piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

A defendant's nightmare?

  A Defendant’s Nightmare?   Sarah Davison would normally get to her desk by 6 a.m., work for twelve hours and often head out thereafter to meet and entertain clients. Sleep felt like it was secondary to achievement. She worked in a macho environment and her boss was a man who, in the words of Andrews J, “does not suffer fools gladly, or indeed at all”. But Mrs Davison was well-paid: at the time she left on maternity leave to have her first child she was earning over £200,000 a year. When, after giving birth to that child, she suffered a career-ending injury as a result of clinical negligence, the resulting claim was always going to be of the size that makes defendants and their insurers wake up in a cold sweat in the middle of the night.   Andrews J’s judgment on damages (Sarah Davison v Craig Leitch [2013] EWHC 3092 (QB)) makes interesting reading. A court called upon to assess loss of earnings in such a situation is engaged in a difficult exercise, perhaps best characterised, to borrow one of my favourite judicial dicta of Lindsay J, as “a glance at a crystal ball of, so to speak, only a low wattage” (see Douglas v Hello! Ltd (No.5) [2003] EWHC 786 (Ch)). There are often a number of variables and changing any one of them can have a significant effect on the ultimate award.   One approach is to consider a number of possible scenarios, determine the probability of each of them occurring, and then multiply that figure by what would have been earned in each scenario; that can sometimes be the only way to do justice, particularly where a person had a chance of a “big break” which, had it occurred, would have lead to very significant rewards. The kick-boxing claimant in Langford v Hebran [2001] PIQR Q13 is a good example of this approach being applied; it works best where there are a limited number of clearly defined possible scenarios; where they are more numerous, or the lines between them more blurred, the calculation can become unwieldy.   The more traditional approach, and the one adopted by the court in Davison, is simply to make a best guess as to how the claimant’s career would have progressed absent the tort. This will inevitably involve scrutiny of the claimant’s pre-accident career and abilities. Andrews J was clearly impressed by the evidence on this point of Mrs Davison’s ex-boss, a man so busy he had to give evidence “via video link ... en route to catching a plane”. There may also be a need, particularly in a volatile or cyclical industry such as financial services, to assess what the future demand would have been for a person’s services.   Andrews J broadly accepted the Claimant’s evidence on these two points; where she differed was as to the likelihood of the Claimant continuing in her pre-accident role as an equities trader once her three children were born, holding “it highly unlikely that when Mrs Davison returned to work after her maternity leave ... she would have had the appetite to return to the stresses of the trading floor and face the prospect of never seeing her three small children during the week ... However much she would like to believe otherwise, in my judgment it is far more likely that she would have moved to a less stressful position within the bank, involving shorter working hours.”   The judgment is also interesting for its award of £6,500 for loss of congenial employment. Given the description of Mrs Davison’s working life at the start of this post, one may well question whether it can really be described as “congenial”. Andrews J justified the award on the basis that Mrs Davison’s “future is uncertain and any work she does undertake in future is likely to be fairly solitary and considerably well paid”. This is curious reasoning. The fact that the Claimant was likely to be paid less was, of course, compensated by an award for future loss of earnings. It might be said that her earnings are relevant to what was in effect an award for loss of status, but here again surely one has to look at all the circumstances of her pre-accident employment. Andrews J found as a fact that the most likely future for the Claimant would be running her own small business, possibly as an interior designer. Of course, that would lack the stimulus and status of a job in the City, but it would also lack its stresses and uncertainties. Can it really be said, taking everything into account, that the Claimant’s overall quality of life would undoubtedly be the poorer? Less well-paid, certainly; but less congenial? - it is perhaps to be doubted. There is a danger that awards under this head will become routine in all cases where a claimant is unable to pursue their chosen career. Perhaps the Law Commission’s suggestion that this should not be a separate head of damage at all, but rather should be considered as part of the award for PSLA, deserves reconsideration.        

“Safe sex” – Part 3

Sex activity is “in every sense a personal choice”.   Ordinarily this truism might not find its way into legal submissions and certainly not submissions by the Solicitor-General of the Commonwealth of Australia. However, ordinarily injuries at work do not arise from a “vigorous” sex session in a motel bedroom.   Regular readers will recall the story so far in relation to this unfortunate “on the job” injury which raises important questions for personal injury and employment lawyers in the UK about the types of activities which can properly be said to arise out of or in the course of employment.    The respondent, a female public servant sued the Australian federal government after being injured while having sex on a work trip in a motel bedroom. The respondent’s partner’s evidence was that they were “going hard” when a glass light fitting came away from the wall above the bed striking her in the face and causing both physical and psychological injuries.   The appellant claimed compensation because her injuries were caused “during the course of her employment” as she had been instructed to travel to and spend the night in a motel in a small town in New South Wales ahead of a departmental meeting early the next day.   The respondent, Comcare, the Australian government's workplace safety body, rejected the claim on the grounds that sexual activity “was not an ordinary incident of an overnight stay like showering, sleeping or eating”. That decision was upheld by the Administrative Appeals Tribunal.   Nicholas J. allowed the appellant’s appeal - see PVYW v Comcare (No 2) [2012] FCA 395. Comcare appealed to the full court of the Federal Court of Australia (FCA) which dismissed its appeal – see Comcare v PVYW [2012] FCAFC 181.   In particular, the FCA rejected Comcare’s submission that an injured employee must show both that the injury occurred at a place where he or she was induced or encouraged by the employer to be and that the activity from which the injury arose was induced or encouraged by the employer or was implicitly accepted. It held that the potential conditions for liability were not conjunctive in the sense that an activity test should be super-imposed on a place test. There was no combined or two-stage test. There was a single test which may be satisfied in either one of two ways.   Comcare appealed to the High Court of Australia which on 30 October 2013 by a majority of 4-2 allowed the appeal and rejected the respondent’s claim for compensation – see Comcare v PVYW [2013] HCA 41.   The judgment of the majority was given by Chief Justice French AC. The essential enquiry in each case was “how was the injury brought about?” Sometimes the injury will have occurred at and by reference to the place where the employee was. Usually, however, it will have occurred while the employee was engaged in an activity.   The majority held at [38] that “when an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity?  When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment”.    It follows that where an activity was engaged in at the time of the injury, the relevant question is not whether the employer induced or encouraged the employee to be at the place where the injury ocurred because such inducement or encouragement is not relevant to the circumstances of the injury.   Put another way, an employer is not liable for an injury which occurs when an employee undertakes a particular activity if the employer has not in any way encouraged the employee to undertake that activity but has merely required the employee to be present at the place where the activity is undertaken.   Two justices dissented. Bell J. held at [106] that “consideration of the connection between the circumstances of the injury and the employment relation would be to add complexity at the cost of certainty and consistency”. Gageler J. agreed holding at [159] that “The particular activity in which the respondent was engaged at the time she was injured does not enter into the analysis”.     The High Court’s decision means that in Australia an employer will not become, in reality, an insurer for an employee in respect of any activity carried out at a place which the employee has been induced or encouraged by the employer to be. It also provides useful guidance to UK lawyers who may be called upon to deal with unusual work place related injuries.   The decision also restores certainty and structure to the law of employers' liability in Australia – something which was sadly lacking in the motel light fitting in question!