that the only relevant period of delay had been between 2007 and 2009. Instead, she should have identified the two periods of delay: 2004 to 2009 for the pre-2001 damage and 2007 to 2009 for the post-2001 damage. Since, in the judge’s view, the determining factor as to whether to allow the entire case to proceed had been whether the primary limitation period had expired in 2004 or 2007, together with her acceptance that the defendant had had a strong case as regards prejudice if the period of relevant delay had been between 2004 and 2009, her conclusion that it was equitable to exclude the time limit was unsustainable. The judge should have considered, separately, whether to have allowed the case to proceed for the pre-2001 injury, bearing in mind the prejudice caused by the delay since 2004, and whether to have allowed the case to proceed for the post-2001 injury. The decision as regards the first period had been potentially relevant to her decision on the second. it therefore fell to the court to re-exercise the discretion under s 33 of the Act. Applying s 33 to the pre-2001 injury, it would not be equitable in the circumstances to allow the claim to proceed as the prejudice to the defendant in allowing the claim to proceed outweighed the prejudice to the claimant in not allowing it to proceed. Given that the claimant had allowed both limitation periods to expire, the court would necessarily consider the 89

overall circumstances of the case, including an analysis of the prejudice already created with regard to the pre-2001 injury, when assessing the post-2001 period. The prejudice to the defendant had to be assessed by reference to the delay on the part of the claimant in the context of the matter as a whole, particularly given the continuing harm of which he had had constructive notice in early 2001. In addressing proportionality, the value of the claim for the period 2001 to 2004 would be exceedingly small. Consequently, in respect of the post-2001 period, the prejudice to the defendant outweighed the prejudice to the claimant and it would be inequitable to allow that part of the claim to proceed (see [39], [40], [43], [45][47], [50], [51] of the judgment).

Track Allocation Admissions and Value of Claim Akhtar v Boland[2014] EWCA Civ 872Court of Appeal, Civil Division25 June 2014 Proceedings arose between the parties following a road accident. A claim was issued on behalf of the claimant by a credit hire company against the defendant’s insurer. The claim form gave the value of the claim as ‘Damages in excess of £5,000 but less than £10,000 plus interest and costs’. The particulars of special damage totalled £6,393. The prayer was for ‘Damages for (sic) exceeding £5,000 but not exceeding £10,000’. By his defence, the defendant admitted the accident and liability to compensate the claimant for ‘any proven loss and damage caused to the claimant as a direct result’. The defendant disputed the particulars of special damage and quantified the disputed damages in the sum of £3,867, with admitted damages being £2,496. The defendant put the claimant to proof regarding the hire of a replacement vehicle from the credit hire company and contended that the claimant had failed to mitigate his loss. Fast Track The claimant, in his allocation questionnaire, stated that the most suitable track for the claim was the fast track. The claimant’s estimated costs up to that point were £7,000 plus VAT and disbursements and the overall costs were likely to be £15,000 (including a 100% success fee). The defendant’s questionnaire stated that the most suitable track was the small claims track given that the amount in dispute was £3,867 and where the issues in dispute were not complex. The claim was allocated to the small claims track. The claimant applied for the allocation to be changed. The district judge refused the application and entered judgment for the claimant for the sum of £2,496 (which was the total admitted in the defence) and costs. The claimant appealed on the ground that the judge had erred in his interpretation of CPR 26 and sought reallocation of the claim to the fast track. The county court judge dismissed the appeal. The claimant appealed. 90

He submitted that, correctly construed, the defence had been no more than an offer to pay £2,496. It had not been an admission that the claimant had been entitled to that sum, since in subsequent paragraphs of his defence the defendant had taken issue with the basis upon which the claim would be entitled to judgment for all the sums claimed. An admission that part of a sum claimed was payable was not an admission. Consideration was given to CPR 14 on admissions, to CPR 18 and to r 7 of CPR PD 26A. The appeal would be dismissed. Where an allegation made by one party in proceedings was admitted by the other party in unqualified terms, that other party could not seek to adduce evidence or raise arguments to the effect that that admission was not binding on him. The court had no jurisdiction to investigate a fact that had been admitted, unless the party making the admission obtained the permission of the court under CPR 14.1(5) to withdraw the admission and did so. That principle applied even more strongly to a judgment for all or part of a claim. Neither party might adduce evidence or make submissions that, if accepted, would lead to decisions or findings inconsistent with the judgment, unless there was a successful application to set the judgment aside. Where a defendant admitted part, and not the whole, of an unliquidated damages claim, the claimant was entitled to judgment on that admission, and to pursue the proceedings to seek and obtain judgment for the balance. Such a judgment did not extinguish the claimant’s cause of action. Part 18 Where an admission was equivocal, or inconsistent with other allegations in the defence, the claimant might, and should, seek further information or clarification of the defendant’s case under CPR 18.1. If the claimant failed to do so, and the court considered that it was uncertain what were the issues between the parties that fell to be determined at trial, it might itself make an order for clarification, and in an extreme case, where the defence was truly incoherent, the court might strike it out. On an application appealing a case allocation, if the court was uncertain as to whether an admission was unqualified, or as to its effect, the court would be expected to seek and to obtain clarification from the defendant at the hearing, and for that clarification to be made or confirmed in writing (under CPR 18.1 or in an amended defence) (see [16]-[19], [32], [33] of the judgment). It was clear in the instant case that the district judge had interpreted the defence as including an unqualified admission that the claimant had been entitled to the sum of £2,946; hence he had entered judgment for that sum. 91

The claimant had not applied to set that judgment aside and the defendant had accepted that, at trial, the claimant could not have recovered less than the admitted sums. It followed that, at trial the allegations in the defence that were inconsistent with the admissions that the defendant had made would have had to be disregarded. Once the court had determined that the defendant had accepted that the claimant was entitled to judgment in the sum of ÂŁ2,496, the only sum in dispute had been the balance of the claim, which had been less than ÂŁ5,000. In the circumstances, the county court judge had been entitled to allocate the claim to the small claims track, since the remaining sum in dispute had been less than ÂŁ5,000 (see [20], [21], [24], [32], [33] of the judgment).

Transfer Ministry of Defence v Durrheim and others[2014] EWHC 1960 (QB)13 June 2014 The Ministry of Defence (MOD) applied under s 41 of the County Courts Act 1984 for an order to transfer the personal injury claims, made by serving and former service personnel alleging noise induced hearing loss caused by service from existing County Courts all around the country to the High Court in London so that they might be case managed centrally and to transfer any subsequent cases raising the same issues to the High Court in order to provide for a common case management process and timetable. All the claims raised the question of the extent to which, if at all, the MOD owed a duty of care where loss and damage was alleged to have occurred due to a failure to exercise reasonable care on the actual or simulated battle field; including in making procurement decisions about personal protective equipment and other equipment to be used in such circumstances. A master dismissed the application applying the case of Smith v Ministry of Defence [2013] UKSC 41. The MOD appealed. The MOD submitted that the decision was wrong. Not only that, but the decision of the master had taken into account immaterial factors as well as failing to take into account material factors in both of the decisions before him, namely, whether or not a test group of claims should be ordered and whether the claims should be transferred in to the High Court. The appeal would be dismissed. In a case management decision involving the exercise of judicial discretion, such a decision was not to be lightly interfered with by an appeal court (see [81] of the judgment). In balancing the various factors, the master had considered the various factors before coming to the conclusion he had. It had been a matter within his judgment to do so. In all of the circumstances, the decision was correct. Whilst his reasoning might 92

have been shortly expressed or lacking, the deficiency was not of such an order that one could say that his decision was wrong (see [115], [119] of the judgment). Smith v Ministry of Defence; Ellis v Ministry of Defence; Allbutt v Ministry of Defence [2013] All ER (D) 167 (Jun) applied; Mannion v Ginty [2012] All ER (D) 375 (Nov) considered.

Costs success fee-30% Bright v Motor Insurers’ Bureau [2014] EWHC 1557 (QB) The claimant suffered serious injury when in 2010 the first defendant’s vehicle reversed into the claimant who was standing behind it. The claimant suffered a severed spinal cord injury leaving her tetraplegic. The insurance company avoided its obligations under the policy of motor insurance and the claimant claimed against the second defendant, the Motor Insurers’ Bureau (MIB). The claimant signed a Conditional Fee Agreement (CFA) in October 2010. It provided for a two-stage success fee. A success fee of 50% was payable if the claim settled before three months before the trial date or the opening of the trial window, and 100% if it was settled or was determined in favour of the claimant thereafter. The claim settled and there was a detailed assessment of costs in which a preliminary issue arose regarding the percentage of the success fee. The claimant served a notice of commencement together with a bill of costs. The bill included a success fee of 75% on the solicitors’ charges. The second defendant challenged that claim and offered 30%. A master made an order by which the success fee of the claimant solicitors’ was reduced from the 75% sought, to 30%. The master held that the risks to be considered by the claimant’s solicitor in the case revolved entirely around the risk of a Part 36 offer and the complications that might ensure from any finding of contributory negligence. He had before him the bill of costs which included the allegations of contributory negligence raised by the second defendant. The master took into account the increased risk of a ‘well-placed’ Part 36 offer with the additional difficulty in assessing the adjustment for contributory negligence. Further, the fact that liability was not admitted was also taken into account by the Master as adding to the risk justification for the success fee. He had regard to the decision in C v W[208] All ER (D) 239 (Dec) in which the Court of Appeal substituted a success fee of 20% for the risk of failure to beat a rejected Part 36 offer where there was an issue of contributory negligence. The claimant appealed. The issue was whether the Master had erred. Consideration was given to CPR 45.18 which allowed a party to apply for a success fee higher than the fixed success fee 93

where the claim was one with a value on a full liability basis in excess of £500,000. The appeal would be dismissed. The master had not erred in his approach to assessing a reasonable success fee. Nor was the conclusion he had reached that the success fee in the case should be assessed at 30% outside the parameters of a decision of a master properly directing himself on the relevant circumstances. (see [57] of the judgment). C v W [2008] All ER (D) 239 (Dec) applied.

Costs Finglands Coachways Ltd v O’Hare (a protected party by his sister and litigation friend Ms Portia Crees) [2014] EWHC 1513 (QB) Queen’s Bench Division, Manchester District Registry The applicant coach company had been a defendant in a personal injury action brought by the respondent, a 23 year old man who had suffered injuries following a serious road traffic accident when his Honda Civic motor car collided with the applicant’s double decker bus. The respondent suffered significant and extensive brain injuries with associated past and future losses and quantum valued in the region of £3-4m. The respondent brought his claim on the grounds that the applicant’s driver had driven through a red or amber light. The applicant denied liability and contended that it was the respondent who had driven through a red light. Accident reconstruction evidence led to the respondent’s expert altering his opinion and the respondent withdrew his claim. The applicant served its bill of costs in the sum of £60,000. Following a detailed assessment hearing, the applicant’s costs were assessed in the sum of £37,803.89 plus interest. The applicant applied for permission to appeal with an appeal to follow if granted. The applicant contended that on the basis of CPR 44, the judge had erred in principle by assessing the costs by reference to the stricter test of necessity, as opposed to reasonableness and there had been no finding or any argument about the costs being disproportionate, which was the legal prerequisite to considering necessity. Costs of just over £60,000 could not sensibly be said to be prima facie disproportionate in a heavily fought claim valued at a minimum of £3m. Nor was there any argument that any particular item or group of items were disproportionate. Further, the failure to apply the correct test was a serious procedural irregularity and the judge’s error pervaded the entirety of the assessment such that the final assessment had been reached in a manner which was fundamentally wrong and unjust (ground 1). With grounds 2-4 the applicant submitted that the judge had stepped significantly outside the ambit of his discretion upon which reasonable 94

agreement was possible. The case raised the issue of whether under CPR 44, a costs judge was entitled to consider if individual items of costs claimed were proportionate and necessary for the conduct of litigation, even if the costs of the litigation overall appeared proportionate. The applicant’s contention was that in those circumstances a costs judge was confined to applying the less onerous test of whether individual items of costs had been reasonably incurred. The court ruled: Prior to 2013, the starting point for assessing costs on a standard basis was CPR 44.4(2): (i) the court would only allow costs proportionate to the matters in issue and (ii) would resolve doubts as to whether costs were reasonably incurred or reasonable and proportionate in amount in favour of the paying party. The court was to have regard to all of the circumstances of the case and to the specific factors, such as the value of a claim, specified in CPR 44.5. CPR 44.4(2) of the old rules meant that the court would, of its own initiative, disallow disproportionate costs even if the paying party had not raised the point. Whether costs, in a general sense, were necessary was integral to whether they were proportionate. In assessing costs under the old version of the rules, a court could consider on an item by item basis whether a particular item of costs was proportionate and necessary even if costs were proportionate on a global basis. There was nothing difficult in deciding whether particular items of a bill of costs were proportionate or necessary to the conduct of litigation (see [19], [27], [28] of the judgment). Although the judge used the terms ‘necessary’ and ‘need’ indiscriminately, that conclusion was not fatal. In using the term the judge had been inquiring whether the costs were justified in the sense of being proportionate. Secondly, in assessing particular items of costs the judge almost always used the term ‘reasonable’, sometimes coupled with ‘necessary’. The use of the word ‘necessary’ had to be judged in this context and in circumstances. Even if the judge had applied the test of necessity he had not been wrong to do so. There was nothing which confined the proportionality template to costs as a whole and excluded its application to individual items. The judge had not misdirected himself in law, nor had his approach been procedurally irregular or unjust. In relation to grounds 2-4 in relation to specific items, the applicant had not surmounted the high threshold for the court to interfere with the judge’s exercise of discretion. Nothing before the court suggested that the judge had exceeded the generous discretion conferred on him or had been wrong in his approach to the assessment of the individual items. The application for permission to appeal, and the appeal itself, would be dismissed. The applicant had to pay the claimant’s costs of the appeal (see [26]-[29], [32] of the judgment).

Lownds v Home Office [2002] All ER (D) 329 (Mar) considered; Giambrone v JMC Holidays Ltd (Sunworld Holidays Ltd) (No 2) [2004] All ER (D) 305 (Feb) considered; Motto v Trafigura Ltd [2011] All ER (D) 138 (Oct) considered Mitchell v News Group Newspapers Ltd[2014] 2 All ER 430 Guidance Denton and others v TH White Ltd and another; Decadent Vapours Ltd v Bevan and others; Utilise TDS Ltd v Davies and others[2014] EWCA Civ 906Lord Dyson MR, Jackson and Vos LJJ 4 July 2014 Three separate appeals were before the court which raised common issues regarding relief from sanctions under CPR r 3.9 which provides that: ‘ (1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need – (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders. (2) An application for relief must be supported by evidence’. In determining the appeals, the court considered the guidance that it had given on CPR 3.9 in the matter of Mitchell v News Group Newspapers Ltd[2014] 2 All ER 430 (Mitchell) and the criticism that had since been made of that judgment. The court considered that the guidance given at [40] and [41] of Mitchell was substantially sound, but that it had been misunderstood and had been misapplied so took the opportunity to clarify and amplify its guidance in certain respects. The court then addressed concerns expressed by the legal profession regarding satellite litigation and the non-cooperation between lawyers that Mitchell had generated. The appeals would be allowed. (1) CPR r 3.9 contained three elements (which were not to be confused with the three stages in the guidance given below). First, it stated when the rule was engaged by providing that it applied “[o]n an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order”. That made it clear that the court’s first task was to identify the “failure to comply with any rule, practice direction or court order”, which had triggered the operation of the rule in the first place. Secondly, it provided that, in such a case, “the court will consider all the circumstances of the case, so as to enable it to deal justly with the application”.

Thirdly, it provided that the exercise directed by the second element of the rule should include a consideration of factors (a) and (b). A judge should address an application for relief from sanctions in three stages. If the breach was neither serious nor significant, the court was unlikely to need to spend much time on the second and third stages (see [23], [24] of the judgment): (A) The first stage was to identify and assess the seriousness and significance of the “failure to comply with any rule, practice direction or court order” which engaged r 3.9(1). That was what had led the court in Mitchell to suggest that, in evaluating the nature of the non-compliance with the relevant rule, practice direction or court order, judges should start by asking whether the breach could properly be regarded as trivial. Triviality was not part of the test described in the rule. It was a useful concept in the context of the first stage because it required the judge to focus on the question whether a breach was serious or significant. The word “trivial” had given rise to some difficulty. It would be preferable if in future the focus of the enquiry at the first stage was not on whether the breach had been trivial. Rather, it should be on whether the breach had been serious or significant. The assessment of the seriousness or significance of the breach should not, initially at least, involve a consideration of other unrelated failures that might have occurred in the past. At the first stage, the court should concentrate on an assessment of the seriousness and significance of the very breach in respect of which relief from sanctions was sought. The court might wish to take into account, as one of the relevant circumstances of the case, the defaulter’s previous conduct in the litigation. That was better done at the third stage rather than as part of the assessment of seriousness or significance of the breach. If a judge concluded that a breach was not serious or significant, then relief from sanctions would usually be granted and it would usually be unnecessary to spend much time on the second or third stages. If, however, the court decided that the breach was serious or significant, then the second and third stages assumed greater importance (see [25]-[28], [84] of the judgment); (B) The second stage was to consider why the default had occurred. That could not be derived from the express wording of r 3.9(1), but it was nonetheless important particularly where the breach was serious or significant. The court should consider why the failure or default had occurred: that was what the court had said in Mitchell at [41] (see [29], [84] of the judgment); (C) (Jackson LJ dissenting in part) The third stage was to evaluate “all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]”.

The important misunderstanding that had occurred post-Mitchell was that, if

(i)

there was a non-trivial (now serious or significant) breach and

(ii)

there was no good reason for the breach, the application for relief

from sanctions would automatically fail. That was not so and was not

what the court had said in Mitchell at [37]. Although the two factors at

r 3.9(1)(a) and (b) might not be of paramount importance, they were of

particular importance and should be given particular weight at the third

stage when all the circumstances of the case were considered. That was

why they had been singled out for mention in the rule. Sub-paragraph (a)

was, in substance, included in the definition of the overriding objective in

CPR r 1.1(2) of enabling the court to deal with cases justly. Sub-paragraph

(b) was included in the definition of the overriding objective in identical

language at r 1.1(2)(f). If it had been intended that factors (a) and (b) were

to be given no particular weight, they would not have been mentioned in

r 3.9(1). Thus, the court had to, in considering all the circumstances of the

case so as to enable it to deal with the application justly, give particular

weight to those two important factors. In doing so, it would take account of

the seriousness and significance of the breach (which had been assessed

at the first stage) and any explanation (which had been considered at the

second stage). The more serious or significant the breach the less likely it was that relief would be granted unless there was a good reason for it. Where there was a good reason for a serious or significant breach, relief was likely to be granted. Where the breach was not serious or significant, relief was also likely to be granted. However, it was always necessary to have regard to all the circumstances of the case. The factors that were relevant would vary from case to case (see [31], [32], [34]-[36] of the judgment). Mitchell v News Group Newspapers Ltd [2014] 2 All ER 430 explained; Durrant v Chief Constable of Avon and Somerset Constabulary [2014] 2 All ER 757 considered; Adlington v ELS International Lawyers LLP [2014] All ER (D) 55 (Jan) considered; Lakatamia Shipping Co Ltd v Nobu Su [2014] All ER (D) 132 (Feb) considered; Newland Shipping & Forwarding Ltd v Toba Trading FZC [2014] All ER (D) 73 (Feb) considered; Summit Navigation Ltd v Generali Romania [2014] All ER (D) 202 (Feb) considered; Chartwell Estate Agents Ltd v Fergies Properties SA [2014] All ER (D) 04 (May) considered; Hallam Estates Ltd v Baker [2014] All ER (D) 163 (May) considered. (2) Litigation could not be conducted efficiently and at proportionate cost without (i) fostering a culture of compliance with rules, practice directions and court orders, and (ii) cooperation between the parties and their lawyers. That applies as much 98

to litigation undertaken by litigants in person as it did to others. It should not be overlooked that CPR r 1.3 provided that â&#x20AC;&#x153;the parties are required to help the court to further the overriding objectiveâ&#x20AC;?. Parties who opportunistically and unreasonably opposed applications for relief from sanctions took up court time and acted in breach of that obligation. It was wholly inappropriate for litigants or their lawyers to take advantage of mistakes made by opposing parties in the hope that relief from sanctions would be denied and that they would obtain a windfall strike out or other litigation advantage. In a case where

(i)

the failure could be seen to be neither serious nor significant,

(ii)

where a good reason was demonstrated, or

(iii) where it was otherwise obvious that relief from sanctions was appropriate,

parties should agree that relief from sanctions be granted without the

need for further costs to be expended in satellite litigation. The parties should

in any event be ready to agree limited but reasonable extensions of time

up to 28 days as envisaged by the new CPR r 3.8(4). It should be very much

the exceptional case where a contested application for relief from

sanctions was necessary. That was for two reasons: first because

compliance should become the norm, rather than the exception as it had

been in the past, and secondly, because the parties should work together

to make sure that, in all but the most serious cases, satellite litigation was

avoided even where a breach had occurred. The court would be more

ready in the future to penalise opportunism.

Heavy costs sanctions would be imposed on parties who had behaved unreasonably in refusing to agree extensions of time or unreasonably opposed applications for relief from sanctions. An order to pay the costs of the application under r 3.9 might not always be sufficient. The court could, in an appropriate case, also record in its order that the opposition to the relief application had been unreasonable conduct to be taken into account under CPR r 44.11 when costs were dealt with at the end of the case. If the offending party ultimately won, the court might make a substantial reduction in its costs recovery on grounds of conduct under r 44.11. If the offending party ultimately lost, then its conduct might be a good reason to order it to pay indemnity costs. Such an order would free the winning party from the operation of CPR r 3.18 in relation to its costs budget. The culture of compliance that the new rules were intended to promote required that judges ensured that the directions that they gave were realistic and achievable. The court had to have regard to the realities of litigation in making orders in the first place. Judges had to have in mind, when 99

making directions, where the Rules provided for automatic sanctions in the case of default. Likewise, the parties should be aware of these consequences when they were agreeing directions. “Unless” orders would be reserved for situations in which they were truly required: those were usually so as to enable the litigation to proceed efficiently and at proportionate cost (see [40]-[44] of the judgment). Having regard to that guidance each of the appeals would be allowed (see [57], [66], [80], [83] of the judgment).

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101

Section 8 August 2014

Manual Handling Regulations Breach? Sloan v Governors of Rastrick High School[2014] EWCA Civ 1063, [2014] All ER (D) 305 (Jul) The claimant had been employed by the defendant school as a learning support assistant. The claimant had responsibility for providing support and assistance to pupils with mobility and similar physical problems. Her work included pushing students in their wheelchairs and assistance with other activities that required movement. On 6 September 2008, the claimant commenced working on her own following a period of training and colleague shadowing. On 17 September, she experienced pain in her shoulder and back after pushing a student in her wheelchair. On 22 September, her GP prescribed her pain relief and muscle relaxants and she was off work for the whole of the week. On 29 September, the claimant returned to work and arrangements were made so that she was not required to push wheelchairs, although she might have done so on one or two occasions. In October, she gave one weeksâ&#x20AC;&#x2122; notice and left the defendantâ&#x20AC;&#x2122;s employment. The claimant sought damages for personal injury. She claimed to have suffered a soft tissue injury as a consequence of pushing one or more students in their wheelchairs, which had resulted in chronic and continuing pain in her shoulder and back. Claimant alleged She contended that, contrary to reg 4 of the Manual Handling Operations Regulations 1992, SI 1992/2793, the defendant had failed:

(i)

to avoid the need for her to undertake a manual handling operation which

involved risk of injury;

to make any suitable and sufficient assessment of any such manual handling

(ii)

operations; and

(iii) to take any or any appropriate steps to reduce the risk of injury arising out of

such manual handling operations to the lowest level reasonably practicable.

The recorder found that the claimant had suffered a strain on 17 September that had resulted in symptoms over the following two weeks. She found that any further 102

symptoms had arisen from constitutional and degenerative changes not caused by or connected with the strain. Further, the defendant had not been in breach of the Regulations in any of the respects alleged by the claimant. The claimant appealed.  She submitted, first, that the recorder had misdirected herself as to the burden of proof under the Regulations. In respect of that submission, the defendant accepted that the recorder had misdirected herself in stating that the claimant had had to prove that the defendant had breached its statutory duty and that that breach had caused injury and loss. The question, therefore, was whether that misdirection had undermined the recorder’s findings and conclusions. Secondly, she submitted that the recorder had failed, inter alia:

(i)

to make any clear finding as to whether the defendant could, so far as

reasonably practicable, have avoided (by the use of powered wheelchairs

for all pupils) the need for the claimant to have undertaken manual handling

operations that involved a risk of injury and, to the extent that any finding

had been made, it had been perverse; and

to make any clear finding that a suitable and sufficient risk assessment had

(ii)

been made by the defendant and, if such a finding had been made, it had

been perverse because the only risk assessment provided by the defendant

had, on its face, been manifestly incomplete and insufficient.

The appeal would be dismissed.  (1) It was clear that the recorder had made her findings and reached her conclusions on the evidence as a whole, without any reliance on the burden of proof. Having assessed the witnesses, she had made firm findings of primary fact. Her conclusions on the issues had been equally firm and uninfluenced by any question on the burden of proof. In any event, it was apparent that when she had come to make those findings, she had, in fact, correctly applied the burden of proof (see [14], [16], [54], [55] of the judgment).  (2) There had been a clear finding by the recorder that it had not been reasonably practicable to have avoided the use of manual wheelchairs and, in the light of the evidence, it could not be said that it had been an unreasonable conclusion for her to have reached (see [19], [20], [54], [55] of the judgment).

103

(3) The Regulations did not specify particular categories of person who had to prepare risk assessments but, clearly, in order to comply with reg 4, a risk assessment had to be prepared by a person with the necessary training and experience required for the purposes of the risk assessment in question (see [29], [54], [55] of the judgment). The recorder had considered that the risk assessment had satisfied the requirements of reg 4 of the Regulations. In the light of the contents of the risk assessment, she had been entitled to reach that conclusion. The evidence had amply justified the conclusion that the person who had had responsibility for the preparation of risk assessments at the school had been qualified to prepare the assessments relevant to the present case. The evidence had justified the recorder’s conclusion that the risk assessment had been suitable and appropriate (see [25], [29], [54], [55] of the judgment).

Interim Payments Bailey v Smith[2014] EWHC 2569 (QB), [2014] All ER (D) 270 (Jul) The claimant was seriously injured through the defendant’s admitted negligence in a road traffic accident in April 2012. Part of the evidence was that the claimant had been visible to the defendant for eight seconds. A master ordered an interim payment of £500,000 to be paid to the claimant. In so doing he rejected the defendant’s submission that contributory negligence was a factor to be taken into account. The master cited the leading authority of Eeles v Cobham Hire Services Ltd[2009] All ER (D) 2004 (Mar) and applied it by reference to the first stage. He decided that, on the facts, the claimant was likely to recover by way of a lump sum capital award at least £710,000, including accommodation costs of £300,000. The master reduced those figures to reach a total of £300,000 as that which on a conservative estimate he thought the claimant was likely to be awarded as a capital sum for accommodation. Of the total likely recovery of £710,000 he awarded an interim payment of £500,000 as a reasonable proportion. The defendant had made two offers, one of £1.45m and one, since the hearing before the master, of £1.6m, in each case of a simple lump sum in full and final settlement. The defendant appealed by way of challenge to the issues of contributory negligence and accommodation costs.  The defendant submitted that:

(i)

the master had been wrong to treat the burden of establishing contributory negligence as resting on the defendant as on an interim payment

104

application, the burden was on the claimant to establish the amount which

he was likely to be awarded, after taking into account the possibility of

reduction of damages for contributory negligence;

(ii)

on the evidence available there was a real prospect of a reduction for

contributory negligence on the basis that if the claimant was visible to

the defendant for eight seconds, the reverse had to be true, and the

claimant potentially had that time to take avoiding action;

(iii) the master ought not to have taken into account any sum in respect

of accommodation costs and that in doing so he made several errors of law

in misapplying the principles in Eeles. Consideration was given to CPR 25.

Consideration was given to Roberts v Johnstone The appeal would be dismissed.  The court had power to award an interim payment where it was satisfied that if the claim went to trial the claimant would obtain judgment for a substantial amount of money against the defendant (CPR 25.7(1)(c)). The court could not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment (CPR 25.7(4)); and had to take into account contributory negligence. On an interim payment application, there was an evidential burden on the defendant to put before the court material raising an issue of contributory negligence. The task of the court was to apply the relevant legal test to the evidence before it. Accommodation costs were usually to be included in stage one on an application for an interim payment because the court could have a high degree of confidence that they will be awarded as a capital sum despite including future losses. If, however, the court could not have that high degree of confidence, they could not be included in a conservative assessment of a final judgment which the claimant was ‘likely’ to recover, within the meaning of CPR r 25.7(4) and the court would be fettering the trial judge’s discretion to deal with them by way of a PPO if it included them in the amount in respect of which an interim payment was made. Once it was accepted that the trial judge was bound to deal with accommodation costs on the footing that the claimant should buy a property, the award would inevitably be calculated in accordance with Roberts v Johnstone. The discretion in relation to other heads of future loss remained unaffected by the interim payment. If the interim payment was no more than the capital sum which the trial judge will award for accommodation, there was no question of it fettering his discretion in relation to other heads of future loss (see [2], [8], [21], [33] of the judgment).  In the instant case, the master could not be faulted for treating accommodation costs in the case within stage one of the Eeles test. He could properly have had a high degree of confidence that the trial judge would award a capital sum in respect 105

of accommodation needs as firstly whenever there was serious injury, it would very rarely be reasonable to require a claimant to rent rather than buy a property and further, there were compelling reasons in the case of the claimant for permitting him to buy rather than rent. It was relevant that the defendant had made two offers, one of £1.45m and one, since the hearing before the master, of £1.6m, in each case of a simple lump sum in full and final settlement. Those had not proposed a PPO as any part of the settlement (see [22], [23], [28], [29], [30] of the judgment).

Interims Haynes (A child, by her mother and Litigation Friend Nicola Spratt) v Kingston Hospital NHS Trust [2014] All ER (D) 148 (Jul) The claimant was an eight-year-old girl with profound disabilities. She had cerebral palsy, with cognitive impairment and impaired mobility; she had significant learning, behavioural and communication problems; and she was entirely dependent on others for her care, the activities of daily living, and safety. Her likely life expectancy was such that she might be expected to live until about the age of 74. Her injuries had been caused by the defendants’ admitted negligence in the management of her mother’s labour and in her delivery. Judgment on liability had been entered on 3 August 2012. The defendant had already made substantial interim payments in the total sum of £700,000. The parties have reached agreement as to general damages in the sum of £304,000, and as to past losses in the sum of £420,000, in both cases including interest. There was, however, a very substantial dispute in relation to future accommodation, where the claimant’s pleaded figure in the schedule of loss and damage was £1,697,051, and the defendant’s pleaded figure in the counter-schedule was £542,194. The claimant by her litigation friend sought the sum of £1.6m by way of interim payments in respect of accomodation. The parties were in agreement that there was an urgent need for alternative accommodation however, it was very much in contention whether the sum of money sought was reasonable. Under CPR 25.7(4), the court was not to order an interim payment of more than a reasonable proportion of the likely amount of the final judgment. The approach to be taken by the court on such applications where a large interim payment was sought but the trial judge was likely to wish to make a periodical payments order, had been explained in two stage process in the case of Eeles v Cobham Hire Services Ltd[2009] All ER (D) 144 (Mar) (see [6]-[7] of the judgment). The claimant relying on the second part 106

of the Eeles process submitted that it was appropriate to take into account the parties’ respective positions as to capitalisation of any award for future losses. In the schedule, the claimant had sought a lump sum in respect of all future losses except for heads 7 (care), 8 (case management), 14 (extra costs), and 17 (management element of deputyship costs). In the counter schedule, the defendant agreed that heads 7 and 8 should be paid as periodical payments, but asserted that all other losses should be capitalised. Reference was also made to the prejudice discussions which had taken place on 13 May 2014 at which a sum of £3.5m was offered by the defendant on a without prejudice basis.  The application would be allowed. The first task of the judge was to assess the likely amount of the final judgment, leaving out of account the heads of future loss which the trial judge might wish to deal with by PPO. That assessment should be carried out on a conservative basis, and the interim payment should be a reasonable proportion of that assessment. The judge needed have no regard to what the claimant intends to do with the money. Where the judge could confidently predict that the trial judge would wish to award a larger capital sum than that covered by general and special damages, interest and accommodation costs, he would be entitled to include additional elements of future loss in his assessment of the likely amount of the final judgment. Before doing so, he had to be satisfied by evidence that there was a real need for the interim payment requested. Where the request was for money to buy a house, the judge had to be satisfied that there was a real need. If the judge was satisfied of that, to a high degree of confidence, then he would be justified in predicting that the trial judge would take that course, and in assessing the likely amount of the final award at a level which would permit the making of the necessary interim payment (see [6], [7] of the judgment).  In the circumstances of the case, the trial judge would wish to follow the parties’ preference for the capitalisation of all heads apart from 7, 8 and 14, which on the basis of their current open positions would suggest, at bottom, a capital sum of around £2.4m. It would be wholly unrealistic not to take into account the sum offered by the defendant on a without prejudice basis (£3.5m). Taking that position into account, and doing the best the court could on the basis of the opposing contentions,it was possible to say with a high degree of confidence that the likely capital award at trial would be at least £3m. The proposed expenditure was reasonably necessary and was urgently required and the court felt justified predicting that the trial judge would take the same course. Therefore the court would order the further interim payment sought, namely £1.6m (see [26], [28], [30] of the judgment).

107

Losses Knauer v Ministry of Defence[2014] EWHC 2553 (QB), [2014] All ER (D) 250 (Jul) Between 1997 and 2007, SK was employed as an administrator in a prison, where she was exposed to asbestos. As a result of that exposure, SK contracted mesothelioma. She died on 28 August 2009 at the age of 46. The claimant was her widower and the administrator of her estate. The couple had three sons who at the date of their mother’s death were aged 22, 20 and 16 respectively. Liability was eventually admitted by the defendant Ministry of Defence. Judgment was given by consent for damages to be assessed. Many heads of damage were agreed but on a small number of issues there was a wide divergence. At the time of her death SK had worked for many years and would have continued to do so. The multiplier in such circumstances was set out in what was known (and described in s 10 of the Civil Evidence Act 1995) as the ‘Ogden tables’. It was reached by taking a starting point of the number of years to the predicted date of death of the claimant or retirement or death of the deceased (as the case might be), which was then discounted both for the uncertainties of life and for accelerated receipt. The conventional method of calculation was to fix one overall multiplier, then to classify the period to trial as special damages and the remainder as future loss. This method of calculation was illogical, because the discount for accelerated receipt was not to apply in respect of the period from the death to the trial.  The first issue were firstly the appropriate amount of damages for pain suffering and loss of amenity. The Judicial College (in the 12th edition published in 2013) guidelines for the assessment of damages in mesothelioma cases gave a bracket of £51,500 to £92,500. The commentary on the illness was: ‘Mesothelioma causing both severe pain and impairment of both function and quality of life. This may be of the pleura (the lung lining) or of the peritoneum (the lining of the abdominal cavity); the latter being typically more painful. There are a large number of factors which will affect the level of award within the bracket. These include but are not limited to duration of pain and suffering, extent and effects of invasive investigations, extent and effects of radical surgery, chemotherapy and radiotherapy, whether the mesothelioma is peritoneal or pleural, the extent to which the tumour has spread to encase the lungs and where other organs become involved causing additional pain and/or breathlessness, the level of the symptoms, domestic circumstances, age, level of activity and previous state of health.’ Due to the fact the SK would have worked for many years, the claimant claimed both for an income dependency and for loss of her domestic services. Both of the claims involved calculating a multiplicand and a multiplier.

108

The second issue was therefore the issue of principle as to the multiplier. The claimant submitted that the time had come to depart from the conventional method. Instead, the period to trial should be treated as special damages (with a small discount for the uncertainties of life but none for accelerated receipt) and then calculate the multiplier for future loss starting at the date of trial or judgment  The court ruled:  (1) In recent case law, £77,500 (£79,500 in today’s money) had had been awarded in respect of the pain and suffering of a male victim of mesothelioma. In another case, the victim died at the age of 60 and the award was £65,000 (£77,000 in today’s money) (see [11] of the judgment). Applying case law, the amount of general damages under the heading of pain suffering and loss of amenity was £80,000 (see [11] of the judgment). (2) The court was bound by the conventional method of calculation (see [17] of the judgment). The claim would therefore be approached for past and future income dependency, and past and future services dependency, on the conventional basis. Past income dependency was to be assessed at £23,182. Future income dependency at £82,136. Past services dependency at £88,160 and future services dependency at £329,241 (see [41] of the judgment). The total award excluding interest was therefore £642,972.51 (see [42] of the judgment).

Causation and Default judgment Symes v St Georges Healthcare NHS Trust[2014] EWHC 2505 (QB), [2014] All ER (D) 292 (Jul) In clinical negligence proceedings, the claimant alleged negligence on the part of the defendant, St George’s Healthcare NHS Trust, arising out of his treatment by the defendant. His case was that, as a result of a failure on the part of the defendant to arrange for an urgent superficial parotidectomy to be carried out within two weeks, he experienced a metastasis of the tumour to the lungs and invasion of the facial nerve. The claimant developed inoperable lung cancer, and had only a short time to live. Judgment in default The defendant failed to serve a defence and the claimant obtained judgment in default. The claimant served an updated schedule of losses. The same day, the defendant served its counter-schedule. The counter-schedule admitted causation to a limited degree but disputed other aspects. At a case management conference, a master adjourned matters to enable the claimant to issue an application to strike out the counter-schedule. 109

The master ordered that judgment having been entered in default against the defendant, the matters pleaded in the particulars of claim were to stand as conclusive on the issues of breach of duty and causation there pleaded and it was therefore not open to the defendant to take issue with causation since that was a matter which, as far as he was concerned, was no longer in issue after the entering of the default judgment. The defendant appealed and also applied to set aside judgment in default.  The defendant submitted that in a negligence case in which there had to be damage in order for there to be a cause of action at all, a default judgment which provided that damages were to be assessed precluded a defendant from contesting the allegations of breach of duty contained in the particulars of claim and also from arguing that the claimant had suffered no damage, but did not prevent the defendant from contesting the extent to which the claimant’s injuries had been caused by the breaches of duty which have been admitted. The claimant submitted that the defendant having chosen, for whatever reason, not to acknowledge service nor serve a defence, it was now not open to him to take issue with causation. Although it was open to the defendant to challenge the quantification of the claimant’s damages but not other types of causation issues which went to liability rather than quantum.  The appeal would be allowed. The starting point was to look at the particulars of claim which were to be regarded as ‘a proxy’ for any default judgment obtained, in order to work out what the default judgment was to be taken as having decided, and whether, therefore, a defendant was trying to go behind the issues which that default judgment was to be taken as having determined. It was not ‘some injury’ which a defendant ‘must acknowledge … to a plaintiff before judgment could properly be entered against’ the defendant rather it had to be the actual injury which the claimant had himself been alleging. It did not matter that the claimant’s statement of case alleged that particular losses were caused: the defendant could argue that, whilst ‘some damage’ had been caused, it was not the damage alleged by the claimant in his statement of case (see [57] of the judgment).  The defendant was not precluded from advancing the causation arguments set out in his counter-schedule. Unless it could be said that the default judgment represented a decision that all of the damage alleged by the claimant had been suffered by him as a result of the defendant’s negligence, as opposed to some of the damage alleged (as opposed to merely ‘some damage’ which has not been alleged by the claimant), then, it had to be open to the defendant to advance its causation objections to the other aspects of damage alleged by the claimant. 110

However, there was no justification for a conclusion that the default judgment covered all the damage alleged (see [67] of the judgment). The defendant’s appeal would be allowed and defendant was not precluded from advancing the causation arguments set out in the defendant’s counter-schedule (see [95] of the judgment).

Workplace Stress-Harassment Daniel v Secretary of State for the Department of Health[2014] EWHC 2578 (QB), [2014] All ER (D) 290 (Jul) The claimant was employed by the defendant as a network co-ordinator of the West London Cancer Research Network (WLCRN) re-titled later as Cancer Research Network Manager. The claimant alleged that in the course of her employment with the defendant she suffered occupational stress which developed into a psychiatric condition leading to her becoming an inpatient at a mental health hospital and seriously continuing mental ill health. It was common ground that the claimant had a pre-existing history of bipolar disorder which carried a very high rate of recurrence. It was also common ground that the claimant’s pre-existing condition was unknown to the defendant. It was alleged that claimant’s stress and subsequent mental illness were brought about by the negligence of her employers in permitting her to be bullied by certain individuals. The alleged bullying and victimisation was not, it was contended on behalf of the claimant, properly dealt with by the defendant and it was therefore, reasonably foreseeable that such victimisation or bullying could lead to a risk of mental injury. The claimant also alleged that she had effectively two jobs to do and was consequently seriously overworked. The defendant, it was alleged, negligently permitted the overwork situation to continue, which contributed to the stress which the claimant was under, leading to her psychiatric injury. It was contended on behalf of the defendant that there was no bullying, that the claimant had willingly undertaken additional work responsibilities, that there was no foreseeable risk of injury, that if a duty on the part of the employers had arisen there was no breach, and causation had not been established.  The principal issues were whether there was a foreseeable risk that the claimant would suffer injury to her mental health arising out of stress at work, and whether impending harm to her health arising from that stress was plain enough for any reasonable employer to realise that he had to do something about it (duty of care issue). What needed to be considered was:

(i)

the conduct complained of by the claimant;

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(ii)

(iii) what were the indications of impending mental injury and whether they

whether such conduct caused occupational stress;

were plain enough for the defendant to realise that he should do something

about it.  The claim would be dismissed.  On the facts of the case no duty of care arose. Applying established principles, on the evidence, none of the conduct amounted to bullying within the meaning of that term. These conduct complained of when taken properly in context, had not amounted to conduct which was either genuinely offensive or oppressive and unacceptable or otherwise to amount to bullying. The claimant had not been ‘overworked’ in the sense that she was required to carry an excessive workload. Even if she had worked for long hours, she had done so willingly and made no complaint about it. It was the pressures of her job and her own perception of the conflict was one of the causes of the stress she suffered at work (see [168], [173], [176] of the judgment).

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Section9 September 2014

Contributory Negligence McLaughlin v Morrison and another[2014] CSOH 123 This was an action of damages in which the sum sued for was £8m. The pursuer was the guardian of JR by virtue of an order made under the Adults with Incapacity (Scotland) Act 2000. She averred that JR was injured on 22 May 2010 when he was standing in Royston Road, Glasgow. Suddenly and without warning, it was averred, the first defender drove a car at him at speed, hitting him and knocking him to the ground. On 19 July 2011 the first defender was convicted of assault to severe injury, permanent disfigurement, permanent impairment and to the danger of JR’s life. According to the pursuer’s averments JR sustained a serious brain injury as a result of which he was immobile, and cognitively impaired. He required full-time care. The second defender, Esure Services Ltd, was convened in terms of reg 3 of the European Communities (Rights against Insurers) Regulations 2002, SI 2002/3061. The pursuer averred that the second defender was directly liable to make reparation to her to the same extent as the first defender. Following a finding of liability against the second defender and an award of interim damages the case came before the court on the pursuer’s motion to allow a proof restricted to the issue of quantum. The second defender opposed that motion on the ground that it had averred that JR had suffered damage as the result partly of his own fault and, separately, that he had provoked the assault. The pursuer argued that the second defender’s averments on both of those issues were irrelevant and lacking in specification. The averments that were the subject of challenge averred that the accident occurred in the vicinity of premises known as the Ranza Bar on Royston Road, close to the Blackhill and Germiston areas of Glasgow. Those areas were utilised by organised criminals to run criminal enterprises. In the Blackhill area one enterprise was run by the M family; in the Germiston area one enterprise was run by the B family. Those criminal enterprises were often involved in rivalry with each other. The first defender was part of the M family that operated the criminal enterprise in the Blackhill area. The Ranza Bar was frequented by a number of members of that enterprise. The

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licensee of the premises was, at the material time, the first defender’s uncle. Shortly prior to the material incident a group of individuals had been involved in an attack on the Ranza Bar. The individuals were associated with the criminal enterprise run by the B family. Stones and other items were thrown at the premises. The group of individuals carrying out the attack had arrived in two cars, a Volkswagen Golf and a Landrover Discovery. JR was an associate of the B criminal enterprise. The Landrover Discovery was being driven by GB, with JR as a passenger. The Landrover and its occupants had been circling the area of the Ranza Bar for the purposes of assisting the occupants of the Volkswagen in a planned attack on the bar. The Landrover had been noticed by the first defender. She heard GB threaten her from the Landrover. The attack commenced when the occupants of the Volkswagen Golf― MM, CB, PMM and JB ―were decanted outside the bar. They threw items at the bar and shouted abuse, in an attempt to goad the occupants of the bar to come out, whereupon they would be attacked. They were all associates of, and acting in concert with, the occupants of the Landrover – including JR. During the initial attack on the premises JB was shot in the leg. Following the shooting he was picked up in the Volkswagen Golf. The Landrover Discovery was brought to a halt in the offside lane of the eastbound carriageway of Royston Road, close to the Ranza Bar. JR alighted. The Volkswagen then pulled up in the offside lane of the eastbound carriageway. JR stood at the Volkswagen’s nearside front window. He was engaged in conversation with the occupants of the vehicle. As he was standing there he was struck by the vehicle driven by the first defender. JR was at the locus of the accident to engage in criminal conduct, in particular to involve himself in the attack on the premises. In attending at the locus he was acting in concert with the occupants of the Landrover and the Volkswagen, all of whom were involved in the criminal acts of breaching the peace and conspiring to attack the Ranza Bar and persons within. Angered at what she rightly perceived to be an attack on her family’s premises and persons within, and in response thereto, the first defender deliberately drove at the vehicles and the group which had alighted therefrom. Senior counsel for the pursuer contended that the second defender’s contributory negligence case was bound to fail in fact and law. She drew attention to the terms of s 1 of the Law Reform (Contributory Negligence) Act 1945, as it applied in Scotland. Counsel cited three pre-1945 House of Lords decisions. She argued that those cases made it clear that, when considering whether or not there had been contributory negligence by a pursuer, it was necessary to identify ‘the effective cause’ of the accident at the moment when it occurred and not at an antecedent stage. The contributory negligence must be shown to be such that it actually and directly led in itself to the accident. The mere presence of a person at a place where he or she ought not to have been was wholly insufficient to establish the plea. 115

Any antecedent negligence was just part of the history. Relying on Co-operative Group (CSW) Ltd v Pritchard [2012] 1 All ER 205 counsel submitted that contributory negligence was not a defence to an action for damages caused by an intentional tort. The second defender’s pleadings on provocation were lacking in specification given that they were silent as to how or in what way JR provoked the first defender (who was not present at the scene of the disturbance) into deliberately driving her car at him. There was no relevant provocative act. The main primary facts averred were

(i)

JR was a passenger in the Land Rover and

(ii)

he got out of the Land Rover and talked to the occupants of the

Volkswagen. That was a wholly inadequate basis for either the plea

of contributory negligence or the plea of provocation. In order for

a plea of provocation to be considered there had to be a provoking

act by the victim towards the wrongdoer. The retaliation had to be

related to that act and it had to be proportionate. It must not be grossly

disproportionate to the victim’s actions. The cause of JR’s injuries was the

defenders’ driving of the car at him. The plea of contributory negligence

was bound to fail on causation. The lack of causation also informed the

provocation plea and that plea was bound to fail.

Second Defender Senior counsel for the second defender advanced three propositions in support of his submission that the averments on contributory negligence and provocation were fit for proof: (i) notwithstanding statements of high authority that a plea under the 1945 Act required the pre-1945 requirements of contributory negligence to be satisfied, those statements were not binding in Scotland and open to question; (ii) accepting Pritchard as the law of England, the law of Scotland was different in that, historically, provocation had been recognised as a defence, such that it could now found a plea of contributory negligence under the Act; (iii) in any event, provocation as a stand-alone defence in mitigation should proceed to inquiry. Referring to the pursuer’s reliance on the three pre-1945 cases, counsel challenged the notion that a defender needed to show that the ‘old rules’ would have operated to deny the claim in order to establish that a reduction in damages was available under the 1945 Act. The true position, he suggested, was that the 1945 Act did not import the entire pre-existing corpus of the law on contributory negligence: rather it focused on the sort of conduct which might found such a plea. What the Act required was that there should be culpa on the part of the pursuer which is a cause (not the cause) of the injury. It did not offend common sense to say that ‘a cause’ of injury in an assault 116

was turning up for the fight in the first place. Whilst provocation might not constitute a defence to an action of damages for assault in England, it did in Scotland. The court ruled: The starting point in determining whether either of the defences was bound to fail was to understand what was being said about JR and the first defender’s actings in the minutes leading up to and including the assault. Shortly prior to the attack on the Ranza Bar, JR was a passenger in the Land Rover. The Land Rover and its occupants had been circling the Ranza Bar for the purposes of assisting the occupants of the Volkswagen in a planned attack on the bar. The first defender had noticed the Land Rover as it was repeatedly driven past the Ranza Bar. After the shooting the Land Rover was brought to a halt in the eastbound carriageway of Royston Road, close to the Ranza Bar. JR got out. The Volkswagen pulled up in the offside lane of the eastbound carriageway, and JR stood at its nearside front window. As he was standing there he was struck by the car driven by the first defender. Angered by the attack on the Ranza Bar and those within the first defender deliberately drove at the vehicles and the group which had alighted therefrom. Having regard to those pleading it was unnecessary either to resolve the dispute as to whether the pre-1945 rules on contributory negligence must be applied or to determine whether Pritchard ought to be followed in Scotland. On no pre or post1945 view of causation could it be said that anything that JR was averred to have done caused or contributed to his injury. More particularly, on the second defender’s pleadings it could not be established that his injury was suffered ‘as the result partly of his own fault’. It was caused solely by his being run down by the first defender. The defence of contributory negligence was, therefore, bound to fail. Provocation by a pursuer could operate to reduce the amount of damages recoverable by him or her for an injury caused by an assault. It was clear from the authorities, however, that it must be established that the defender was provoked by something that the pursuer did or said. There must be a causal connection between the alleged act of provocation and the delictual response. Further, the act of provocation must be a wrongful act, otherwise an entirely innocent act which happened to anger an irrational wrongdoer would operate to exclude or mitigate damages for injury caused by the irrational wrongdoer’s unlawful act. It was necessary, therefore, to establish what behaviour by the victim operated on the mind of the wrongdoer and to what effect. In this case, none was pleaded. It was not averred that the first defender knew that JR was a passenger in the Land Rover. It was not averred that she saw him inside when she noticed the Land Rover passing the Ranza Bar, or that she saw him alight from it. It was not averred that she knew JR to be an associate

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of, or acting in concert with the occupants of the Volkswagen. The only actings said to be causally connected with the first defender’s attack on JR was the attack on the Ranza Bar and those inside. It was that which was said to have angered the first defender and, so angered, she drove at the vehicles and the group. It was not averred that her anger was occasioned by anything which she knew JR to have done. The second defender had, therefore, pleaded no relevant provocative act. The action would be appointed to a proof restricted to the issue of quantum.

s.33 Limitation Act Dowdall v Kenyon & Sons Ltd[2014] EWHC 2822 (QB) Queen’s Bench Division The claimant was employed by the first defendant as a labourer in the tax year 1963/64 and the second defendant in the years 1965/66, 1966/67, 1967/68, 1968/69 and 1972/73. During those periods of employment, he was working at the Stanlow Oil Refinery and the Burmah Oil Refinery in Ellesmere Port. Finally, he was employed by the third defendant as a rigger at the Shell Star in Ellesmere Port. The claimant alleged that he had, during each of these periods of employment, had heavy exposure to asbestos dust and it was common ground that in 1998 he was diagnosed as suffering from asbestosis and pleural plaques. The claimant had previously brought an action against eight other employers which had settled in 2003, the ‘first action’. In that settled action, the claimant had claimed damages for asbestosis and pleural plaques and damages for the risk of mesothelioma. By the present proceedings, the claimant claimed damages against the defendants for his contraction of pleural mesothelioma. The defendants contended that they would have joined in the 2003 settlement had they been sued at the time, and would therefore have had a complete defence to these proceedings, namely compromise. Each defendant relied on a limitation defence. In addition, the first defendant pleaded an estoppel and the third defendant had pleaded estoppel and abuse of process. The second defendant only pleaded a limitation defence. Despite the differences in pleading, three issues came to be decided as preliminary issues. It was to be noted that mesothelioma was not a divisible injury. It might be caused by a single fibre, although the risk was increased by exposure. It could not therefore be proved in the cases of each employer that the exposure for which it was responsible caused the condition. It could only be shown that, to the extent of that exposure, that employer increased the risk. In Fairchild v Glenhaven Funeral Services Ltd[2002] 3 All ER 305, the

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House of Lords held that there was a special rule of causation to be applied in cases of the instant kind, in which it was necessary to prove that a defendant increased the risk of the development of mesothelioma in order to recover in full against that defendant for the consequences. The issues were:

(i)

whether the proceedings were an abuse of the process of the court;

(ii)

whether and to what extent the 2003 settlement was relevant having regard

to the case of Jameson v Central Electricity Generating Board[1999] 1

All ER 193;

(iii) whether the claimant was estopped from bringing the proceedings;

(iii) whether the proceedings were barred by the provisions of the Limitation Act

1980, subject to s 33 of that Act.

The court ruled: (1) Where A had brought an action against B, a later action against B or C might be struck out where the second action was an abuse of process. A later action against B was much more likely to be held to be an abuse of process than a later action against C. It was one thing to say that A should bring all his claims against B in one action, whereas it was quite another thing to say that he should bring all his claims against B and C (let alone against B, C, D, E, F, and G) in one action. There might be many entirely legitimate reasons for a claimant deciding to bring an action against B first and, only later (and if necessary) against others (see [50] of the judgment). It would be wrong to hold that the proceedings were an abuse of the process of the court. The defendants had not been parties to the first action. That was not decisive as a matter of law, but was a factor of considerable weight. There had been no evidence that the claimant had manipulated the process of the court. He had not deliberately secured a lump sum for the risk of mesothelioma deliberately omitting the defendants from those proceedings so that he could sue them later if the risk came to pass. The decision not to sue those defendants had honestly been made and had been made because in each case the claimant and his solicitors had been unable to discover an insurer liable to meet the claim against them. That had been a reasonable and not an abusive decision making process (see [34] of the judgment). Johnson v Gore Wood & Co (a firm) [2004] All ER (D) 248 (Jan) considered. (2) Where there were concurrent tortfeasors, a settlement against one would not extinguish the claim against the other unless there had been full satisfaction of the entire claim (see [36] of the judgment). 119

The first action was for damages for asbestosis, depression and the risk of the development of three further different conditions also caused by asbestos exposure. The employers had not been concurrent tortfeasors in relation to the asbestosis and depression, but might have been in relation to the risks. The settlement resolved all those claims against the original defendants. In settling the claim as he had done, the claimant had plainly intended to extinguish his rights in relation to future mesothelioma against all the employers whom he had decided were worth suing. The claimant elected to accept a sum for the risk of mesothelioma and in return decided not to seek an order permitting him to return to court in the event that mesothelioma actually developed. The settlement deliberately excluded any sum which would follow from the development of the condition (see [37], [45], [46], [47] of the judgment). Fairchild v Glenhaven Funeral Services Ltd; Fox v Spousal (Midlands) Ltd; Matthews v Associated Portland Cement Manufacturers (1978) Ltd [2002] All ER (D) 139 (Jun) considered; Durham v BAI (Run Off) Ltd (in scheme of arrangement) [2012] All ER (D) 201 (Mar) considered; McGhee v National Coal Board [1972] 3 All ER 1008 considered; Jameson v Central Electricity Generating Board (Babcock Energy, third party) [2000] 1 AC 455 considered. (3) It was established law that on a literal construction of s 33(1) of the 1980 Act, it was relevant to the exercise of the discretion that the defendant would suffer the financial prejudice of having to pay the damages if the arbitrary time limit were to be disapplied. Parliament could not have intended that financial prejudice, as such, should be taken into account (see [58] of the judgment). All the competing factors were evenly balanced. There were significant arguments in both directions. The principal consideration had to be the fact that the claimant had a substantial claim for a very serious injury. The claimant had suffered a grievous injury by reason of contracting mesothelioma. The medical evidence in respect of his condition was uncontroversial. Each tortfeasor who had exposed the claimant to asbestos dust and had thereby materially increased the risk of mesothelioma was liable for the injury. He had very good prospects of establishing that the defendants contributed to the causation of the risk of that condition, and were liable for it by reason of the principle in Fairchild (see [63] of the judgment). The application for relief under s 33 in respect of all three defendant would be made (see [64] of the judgment). Cain v Francis; McKay v Hamlani [2008] All ER (D) 201 (Dec) considered; Horton v Sadler [2006] All ER (D) 130 (Jun) applied; Heaton v Axa Equity and Law Assurance Society plc [2002] All ER (D) 230 (Apr) considered. 120

Secondary Victims Young v MacVean [2014] CSOH 133 This was an action for damages arising out of a road traffic incident in which David Young (the deceased), who was born in March 1984, was killed by a dangerous driver. The pursuer was the deceasedâ&#x20AC;&#x2122;s mother. At around 4.30pm on 1 June 2010 the deceased was walking on the pavement of Danes Drive, Scotstoun, Glasgow, when he was struck by a car driven by the defender. The defender lost control of the vehicle which mounted the pavement. He was subsequently convicted of causing death by dangerous driving and was sentenced to a period of imprisonment. Liability in the case was admitted and the only issues before the court were (1), whether the pursuer met the criteria to be classed as a secondary victim and was thus entitled to damages for personal injury and (2), quantum. There was little if any dispute in the evidence. The principal witness was the pursuer. She was aged 59 at the date of proof. She had suffered previously the unexpected and sudden death of three of her close relatives. When she was aged 21 her father had left the house and suddenly died in the middle of the street, having suffered a stroke. It appeared that had had a significant affect on her. She married at the age of 27 and had two children, namely, the deceased and her second child, Stephanie, born in 1992. Her husband worked as a pipe fitter on oil rigs in the North Sea. When Stephanie was only four weeks old he left the family home to work offshore. Some days later he indicated in a telephone conversation that as the weather was bad he would not be working that day. Shortly thereafter she heard the news on television of a helicopter crash in the North Sea. She believed, having regard to her previous telephone conversation, that her husband would not have been involved. At about 2am the following morning she received a telephone call to be told that he was missing. She subsequently discovered that he had been on the helicopter when it crashed into the sea. The pursuer was seriously traumatised by that event. Unusually for the pursuer, she had not seen her son for some days prior to Tuesday 1 June 2010. She had been away from home for a short period. She had communicated with him on the Monday prior to the incident and had agreed that she would see him later at the gymnasium which they both attended in Scotstoun. On 1 June she finished her work at around 4pm and returned home. She left her house shortly after 5pm and noted on her approach to the gymnasium that there was a traffic jam resulting in traffic being diverted. Eventually she found a parking place in a side street and walked towards the centre. As she was doing so she was aware of police activity and streets being cordoned off. As she was passing the scene of the crash

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she was able to see a very badly damaged vehicle against a tree. Her immediate thought was that someone must have died. She said that the crash looked ‘so bad’ and the state of the vehicle ‘affected me’. On entering the gymnasium she heard people talking about the crash. Dr McL, the psychiatrist who later gave evidence, described the pursuer’s mood at that point as being ‘preoccupied by the accident’. It appeared that the pursuer had asked staff to page her son because she did not see him around, as expected. The pursuer stated in her evidence that a friend had overheard that a 20-year-old boy had been knocked down. The pursuer had started her exercise class but after the warm up had stopped for a drink of water. She noticed that her phone showed that there had been six missed calls. At that point she became scared. The calls were from her daughter Stephanie, whom she phoned to discover that police had been at the house. The pursuer shouted to her friend that she thought that the victim of the ‘accident’ was her son David. She went to the desk to ask them to check the computer to find out whether he had signed in. He had not. Dr McL’s evidence was that at that point the pursuer was almost hysterical, screaming and desperate to see her son. Her friend was trying to comfort her. It appeared that a member of staff had left the gymnasium to speak to police outside. The pursuer was aware of police officers entering the gymnasium. She kept shouting ‘Is it David, is it David’. She was taken upstairs to an office. There she was asked if David had a tattoo and when she said he had, she was told that he was dead. At that point she remembered screaming and shouting words such as ‘I don’t think I can go through this again. I can’t do this’. She was taken to a police car and then escorted home. Eventually she was taken to the mortuary where she had to identify her son. The pursuer sought damages under several separate heads of claim. She argued that she came within the definition of a secondary victim and was thus entitled to damages for personal injury. That would include a claim for solatium; wage loss; cost of psychology treatment; and a claim under s 8 of the Administration of Justice Act 1982. She also sought damages as the deceased’s mother for distress, grief and loss of society under s 4(3)(b) of the Damages (Scotland) Act 2011; loss of financial support; and loss of personal services in terms of s 9 of the Administration of Justice Act 1982. Quantum was agreed under a number of those heads. There did not appear to the court to be any real disagreement between the parties that the pursuer had suffered a serious psychological injury as a result of her son’s death. Apart from quantum, the main issue in dispute was as to the direct cause of that psychological injury: was it the shock of coming upon the aftermath of the incident, or was it the shock of being told that her son had died? If the injury was as a result of coming upon the aftermath of the crash scene and if the pursuer satisfied the other

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elements required then she would fall within the definition of secondary victim. If, on the other hand, she suffered injury as a result of the shock of being told about her son’s death then she would fail on one of the main heads of claim. Senior counsel for the pursuer submitted that Dr McL in particular thought that the series of events leading up to the pursuer’s knowledge that her son had been killed were all part of the same episode and had a material effect on her psychiatric condition. Dr McL was of the view that the relevant events, so far as the pursuer was concerned, commenced with seeing the scene of the wrecked car and culminated with the police telling her that her son was dead. The pursuer’s perception of what occurred commenced when she passed the scene of the crash. She could see police cars and she immediately thought that whoever was involved was probably dead or seriously injured. It brought back memories of her husband, thus making her more predisposed to serious shock reaction. Counsel submitted that the psychiatric evidence was not really in dispute. It was clear that there was a continuous event from seeing the scene to the police confirming David’s death. The pursuer’s psychiatric condition directly related to what she saw at the scene and what occurred thereafter. The court ruled: (1) Counsel appeared to be agreed that there was no clear legal principle to be applied in determining who was or was not a secondary victim. The facts of the cases to which the court was referred supported that agreed view. What was clear, however, was that the courts had adopted a restrictive approach to the determination of who fell within the definition. Strict control mechanisms had been considered necessary and applied. Having regard to the control mechanisms and applying them to the facts of the instant case the court considered that the pursuer did come within the class of secondary victim. She certainly came upon the aftermath of the accident. She saw the very badly damaged car up against the tree. The pursuer said that the state of the car ‘affected’ her. She had appreciated that the damage to the vehicle was such that someone must have died. It was, on the evidence, not long before she began to realise that it might have been her son who was involved and that was before his identity was confirmed by the police. The parole evidence from the pursuer, taken together with the evidence as to what she told the medical witnesses and the evidence from the police officer who first spoke to her, all led the court to the conclusion that, before David’s identity was confirmed, she already had a very strong suspicion that he had been involved in a serious incident with the mangled vehicle she had just seen. The evidence revealed that the pursuer had shouted to her friend that she thought David was the victim and she asked the staff at the gymnasium to check if he had arrived. She was being 123

already comforted by her friend. If she had not already been in a distressed state why would a staff member have seen fit to leave the gymnasium to request that a police officer come and speak to the pursuer? The officer described the pursuer as very upset when she entered. When the pursuer saw the police she was shouting to her friend to ask them ‘is it David?’ She kept shouting that same phrase. Dr McL said that at that point she was nearly hysterical. The court appreciated that that might be Dr McL’s interpretation of what the pursuer said to her, but on the evidence it heard the court was of the view that the pursuer was clearly very upset before she had had the death confirmed; her shock was not caused by just being told about her son’s death but had started before that. In any event, the period of time between her coming upon the accident and her first contact with the police was not long. It would be wholly artificial to separate her coming upon the aftermath from receiving confirmation of her son’s identity. The pursuer began to feel uncomfortable very shortly after viewing the wrecked vehicle; her suspicions about her son’s involvement began fairly soon thereafter; and she was distressed prior to her confrontation with the police who confirmed his identity. Looking at the series of events, taken together with the other facts of the case, the court concluded that, after applying all of the relevant control mechanisms, the pursuer should be classed as a secondary victim. Taylor v A Novo (UK) Ltd [2014] QB 150, [2013] All ER (D) 167 (Mar) applied. (2) Quantum. (i) Distress, grief and loss of society. In making an award under this head the court acknowledged that it should have no regard whatsoever to the psychological injury the pursuer suffered. Any such injury could only be compensated under an award of solatium for a personal injuries claim. The court should also ignore any suggestion of abnormal grief response under this head. What it was entitled to consider, however, was the fact that the pursuer had a particularly close relationship with her son. No doubt that was affected by her untimely loss of her husband and the resultant closeness which developed between mother and son thereafter. To that extent it could be said, as Dr McL suggested, that the relationship between mother and son was unusual. While there was an accepted hierarchy in cases of loss of society awards the court could not ignore the evidence in the instant case of the exceptional and unusual closeness between the pursuer and her son. It also could not ignore the evidence from both psychiatrists that, as far as the medical professionals were concerned, there was no greater loss than that of an adolescent or young adult child. There continued to be a significant disparity between judicial and jury awards. It was clear, however, that the court was entitled to and should look at relevant jury awards in coming to a view about an appropriate sum under this head, while having regard to relevant previous judicial awards. In the court’s view the ‘Nimrod’ cases were relevant. The 124

court acknowledged, however, that those cases concerned the death of serving members of the armed forces in Afghanistan and that might have influenced the high level of awards made (90,000 to a 54-year-old parent of a 21-year-old deceased; £98,000 to each parent aged 62 and 68 of a 27-year-old deceased; and £100,000 to a 53-year-old parent of a 28-year-old deceased). In addition there was now a recent jury award of £86,000 in Scott v Parkes. The court should exercise a degree of caution in relation to that award as it did not know the precise facts of it nor the relationship between mother and son. However it did appear that the case was relevant as the age range was not dissimilar, nor was the nature of the incident which led to death. The court also recognised that there has been a general uplift of awards since Bellingham v Todd and Wolff v John Moulds (Kilmarnock) Ltd. However, there appeared to be no consistent pattern of percentage increases. The court considered that a reasonable award under this head would be £80,000. Shaher v British Aerospace Flying College Ltd 2003 SC 540, Young v Advocate General for Scotland 2011 Rep LR 39, Dicketts v Advocate General for Scotland 2011 Rep LR 40, Swarbrick v Advocate General for Scotland 2011 Rep LR 40, Bellingham v Todd 2011 Scot (D) 8/5, 2011 SLT 1124, 2012 SCLR 491, Wolff v John Moulds (Kilmarnock) Ltd 2011 Scot (D) 3/11, 2011 SLT 231, Hamilton v Ferguson Transport (Spean Bridge) Ltd; Thomson v Dennis Thomson Builders Ltd 2012 Scot (D) 10/6, 2012 SLT 715, 2012 SCLR 707, Currie v Esure Services Ltd 2014 CSOH 34, 2014 Scot (D) 3/2 and Scott v Parkes (23 May, 2014, unreported) considered. (ii) Loss of financial support. The pursuer estimated the deceased’s financial contribution to her to be approximately £1000 pa. The court was invited to take ‘a broad brush’ approach. The claim under this head was assessed at £3,625 for past loss over three years and 7½ months. In respect of future loss of financial support, a multiplier of 19.95 should be used. The calculation for that was £19,950. The defender submitted that this head had not been properly established in the evidence. Having regard to the terms of s 7 of the Damages (Scotland) Act 2011 the court agreed with senior counsel for the defender that the pursuer had to prove the actual amount of the loss suffered. In the context of the relationship between mother and son it was perhaps understandable that the evidence was very sparse and general but there was no vouching for any loss of support. The pursuer estimated that she might receive in the region of £1000 a year in the form of presents and donations but as the evidence disclosed, she also supplied the deceased with money on occasion. As a result the court was not prepared to award the sums the pursuer sought. Senior counsel for the defender was prepared to concede the sum of £2,500 inclusive of interest. The court would award that sum under this head.

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(iii) Personal services. The evidence disclosed that the deceased assisted his mother in a number of household tasks. It was also submitted that given the very close relationship between them there was an expectation that he would continue to support her and undertake such services in the future. Counsel for the pursuer estimated the sum per annum as £1250, allocating 3 years and 7½ months for past loss. In respect of future loss, applying the Ogden table, a multiplier of 19.95 was suggested. Taking a broad brush approach, as was suggested, and again having regard to the very special and close relationship that the pursuer had with the deceased, the court had no doubt that he would continue to support his mother in a very practical way until she was well into old age. In those circumstances the sums the pursuer sought and the multiplier applied were reasonable and the court was prepared to award £5,190 including interest, for past loss and £24,940, using the multiplier of 19.95, in respect of future loss. (iv) Solatium. The pursuer had suffered a serious psychological injury. Professor F, the only witness for the defenders, conceded that post-traumatic stress disorder (PTSD) was not an unreasonable diagnosis in all of the circumstances. Both medical witnesses for the pursuer thought that the pursuer had indeed suffered from PTSD. On that basis the court was prepared to treat the case in that way. There was no doubt on the evidence that the pursuer’s quality of life had been permanently affected. It was also obvious that she suffered from an abnormal and complex grief response and a major depressive disorder. Having regard to the symptoms the pursuer suffered after the death, those from which she continued to suffer and the prognosis for her condition, the court considered that an appropriate classification of her condition, using the Judicial College Guidelines Part 4, was in the region of ‘moderately severe’. Any award should be at the higher end of that. A reasonable award would be £35,000.

Contempt Zurich Insurance plc v Kay and others [2014] EWHC 2734 (QB) The defendant allegedly sustained an injury as a result of a slipping hazard in a car park in St Helens which was the responsibility of Westgrove cleaning services. Westgrove was insured by the claimant Zurich in respect of its potential liability and made a claim against the claimant in respect of a fall sustained. The first defendant’s account of the accident had been supported in witness statements provided by the second and third defendants who were his wife and stepson respectively. The first defendant valued his claim to be in the region of £750,000. That was apparently to include the loss of his employment earnings as subsequent to the accident and injury he and another contracts manager had been made redundant. The redundancy

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had been the subject of a successful unfair dismissal claim in the employment tribunal. The claimant alleged that the first defendant sustained the injuries in a fall while on holiday abroad. Upon receipt of that claim, the claimant obtained disclosure of the defendantâ&#x20AC;&#x2122;s personnel file to test his assertion that his redundancy was, in reality, brought about by his injuries. The documents, made no mention of his injuries or of their alleged impact on his ability to discharge his role. The claimant applied to the court to commit the three defendants to prison for contempt of court. The claimant contended that his case was based on an audacious lie and that the first defendant and his family had attempted fraudulently to repackage a vacation mishap as a very valuable claim for compensation. To succeed in the application the claimant had to prove the alleged deception to the criminal standard. The claimant submitted that the evidence suggested that:

(i)

that the first defendant had told his colleagues after his return from holiday

that he had fallen whilst abroad;

the first defendantâ&#x20AC;&#x2122;s credibility generally was poor and that he had a

(ii)

(iii) the route alleged to have been taken by the first defendant through the car

propensity to lie to serve his own ends;

park and his motive for the journey were both implausible; and

(iv) the evidence of his wife and stepson was untrue and motivated by the

imperative of bolstering up his case that the accident had happened in the

car park. The application would be dismissed. After a lengthy and detailed consideration of the evidence, and with the advantage of having been able to assess the demeanour of the witnesses who had given evidence the court could not be satisfied so that it was sure that the first defendant his wife and stepson had lied about where the accident had happened. It followed that the applications to commit the defendants for contempt had to fail. (see [71], [73] of the judgment).

Wagenaar v Weekend Travel Ltd. (t/a Ski Weekend) [2014] EWCA Civ 1105 CPR r.44.13 applied the qualified one-way costs shifting rules to a single claim against a defendant which included a claim for damages for personal injury. It did not apply them to the entire action in which a claim for damages for personal injury was made.

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Thus the QOCS rules did not apply to an additional claim under CPR Pt 20 in which parties were disputing responsibility for the payment of damages. At first-instance the claim was dismissed (as was a Part 20 claim against a Third Party). The claim was funded by BTE insurance and the Court held that the new CPR 44.13-44.14 applied to the claim, even though the Defendant’s Counsel acted on a CFA that pre-dated April 2013. As a result, while the Claimant was liable for the Defendant’s costs, they could not be enforced, nor could those of the Third Party. The Defendant and Third Party both appealed. The Defendant initially submitted that the new CPR was ultra vires, but after considering s. 51(3) Senior Courts Act 1981, the Court held that they were not. The Defendant then submitted that it was unfair for the new Rules to be retrospective. The Court held that there is always a cut-off point and that there is no general rule that procedural changes are not retrospective. It also noted that none of the exemptions in CPR 44.17 applied, and so this point was also rejected. The Defendant further submitted that its own Counsel’s CFA should be enforceable because it pre-dated the changes. However, this was also rejected because of the lack of applicable exemptions under CPR 44.17. The Court then turned to the Third Party’s costs. It noted that the Part 20 claim had been defeated, and that there was nothing in the Jackson Report to suggest that QOWCS applied between a Defendant and Third Parties, or between coDefendants. Therefore, the Court held that the usual rule applied. As a result, the Court held that the Defendant was unable to claim its own costs, and had to pay the Third Party’s

Historic Sexual Abuse JXL and another v Britton [2014] EWHC 2571 (QB) JXL and SXC, the claimants, were sisters. In 1989, when they were children, the defendant raped them. JXL was 10 or 11 years old at the time, and SXC was 7 or 8 years. SXC was raped twice, and JXL once. The second rape of SXC happened at the same time as the offence against JXL. The defendant was acquitted at his trial of the first count in relation to SXC, but convicted of the second offence relating to the occasion when both claimants were raped. The claimants brought a claim against the defendant for personal injury. Judgment was entered in default of his entering of an appearance. There was a hearing to assess the damages payable by the defendant to the claimants.

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Essentially, the claim was advanced in three parts

(i)

damages for the rape;

(ii)

damages for the psychiatric consequences of the rape; and

(iii) aggravated damages. Although JXL had now been able to work, SXC

had not been able to work in paid employment with any regularity, and

the expert evidence demonstrated that she would never be able to do so.

There had been no serious physical violence, and the extent of

any false imprisonment had been short.

In relation to assessment of quantum of general damages, it was relevant to note that JXL had suffered vaginal rape, and a subsequent sexual assault when the defendant attempted to touch her breasts and hug her. That had caused permanent Post-Traumatic Stress Disorder (PTSD), with symptoms of flashbacks, hypervigilance, and psychosexual aversion/poor libido. She also suffered poor selfconfidence and esteem. While therapy was expected to reduce her symptoms in the future, she would always have some permanent symptoms of PTSD. It was submitted on behalf of JXL that her general damages should be assessed on the basis that she was entitled first to be compensated for the actual sexual abuse to which she had been made subject in her childhood, and then for the psychological symptoms (the PTSD) with which she has been left permanently as a consequence of Pierce v Doncaster[2007] All ER (D) 136 (Dec). SXC had suffered vaginal rape on two separate occasions, within a couple of weeks. The events caused her to suffer from Emotionally Unstable Personality Disorder (EUPD), with symptoms of poor selfesteem, fear of rejection, recurrent self-harm, substance abuse and unstable mood. She suffered from substance dependency. She had suffered PTSD, the symptoms of which were comparable to those sustained by JXL. Eighteen months of intensive therapy was expected to reduce her symptoms in the future, but she would always have some permanent symptoms of both EUPD and PTSD. SXC contended that the two rapes to which she had been made subject were of a nature such that an award of aggravated damages ought to follow. SXC contended that an award of approximately ÂŁ25,000 for aggravated damages (ÂŁ5,000 more than was applied for on behalf of JXL, to reflect the fact that SXC had been raped by the defendant twice) was appropriate to compensate her for the injury to her feelings, humiliation, loss of pride and feelings of chronic anger and resentment towards D, all of which, like JXL, SXC would argue were separate to the basis for the compensation to which she asserted she was entitled by way of general damages (AT & ors v Dulghieru[2009] All ER (D) 194 (Feb)). Consideration was given to the Guidelines.

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The court ruled: The crime of rape of a child involved the infliction of physical pain as well as the traumatising of the child. It would often have serious, lifelong after effects. It was difficult and unrealistic to draw a firm line between the immediate effects of the rape and the psychological consequences. The real adverse impact of a traumatic crime would often be seen most clearly in the impact it had had on the mental state of the victim. The most significant factor in determining the final size of the award was usually therefore be the psychiatric or psychological evidence, and the evidence of the victim about the consequences of the offending for her. There was no difference between male and female victims of sexual crime in the principle as far as quantifying damages was concerned. Some of the decided cases concerned long campaigns of abuse directed by a defendant against the victim. The very young ages of the victims at the time of the offending tended to increase the awards. In the end, both elements of the award where aggravated damages were awarded were compensatory and not punitive and the court had to assess the total of the final award to ensure that it was proportionate in the result (see [24], [29]-[28] of the judgment). The case was in the moderately severe bracket for psychiatric damage in the Guidelines. In the instant case, the impact on SXC had been substantially more severe than it had been on JXL. She had been raped twice, and suffered a more serious psychiatric illness. That had not minimised the offences against JXL, it had merely stated that she had been able to survive them more successfully than her sister. Both of them had been very significantly affected and always would be. Although JXL had now been able to work, SXC had not been able to work in paid employment with any regularity, and the expert evidence demonstrated that she would never be able to do so. There had been no serious physical violence, and the extent of any false imprisonment had been short. Some improvement was expected in each of the cases following treatment, but each claimant had suffered without treatment for decades. They had lost their childhoods and youth. JXL had suffered serious damage to her marriage which might have unpredictable and damaging results. SXC had suffered even greater damage to her life from which she would never recover, the award should be higher, within that bracket, than awards for otherwise similar levels of psychiatric harm in personal injury claims (see [29] of the judgment). The general damages to be awarded were JXL, £32,500 and SXC, 40,000 with a total award of £131,674 going to JXL and £232,360 going to SXC

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(see [29],[32] of the judgment). Griffiths v Williams (1995) Times, 24 November considered; Lawson v Glaves-Smith (executrix of Dawes (decd)) [2006] All ER (D) 169 (Nov) considered; AT v Dulghieru [2009] All ER (D) 194 (Feb) considered; Pierce v Doncaster Metropolitan Borough Council [2008] All ER (D) 136 (Dec) considered.

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Section 10 October 2014

Limitation and Occupiers Liability Act Macarthy (Executor of the Estate of Heward, deceased) v Marks & Spencer plc[2014] EWHC 3183 (QB), [2014] ALL ER (D) 105 (Oct) The action arose out of the death of JH, (the deceased) in 2009, he was 61 years old. He died from mesothelioma attributable to asbestos dust. He was diagnosed with mesothelioma in May 2006, following symptoms that began in 2005. He had worked for a family company, the third party, initially as an employee, then a director, and latterly as managing director. The business was shop fitting. The evidence showed that the deceased had been exposed to asbestos on two occasions. First, whilst working in the summer of 1967 as a joiner, where installation of asbestolux ceiling tiles was being carried out over a period of about three weeks. The deceased was not provided with any protection. The second occasion was whilst carrying out surveys and inspections of ceiling voids between 1967 and 1983 at the defendant’s stores. He regularly carried out those type of inspections with no personal protective equipment until 1984 when the defendant introduced procedures for those contractors who came into contact with asbestos. The deceased brought a claim. Expert evidence was adduced by both sides, the deceased’s expert particularly relied upon the advice in the HSE Guidance Note EH 10 (1976), that ‘exposure to all forms of asbestos dust should be reduced to the minimum that is reasonably practicable’. Both experts were agreed that the levels of asbestos dust that the deceased would have been exposed to, whilst surveying and inspecting the ceiling voids, would have been less than the hygiene or control limit in force at the relevant times. There was a direction that the issue of the defendant’s liability to the deceased and the third party’s liability to the defendant should be tried as a preliminary issue. In Williams v University of Birmingham & Anr [2011] All ER (D) 25 (Nov) there was a summary of the legal principles to be applied where a claimant alleged that the defendant was liable in negligence at common law for the consequences of a victim contracting mesothelioma, in particular questions relating to foreseeability.

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Consideration was given to the Occupiers Liability Act 1957. The factual issues to be determined were:

(i)

whether the deceased had contracted mesothelioma;

(ii)

whether the deceased was exposed to asbestos dust during the course of

his work at the defendant stores, and if so whether that exposure caused

mesothelioma; and

(iii) what was the extent of his asbestos exposure.

The legal issues were:

(i)

whether the defendant was in breach of the common law duty of care

owed to the deceased, whilst he was working at the York store in 1967; and

subsequently whether the in breach of s 2 of the Occupiers Liability Act 1957

(ii)

whilst he was inspecting the ceiling voids at their premises.

The court ruled: On the facts, the court was satisfied that the deceased’s mesothelioma had been caused by exposure to asbestos in an occupational setting. Asbestos had been used extensively in the defendant’s stores, particularly as ceiling tiles. The deceased had contracted mesothelioma whilst he was carrying out work for the third party at the defendant’s stores sometime between 1967 and 1984. No written warnings or guidance were provided to the deceased or third party by the defendant before 1984. It was probably not until 1976 that the defendant had knowledge that specialist contractors working in confined spaces with asbestos, as opposed to accessing confined spaces, should wear approved respiratory protective equipment and protective clothing. Assessed by the standards of the time, it was not reasonably foreseeable that the defendant should have appreciated that the presence of asbestos dust was likely to be injurious to the health of other contractors on site, who came into contact with asbestos dust, certainly not in the quantities, which the experts were agreed were involved. The phrase ‘so far as is reasonably practicable’ contained in guidance note HSE EH 10 (1976) did not extend by the standards of the time to requiring protective respiratory equipment and clothing to be used whilst the deceased was carrying out inspections.

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Accordingly, the defendant was not in breach of its common duty of care under s 2(2) of the Occupiers Liability Act 1957 ‘to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe’ in the circumstances that prevailed at the time (see [72], [77], [78], [89], [90], [94] of the judgment).  The claim against the defendant failed on both the exposure to asbestos that the deceased had experienced in the defendant’s store in 1967, and in stores subsequently, whilst inspecting store premises (see [98] of the judgment).

JURISDICTION RTA Germany COUNCIL REGULATION EC 864/2007, ART 4 Winrow v Hemphill[2014] EWHC 3164 (QB), [2014] All ER (D) 65 (Oct) The claimant was a rear seat passenger in a motor vehicle driven by the first defendant. The motor car was involved in a head-on collision with another vehicle driven by a German national. Liability was conceded by the first defendant’s insurer, the second defendant. The second defendant was domiciled in England. Proceedings were issued in England. At the time of the accident the claimant had been living in Germany for about eight and a half years, having moved there with her husband who was in the Army and had been posted there. She was a UK national, as was the first defendant. The claimant remained in Germany for a further eighteen months after the accident during which time she received a significant amount of medical treatment for her injuries. The claimant and the first defendant subsequently changed their habitual residences to the United Kingdom. German Law? By their defence, the second defendant insurers stated that ‘pursuant to Article 4(1) of Regulation (EC) 864/2007 (on the law applicable to non-contractual obligations) (Rome II), German law was the law applicable to all issues arising out of the accident, including but not limited to the availability of a cause of action giving rise to actionable damage, identification of recoverable heads of loss or damage and mitigation’.  The issue for determination was whether German or English law applied to the assessment of damages. The determination of the preliminary issue turned on the interpretation and application of art 4 of Council Regulation EC 864/2007 (on the law applicable to non-contractual obligations) (‘Rome II’).

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The claimant accepted that if art 4(1) was not displaced, German law would apply to the assessment of damages in the case. However she contended that the rule in art 4(1) was displaced by arts 4(2) or 4(3), the latter being principally relied upon.  The court ruled: (1) Article 4 of Rome II applied to all torts. Article 4(2) was to be seen as an exception to the general rule that the lex loci damni, the law of the place of the tort, was the law to be applied. Article 4(3) was to be understood as an ‘escape clause’ from art 4(1) and 4(2). The escape clause only applied where there was a manifestly closer connection with a different country than that mandated by art 4(1) or 4(2) (see [38] of the judgment).  On the facts, the claimant had not established that the law of the tort indicated by art 4(1), German law, had been displaced by art 4(2). The claimant had been living and working in Germany for eight and a half years by the time of the accident. She was living there with her husband. The residence of the claimant in Germany was established for a considerable period of time. The fact that the claimant and her family were living in Germany because the Army had posted her husband there and that it was not his first choice does not render her presence there involuntary. The habitual residence of the claimant at the time of her accident was Germany (see [41] of the judgments).  (2) The standard required to satisfy art 4(3) was high. The party seeking to disapply art 4(1) or 4(2) has to show that the tort was manifestly more closely connected with a country other than that indicated by art 4(1) or 4(2). The link of the consequences of the tort to a particular country would be considered as a relevant factor for the purposes of art 4(3). Article 4(3) placed a high hurdle in the path of a party seeking to displace the law indicated by art 4(1) or 4(2) (see [42], [50], [63] of the judgment). Under Article 4(3) the court had to be satisfied that the tort was manifestly more closely connected with English law than German law. Taking into account all the circumstances, the relevant factors did not indicate a manifestly closer connection of the tort with England than with Germany. The law indicated by art 4(1) was not displaced by art 4(3) (see [63] of the judgment).  The law applicable to the claim in tort was therefore German law (see [63] of the judgment)

Costs Judicial Review Recoverable Success Fees R (on the application of Whitson) v Secretary of State for Justice [2014] EWHC 3044 (Admin), [2014] All ER (D) 24 (Oct)

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Sections 44 and 46 of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (the provisions) prevented the recovery of success fees and insurance premiums paid by successful claimants from unsuccessful defendants in respect of almost all types of civil proceedings. However, by virtue of s 48(1) of the Act, the provisions were not to apply to proceedings relating to any claim for damages in respect of diffuse mesothelioma until the defendant Secretary of State had:

(i)

carried out a review of the likely effect of the provisions in relation to such

proceedings; and

(ii)

published a report of the conclusions of the review. The Secretary of

State issued a consultation document ‘Reforming mesothelioma claims –

a consultation on proposals to speed up the settlement of mesothelioma

claims in England and Wales’ after which he decided to bring into force

the provisions in relation to mesothelioma claims. The claimant chairman of

the Asbestos Victims Support Groups Forum, an unincorporated association

which represented different asbestos victims support groups through the

United Kingdom, sought judicial review.

The claimant contended that:

(i)

the meaning of s 48 of the Act was that the review had been required

in order to produce a rational justification for the removal of the exemption

of mesothelioma cases from the operation of the provisions;

(ii)

he had a procedural legitimate expectation arising from a Ministerial

statement in the House of Commons, that the review would encompass

all the factors discussed in that debate, which the Secretary of State had

failed to meet; and

(iii) the Secretary of State had not carried out a review sufficient to comply with

the requirements of s 48(1) of the Act.

The application would be allowed.  (1) Section 48 of the Act had not given any indication as to what should occur after the review had been concluded or whether the outcome of the review should determine the bringing into force of the provisions in relation to mesothelioma claims. However, it set out in clear terms what was to be done by the Secretary of State. He had to carry out a review of the likely effect of removing the recoverability from the unsuccessful party of success fees and after the event insurance premiums in claims for damages for diffuse mesothelioma. Implicit in the requirement placed on the

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Secretary of State was that the review should be a proper review sufficient to identify the likely effect of the Act’s changes on mesothelioma claims. It was inconceivable that Parliament would have required a Minister of the Crown to conduct a statutory review otherwise. To ascribe a particular motivation for the review required by s 48 of the Act was not justified by the terms of the section and was not necessary to understand the duty placed on the Secretary of State (see [19], [20] of the judgment).  (2) Nothing that had been said by the Minister in the House of Commons had given rise to any legitimate expectation of the kind contended for by the claimant. What he had said had been far from an unequivocal assurance as to the nature of the review. At best he had said that the government would consider what had been said in the debate when setting the terms of reference of any review (see [22] of the judgment).  (3) As the title of the consultation document suggested, it had been concerned principally with proposals relating to how mesothelioma claims should be progressed. Viewed as a whole, the consultation document objectively had not been in such terms as would provide the Secretary of State with what he had needed for his review. Further, the evidence demonstrated no proper review prior to the consultation. Accordingly, the Secretary of State had not conducted a proper review of the likely effect of the Act reforms on mesothelioma claims. No reasonable Secretary of State faced with the duty imposed on him by s 48 of the Act would have considered that the exercise in fact carried out had fulfilled that duty. The consultation exercise had not been per se an inappropriate means of fulfilling the duty. Rather, the nature of the consultation had meant that it had not permitted the Secretary of State to do so. Given the fact that the Secretary of State, by reason of the course he had adopted, had not reviewed the likely effects of the Act on mesothelioma cases in any meaningful sense, it could not be concluded that he would be bound to make the same decision after a review as required by s 48 of the Act. The present case was not one in which the procedural failing had been minor or technical in nature (see [25], [31], [35], [37], [38] of the judgment).

Damages- Causation Reaney v University Hospital of North Staffordshire NHS Trust[2014] EWHC 3016 (QB), [2014] All ER (D) 153 (Sep) In December 2008, the claimant, then aged 61, was diagnosed with transverse myelitis. She failed to recover in any significant way and remained paralysed below the mid-thoracic level.

137

During an extended period of hospitalisation, the claimant developed a number of deep (grade 4) pressure sores with the consequent infection of the bone marrow, abnormal shortening of the muscle tissue of her legs and a hip dislocation. The claimant issued proceedings against the defendants and they admitted negligence. The issue for determination was the extent to which the pressure sores and their sequelae had made the claimant’s essential condition worse than it would have been but for their development and what damages should be paid by the defendants in respect of her condition.  The court ruled: It was an established principle that the court should award a sum of money which would put the party who had been injured or who had suffered in the same position as he would have been in if he had not sustained the wrong for which he was getting his compensation or reparation. There could be no doubt that a defendant could not be held to be liable for loss or damage that he had not caused or to which he had made no material contribution. However, where a defendant had been shown to have done one or other of those things in relation to an injury sustained by a claimant, then that claimant was entitled to full compensation. Further, a defendant had to take his victim as he found him and, if that involved making the claimant’s current damaged condition worse, then the defendant had to make full compensation for that worsened condition (see [65], [66], [70] of the judgment).  On the evidence, the defendants’ negligence had made the claimant’s position materially and significantly worse than it would have been but for that negligence. She would not have required the significant care package and the accommodation consequent upon it that she required but for that negligence. Accordingly, causation was established. Gratuitous Care Further, there was no reason for departing from the established figure of a 25% reduction for gratuitous care and the claimant’s life expectancy was until the age of 78. Given the materially worse position that the consequences of the admitted negligence had led to, an award that neither over-compensated nor undercompensated for pain, suffering and loss of amenity was £115,000. As to future care, six months of two carer waking care at night in the present accommodation was a reasonable claim to make, which should then change in new accommodation to a one sleeping and one waking carer regime (see [71], [73], [74], [78], [79] of the judgment).

138

Appeals Landau v (1) The Big Bus Company Limited (2) Pawel Zeital [2014] EWCA Civ 1102 The Claimant sustained a serious injury to his right leg, which consequently necessitated a below-knee amputation, as a result of a road traffic accident in which his motor scooter became trapped between a tourist bus operated by the First Defendant and a car driven by the Second Defendant on proceeding from a set of traffic lights at a junction in Trafalgar Square, London. His claims in negligence against the two defendants were the subject of a trial of liability in the Queen’s Bench Division before Foskett J. The Claimant’s case at trial was that given neither of the defendant drivers had seen the Claimant at the traffic lights the drivers had failed to keep an adequate look out, and given that the junction was wide enough for all three vehicles to proceed safely the collision had occurred because the defendant drivers had failed to maintain lane discipline and keep a safe distance. In his judgment handed down on 7 October 2013 (see [2013] EWHC 3281 (QB)), Foskett J dismissed the Claimant’s claims. He found that the Claimant had been in the blind spots of the defendant drivers at the traffic lights and concluded that both defendant drivers had taken all reasonable care when proceeding from the junction, holding that to have expected them to have driven in a different way would be to impose a ‘counsel of perfection on them’. He further held that even if the drivers had seen the Claimant before proceeding from the traffic lights, no fault was attributable to them because they were entitled to assume that the Claimant would hold back and not pass between the vehicles. Even if the driving of the defendant drivers had been negligent, Foskett J also held that the Claimant was in any case 75% to blame for the accident. The Claimant appealed Foskett J’s findings of fact. The Court of Appeal, with the majority judgment given by Richards LJ with whom Sullivan and Black LJJ agreed, dismissed the Claimant’s appeal on all grounds. In doing so, the Court held at paragraph 18 that: “in so far as the grounds of appeal seek to take issue with the judge’s findings of fact, it is necessary to keep in mind the well-recognised reluctance of appellate courts to interfere with findings of primary fact, especially where they depend to a significant extent upon the judge’s assessment of witnesses he has seen and heard give evidence”. In so holding, the Court followed the guidance provided by the Supreme Court in Henderson v Foxworth Investments Limited [2014] UKSC 41, that “an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot be reasonably explained or justified”. 139

Damages and Future Loss Billett v Ministry of Defence[2014] EWHC 3060 (QB), [2014] All ER (D) 181 (Sep) In 2009, the claimant acting lance corporal in the Royal Logistics Corps, now aged 29, suffered a non-freezing cold injury (NFCI) to his feet when engaging in exercises in cold weather, which were part of a potential non-commissioned officer course. He passed the course and was subsequently promoted to lance corporal. As a result of his injury, the claimant was medically downgraded. Although he was later medically upgraded, he left the army in October 2011, not having mentioned an injury to his hands, and entered new employment as a HGV driver. The defendant Ministry of Defence admitted liability to pay 75% of the damages. The present proceedings concerned the assessment of damages.  The issues for determination were:

(i)

whether the claimant had sustained any injury to his hands;

(ii)

whether the claimant had left the army because of his injury or for other

reasons;

(iii) the amount of general damages for pain, suffering and loss of amenity,

and other items of past loss, including additional heating costs, painkillers

and warm clothing; and

(iv) whether the claimant had a ‘disability’ for the purposes of the Ogden

7 Tables A-B (the tables) such that his future loss of earning capacity

should be valued by reference to them, and the amount of other items of

future loss, including additional heating costs, medication, clothing, a foot

spa and replacement costs.

Disability Consideration was given to the definition of ‘disability’ in the Equality Act 2010.  The court ruled: (1) Although the claimant had remained in the army for two-and-ahalf years after sustaining his NFCI, he had not told anyone that his hands had been affected. In those circumstances, it could not be found that the NFCI sustained in February 2009 had extended to the claimant’s hands. He had not mentioned any problem with his hands at the time of the injury or for years afterwards (see [8], [9] of the judgment).  (2) It could not be found that, but for the injury, the claimant would have stayed in the army beyond October 2011. The real reason for his departure had been his family commitments and plans for civilian life. He would have left the army even if he had 140

not suffered his NFCI. There was no reason to suppose that his promotion prospects had diminished. Accordingly, those parts of the claim which depended on proof that the injury had caused him to leave the army failed (see [17] of the judgment).  (3) The figure for general damages was £12,500. A lump sum of £425 would be awarded for additional heating costs incurred by having the heating on for longer periods or at higher temperatures than would otherwise be the case. The total sum of £370.40 would be allowed for painkillers, and a total cost of £554 for warm clothing was reasonable and would be allowed. The other claims for past loss of failed because the claimant had given up his career for reasons other than the injury and on the findings of fact (see [24]-[30] of the judgment).  (4) The claimant had a physical impairment resulting from his NFCI which had lasted and was expected to last for over a year. He satisfied the Act’s definition that the impact of the disability substantially limited the person’s ability to carry out normal day-to-day activities. The claimant’s condition affected either the kind or amount of paid work he could do. Having found that the instant was not a lump sum case and the claimant was disabled, the tables method would be used because there was evidence to support it. The multiplier/multiplicand method would be used, but the multiplier would be substantially reduced for contingencies other than mortality to reflect the minor nature of the disability. Further, there was reason to assume that the claimant would retire before he was entitled to his pension and no reason to think that he would continue to work after that time. On the findings of fact, there was very little risk that the sum of £99,062.04 would under-compensate the claimant. A round sum for additional heating costs would be repeated in a lifetime future award of £4,482. Claims of £2,509.92 for medication, £7,470 for clothing, and £167 for a spa and replacement costs would be allowed. Other items of future loss failed on the findings of fact (see [58], [59], [61][66], [68]-[72] of the judgment). The judgment sum would be £127,956.45 (see [74] of the judgment).

141

Section 11 November 2014

Clinical Negligence Laughton v Shalaby [2014] EWCA Civ 1450, [2014] All ER (D) 119 (Nov)12/11/2014 The defendant orthopaedic surgeon performed a hip replacement operation on the claimant. The defendant used the antero-lateral approach of hip replacement, which required the surgeon to detach the muscle from the bone so that the artificial hip joint could be inserted and, once insertion had taken place, it was necessary to reattach the muscle to the bone. Following the operation, the claimant continued to have a painful loss of mobility. During further surgery by another surgeon, F, it was discovered that the muscle was not attached to the bone. The claimant brought a claim against the defendant, alleging that he had negligently failed to reattach the muscle properly or at all as he should have done. Claimant Expert The claimant’s expert, P, took the view that F’s observations were conclusive evidence that the defendant had either failed to reattach the muscle at all or had failed to reattach it properly. Defendant Expert The defendant’s expert, C, took the view that tearing away of the muscle (avulsion) was a recognised, although rare, occurrence after the antero-lateral method of hip replacement and that that was not the result of any negligence on the part of the defendant. The judge, in dismissing the claim, held that the claimant had not shown, on the balance of probabilities, that the defendant had been negligent. The judge preferred the evidence of C to that of P and found that the defendant had reattached the muscle in accordance with his normal practice at the end of the operation. The claimant appealed. She submitted, first, that the risk of natural avulsion of the muscle was so rare as to be statistically insignificant and the only realistic, and much more likely, alternative had to have

142

been that the defendant had either not reattached it to the bone or had failed to do so properly. Secondly, the claimant relied on a number of extraneous factors, including evidence of lack of probity, stress and incompetence in other cases.â&#x20AC;¨ The appeal would be dismissed.â&#x20AC;¨ (1) Once the claimant had accepted, as she had had to, that the judge had been entitled to prefer the expert evidence of C to that of P, the only true point left in the appeal had been whether the rarity of the phenomenon of avulsion had been such that, on the balance of probability, the defendant had negligently failed to reattach the muscle or had not reattached it sufficiently firmly. The claimant was unable to show that (see [29], [32], [33] of the judgment).â&#x20AC;¨ (2) General evidence of lack of probity, stress and incompetence in other areas of practice, such as wrist surgery or record-keeping, could not make up the deficiency (see [30], [32], [33] of the judgment).

Limitation Platt v BRB (Residuary) Ltd [2014] EWCA Civ 1401, [2014] All ER (D) 07 (Nov) From 1953 to 1988, the claimant had worked for the defendant, save for a two year break. In 1982, the claimant began complaining to his general practitioner about his hearing. Between then and 2011, he consulted various doctors about ear problems on 12 separate occasions. In particular, in 1997, he complained to his GP about tinnitus and hearing loss in his right ear, and was referred to a specialist ear, nose and throat (ENT) registrar. He was asked by that doctor whether he had worked in a noisy environment, to which he replied that he had. However, the claimant did not ask him on that occasion whether his problems were noise induced and the doctor did not volunteer that information. It was not until 2011 that he was told expressly that part of his hearing loss was noise induced. In October 2011, the claimant issued proceedings against the defendant for damage to his hearing. Knowledge The judge held that the claimant did not have actual knowledge that there was a real possibility that his hearing loss was noise induced until he read a newspaper article in 2010, less than three years before he issued proceedings. 143

Further, he concluded that the claimant was not affected by constructive knowledge and that, in all the circumstances of the case, it was not reasonable to have expected the claimant specifically to ask his ENT doctor about the cause of his tinnitus and deafness in 1997. The defendant appealed. The issue before the court was whether the claimant had been affected, in or around 1997, by constructive knowledge of the fact that his tinnitus and hearing loss were attributable in part to acts or omissions which had been alleged to amount to the defendant’s negligence. The court considered ss 11(3) and 14(3) of the Limitation Act 1980.   The appeal would be allowed. Applying the appropriate test in S. 14(3) of the Act, it had been reasonable to expect the claimant to ask the ENT doctor what had caused his hearing loss in all the circumstances of the case. It was not disputed that, had he done so, he would have been likely to have been informed that his tinnitus and hearing had been noise related. Neither the fact that the claimant had been retired for nine years, nor that he had had multiple ear and hearing problems over the previous years, had suggested that the circumstances had made it unreasonable to expect him to be curious about the cause of those unpleasant conditions. It had been a natural and appropriate question to ask. The purpose of s 14(3) of the Act was not to protect those who had not acted reasonably in their own interests to obtain and act upon expert advice. That was made clear from the proviso (see [29], [31], [34], [35] of the judgment).

RTA Liability Afouzar v First Centrewest Buses Ltd [2014] EWHC 3426 (QB), [2014] All ER (D) 309 (Oct) The claimant had been running across the road when he was hit by one of the defendant’s double decker buses. He had jogged across a slip road onto a pedestrian island and was then running across the next road when he was hit. At the time of the impact, the red man had been displayed at the crossing and the traffic lights had shown amber. The claimant suffered significant injuries and commenced proceedings seeking damages for personal injury. The agreed and joint expert evidence was that the claimant and driver would have had a view of one another shortly after the claimant had stepped onto the first crossing. The claimant had not looked or else his view had been obscured by the hood that he had worn pulled over his head. At the time of the impact, the claimant, who had crossed the road at an angle, had been between the limits of the crossing and the beginning of the yellow box junction. 144

The bus had been travelling at about 26mph and at 33m from the normal stop line when the light had changed to amber. There had been a gradual acceleration to 28mph and then gradual braking back to 26mph at the moment of impact. The driver had not applied firm or emergency braking. Had the claimant waited on the pedestrian island until the green man signal had illuminated, the collision would have been avoided. Similarly, had he looked towards the approaching bus and/or had his vision not been obscured by the hood, then he would have seen the bus and the collision would have been avoided. The driver could have braked in response to the amber traffic light and stopped before reaching the normal stop line. That would have required firm, but not harsh, braking. Had the driver obeyed the traffic signal and stopped at the first stop line, the collision would have been avoided. Had he stopped prior to reaching the advanced stop line, the collision would have been avoided. The judge also had the benefit of CCTV footage. It was ordered that liability be tried in advance of causation and quantum. The claimant accepted that he was contributory negligent but contended that the driver had been primarily negligent.â&#x20AC;¨ The claim would be dismissed.â&#x20AC;¨The claimant had been solely responsible for the accident. On the agreed expert evidence, the judge found that the driver had seen the amber light and had made the positive decision to proceed rather than stop for it. It had not been negligent of the driver not to have stopped for the amber light. As the claimant had jogged onto the pedestrian island, there had been nothing to have alerted the driver to the risk that he would run into the road against the pedestrian signal. However, the driver should have been aware of the claimant from the point that it had become apparent that he was not stopping at the kerb. At that point, on the basis of the expert evidence, he could not have stopped safely. On a balance of probabilities, the collision would not have been avoided. It was speculative to say how the claimant would have reacted. It had not been negligent for the driver not to have braked at a rate which might have been in excess of the busâ&#x20AC;&#x2122;s capability anyway and which would have given rise to a real risk of serious injury to passengers. Nor had it been negligent for him not to have seen the claimant, but even if he had done so at the point at which he could reasonably have anticipated a risk, it would have already been too late for the collision to have been avoided at all or for the collision to have been avoided without serious risk to others. The claimant had not seen the bus but he should have. Either he had not looked or he had turned his head and looked into the side his hood. He had been negligent in crossing the road when the pedestrian signals had been against him. He had failed to take care for his own safety.

145

He had crossed the road at an angle which had taken him outside the parameters of the crossing and had paid no heed to the dangers of the junction (see [74], [78], [80]-[82], [89], [90], [98] of the judgment).

Quantum Ali (a Protected Party suing by Jabid Ali his father and Litigation Friend) v Caton [2014] EWCA Civ 1313, [2014] All ER (D) 174 (Oct) The judge made orders for payment of damages to the claimant for personal injuries arising out of a road traffic accident in which he was seriously injured (see [2013] All ER (D) 94 (Jul)). The issue of liability was agreed between the parties and was approved by the judge as being 80% to 20% in the claimant’s favour, allowing for contributory negligence. In determining the award of damages, the judge considered evidence that the claimant had taken the United Kingdom citizenship test (the UKCT) and had passed it without outside assistance. It was common ground between the experts that for the claimant to have passed the test, whether fairly or by cheating, was surprising and appeared to be inconsistent with the level of cognitive disability which he had displayed to them in various examinations over the years since the accident. The judge awarded the claimant a net sum. He subsequently awarded the claimant a further sum in respect of past care and case management, and periodical payments for 20 years, rising thereafter for the rest of the claimant’s life. The second defendant Motor Insurers’ Bureau (the MIB) appealed and the claimant cross-appealed.  The claimant contended that the judge’s finding that he had sat and passed the UKCT unaided had been against the weight of the evidence. The MIB contended that, having found that the claimant had passed the UKCT without outside assistance, the judge had failed properly to consider the consequences of the finding and had placed weight on evidence no longer reliable so as to conclude that the claimant had continued to suffer from significant cognitive deficits, needing care and case management, and finding lack of mental capacity and no residual earning capacity. Both parties challenged the award of damages for pain, suffering and loss of amenity.  The appeal would be dismissed. The judge had been entitled to make the finding that he had on the evidence before him as to the claimant having passed the UKCT unaided. While the experts had all expressed surprise at the result he had achieved in the light of their own experience, none had said that the result had been an impossibility. The judge had been bound to take into account all the features of the evidence in the context of his finding that the claimant had somehow passed the UKCT. It was not the correct approach to focus upon the UKCT almost to the 146

exclusion of anything else. There could be no doubt that the claimant had suffered a very severe brain injury. Once the factor of the UKCT pass was put into context with all the other evidence and in its proper place, then the principal submission on the MIB’s appeal fell away. The MIB’s argument over-emphasised the impact of the factor of the UKCT success in the context of the evidence as a whole. With respect to mental capacity, the judge had been entitled to conclude that the claimant had lacked capacity, notwithstanding the statutory presumption, having regard to the total sum of the evidence and his finding should not be disturbed. With respect to care and case management, the judge had achieved a sensible balance of all the evidence as part of the significant, but far from excessive, award that he had made overall. With respect to the claimant’s residual earning capacity, faced with the varying features of the evidence, the judge’s assessment of the true likelihood of gainful employment could not be second guessed. The judge’s assessment of damages for pain, suffering and loss of amenity could not be faulted and would not, on the review of his findings on appeal, be disturbed (see [24], [25], [41], [47], [69], [75], [86], [91] of the judgment). The appeal and the cross-appeal would be dismissed (see [92]-[94] of the judgment). PD 21 Changes October 2014 From 1 October 2014 there will be two important changes to the Practice Direction to Part 21 of the CPR which will affect the preparation and conduct of settlement approval hearings. In cases where the approval is sought of a settlement or compromise by or on behalf of a child or protected party before proceedings have been issued, a claimant child or protected party in a personal injury case arising from an accident is now obliged to file with the claim for the approval of a settlement, “medical and quantum reports and joint statements material to the opinion [of counsel or a solicitor as to quantum, except in very clear cases] required by paragraph 5.2”. This change ensures that the medical evidence filed is that which is pertinent to the Opinion on quantum. In cases where the approval is sought of a settlement or compromise by or on behalf of a child or protected party after proceedings have been issued, the prescribed opinion as to quantum of counsel or a solicitor must now crucially also include “documentary evidence material to the [said] opinion” (per new Para 6.4(3)). This change has the potential to affect the Court’s ability to approve the settlement or compromise of a claim reached unexpectedly at trial for example – i.e. in circumstances where the same was not anticipated. Should therefore such

147

agreement be reached, it may be that it is unlikely a court would approve the same unless all medical reports, schedules of loss, and potentially lay evidence as to the child’s or protected party’s medical condition was available to be placed before the court.

PRACTICE DIRECTION 21 – CHILDREN AND PROTECTED PARTIES

1. 1) For paragraph 5.1(6)(b) substitute—

(b) “medical and quantum reports and joint statements material to the

opinion required by paragraph 5.2,”.

2. 2) In paragraph 6.4—

(a) in subparagraph (2), at the end, for “.” substitute “; and”;

(b) after paragraph 6.4(2) insert— “(3) documentary evidence material to

the opinion referred to at paragraph 6.4(1).”.

Notice of Funding and Relief from Sanctions Caliendo and another v Mishcon De Reya (A Firm) and another [2014] EWHC 3414 (Ch) Chancery Division The main proceedings concerned the sale and disposal of the interests of the claimants and others in shares in one or more corporate entities, which owned a football club, to purchasers connected with a well-known businessman, B, and another individual, F. The defendants had been retained and instructed by the claimants and others in relation to the transaction. The claimants sought relief in respect of their acknowledged failure to serve notice on the defendants of the existence of:

(i)

a conditional fee agreement; and

(ii)

an after the event insurance policy within the period specified by CPR

44.15(1) and para 9.3 of the Practice Direction on Pre-Action Conduct.

They contended that that failure had been an oversight, which had only

come to light when the proceedings were being finalised ready for

issue and the notice of funding form was being completed. The claimants

contended that they had always intended to notify the defendants of the

funding arrangement at the time of issue. They applied, pursuant to CPR

3.9, for relief from sanctions for the late notice of funding arrangements, as

imposed under CPR 44.3B.

148

The claimants submitted that relief from sanctions should be granted because:

(i)

the breach had occurred pre-action and the application for relief had been issued on the first possible date, being the date that the claim form had

been issued;

(ii)

the fact that the application for relief had taken up (considerable) court time should not be a relevant consideration; and

(iii) there was no evidence that the delay in notifying the defendants of the

funding arrangements had caused the defendants any prejudice.

The application would be allowed. Applying settled law to the facts, whilst the default in the present case had been serious, in the sense that it had occurred in respect of a rule for which an automatic sanction was imposed in the event of its breach, in the round, it had not occasioned serious and/or significant adverse effect on the efficient conduct and progress of the litigation nor of the conduct and progress of other litigation in the courts. Despite the need to encourage compliance, it would not be just to withhold relief from sanction. Accordingly, the application would be allowed and the relief sought would be granted (see [59], [60] of the judgment)..

149

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I have been in practice for forty two years and have special interests in the injuries arising from Motor car accidents, occupationally related accidents and sports accidents.

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