piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

A Good Winter for the Amateur Pothole Hunter?

The Sunday Times’ motoring supplement yesterday contained a cheery article entitled “Brace yourself for a winter of holey hell”. It was of course referring to what appear to be fast becoming a national obsession among many – potholes!   The article referred to the findings of an “army of amateur pothole hunters” recruited by the AA. (Perhaps this is seen as a less sedentary alternative to train/bus spotters?). Well, in what the Sunday Times has called "the most comprehensive audit yet of the state of the roads", some 1,100 people recorded some 24,000 defects bigger than 6” in diameter and 2” deep on Britain’s roads, in addition to defective manhole and utility covers.   The AA has helpfully suggested the findings of the survey suggest some form of infectious disease has infested the UK's tarmac. The President of the AA is quoted as saying “It shows that the UK has a pothole plague”. Mr King also proffered an equally helpful legal prediction by suggesting “compensation claims will soar when cold weather strikes and roads start breaking up again”.   Well, will they?        To add to the general doom and gloom, the paper references the Asphalt Industry Alliance as suggesting there is already a backlog of pothole work worth some £10.5 Billion!   So how will highways authorities cope with the unholy trinity of another harsh winter; depleted budgets; and road users increasingly informed and willing to bring claims against them when they damage their vehicles or themselves after hitting road defects?   One highways authority suspended regular inspections during the winter of 2009-10 so that they could focus on what I have described to many a district judge as “an unprecedented deluge of complaints”. My private personal view is that this is wholly reasonable in times of extremely poor weather and one which allows the highways authority to retain its special defence under section 58 of the Highways Act 1980. This seems to be the most reasonable, pragmatic and effective means of inspection, maintaining and repairing roads in such circumstances. The most significant defects on the busiest roads can be prioritised over undertaking annual or bi-annual inspections of lightly used local access roads. This seems to me to be the most practical way of minimising accidents, injuries and even loss of life in this situation.   However, the Court of Appeal almost a year ago in Wilkinson v City of York Council [2011] EWCA Civ 207, held that this approach was likely to land the highways authority as being unable to rely upon section 58. It was held that financial considerations are not a factor when looking at whether the authority had done what was "reasonably required". Under section 58 this required "an objective judgment based on risk." The section 58 defence was not designed for an authority which decided that it was preferable to allocate its resources in other directions because other needs were more pressing than doing what was reasonably required to make the roads safe.   So perhaps a highways authority will be better able to resist claims brought concerning accidents which occurred in periods of very poor weather by sticking to their regular inspection regimes rather than attempting to limit the damage? This may mean they face more claims brought against them, as the AA predicts, however they are more likely to have good section 58 defences to them.  

RSA Repair Costs - an end to the saga?

There has been a significant and until now unpublicised development in the long-running line of case concerning inflated repair costs claimed by RSA.   Well, as the judgment is on BAILII and publicised on the Judiciary Website, this is not quite an exclusive, but it is close!   Judgment was handed down in Kevin Fallows v Harkers Transport on Friday 2 September 2011. It came to my attention appearing at a trial the day before, when the district judge I was appearing before hinted very strongly that HHJ Platt in Fallows had come to a very firm decision in a case which should put this matter to bed. For what it is worth, the district judge in my case held that in his view these cases "were tantamount to fraud" and that counsel should go outside and "talk". The matter was settled by consent.   HHJ Platt, sitting at Romford County Court sought to clarify the situation as to various standard charges RSA was routinely claiming from defendant insurers, pursuant to an arrangement whereby their clients’ motor repairs were carried out by a subsidiary company. The judgment is somewhat scathing of this approach and suggests that simply this is a matter of the trite law of causation; reasonableness; mitigation and simply the obligation upon a claimant party to prove its loss.   The judge is also scathing as to the frequent refusal by RSA to disclose any proper invoices from repairing garages. The Judge held that by redusing to do so, the cases had little chance of settling without requiring a trial. At paragraph 60, the court held: “The court is left with the clear and unhappy impression that the provisions of CPR r 1.3 have simply passed by RSA and its solicitors unheeded both in this case as in others, and they remain in a mindset where the obligation to make proper disclosure is some kind of optional extra.”   Is this an end to the saga? HHJ Platt clearly intended his judgment to constitute some kind of final word. He held at the final paragraph that: “Although this is not a binding judgement in terms of the rules of precedent it carries a degree of authority which requires claimant's solicitors and advocates to carry out their professional duty to the court by bringing the judgement to the attention of any judge before whom they appear in any subsequent case in which these issues are litigated. Failure to do so may lead to costs orders under CPR 44.14.”   Read all about it at http://www.bailii.org/ew/cases/Misc/2011/16.html

Clinical Negligence Claims against the NHS Up 30%

The NHSLA published its annual report on 4 August 2011. Last year: (a)    it faced 8,655 clinical negligence claims, an increase from 6,652 the year before (up about 30.11%); (b)   of those,  5,398 cases were settled with only about 4% being resolved by litigation; and (c)    it paid out £729,100,000 pursuant to these, which was an increase from £651,000,000 the year before;   The report welcomes the introduction of the reforms recommended by the Jackson Review and laments the increased costs they have been facing claimed by claimant solicitors. It states: “We paid over £257m in total legal costs, of which almost £200m (76% of the total costs expenditure) was paid to claimant lawyers... we paid over £257m in total legal costs, of which almost £200m (76% of the total costs expenditure) was paid to claimant lawyers.”   The Report raises many issues. Two of note would be: (a)    Why has there been this recorded increase in claims? Are doctors becoming more negligent, or is our culture simply becoming increasingly litigious and the legal markets have facilitated this? Has the Recession contributed to this? (b)   Whilst they will undoubtedly assist in maintaining proportionality between damages and costs, how will the Jackson Reforms (particularly the irrecovarability of CFA uplifts from unsuccessful defendants), affect access to justice?   The Report is available at: http://www.nhsla.com/NR/rdonlyres/3F5DFA84-2463-468B-890C-42C0FC16D4D6/0/NHSLAAnnualReportandAccounts2011.pdf    

Ski, Riding and Now... Cycle Helmets

In my recurring theme as to contributory negligence and protective headwear (not to mention my citing of the most authoritative legal sources – this time “The Metro” 29 July 2011), there is a corpus of medical opinion which advises against making cycling helmets compulsory. This is on the grounds that such a law is likely to decrease cycling activity and that it is “inconclusive” whether helmets reduce injuries.   Certainly then, this is something that Clamant parties in cycling head injuries may wish to consider when faced with arguments as to contributory negligence.    

Simply a Fruitful Source of Gainful Employment?

  Some avid readers have read a recent article in the Solicitors Journal entitled “Judge condemns 'forum shopping' by claimant personal injury lawyers”. In this article a Romford-ian circuit judge is referenced as being “deeply troubled” as to what he appeared to perceive to be PI lawyers attempting to “boost costs” in a recent case before him. The judge made explicit reference to counsel’s fees for attending infant settlement hearings. The article quotes him by suggesting: “there is simply no basis for allowing counsel’s fees for attending the settlement hearing in a straightforward case”. Not stopping there, the judge continued to refer to another mainstay of much of the junior Civil Bar – credit hire. The Solicitors Journal quotes him as suggesting “the same attitude of mind is becoming equally prevalent in the field of credit hire where arguments are regularly being presented to district and circuit judges which have been clearly rejected by the Court of Appeal and the House of Lords”. The judge justified his eruption with reference to the “huge and increasing pressure” on judicial resources. Again the article records him as somewhat cynically expounding that “The civil procedure rules were not made in order to provide a fruitful source of gainful employment either to solicitors or to the junior Bar”.   Not surprisingly as a member of the said “Junior Bar”, I have to respectfully disagree with the learned judge.   Anybody who has attended a few approval hearings will be very aware of the importance of counsel attending, especially where some aspect of the child’s injury has been overlooked previously, or when there are outstanding issues as to costs. [Frances McClenaghan of 1 Chancery Lane recently penned an article on the subject - www.1chancerylane.com/documents/newsletters/New_Tenants_Briefing.pdf]. Likewise, surely without consistent testing in the lower courts, it is a certainty that the common law shall stagnate. This could well be seen as especially true of the law governing credit hire, the development of much of which has come by way of the appealed decisions of district and circuit judges.   It would be a matter of extreme professional impropriety (not to mention, potentially also of criminal liability) for any member of either branch of the legal profession to ever take a step in a case purely for personal gain. It is a fundamental right for anyone in the population to be free to litigate as they please. The legal professions exist to service the exercise of this right. In my opinion, legitimate concerns as to the pressures on judges and the court system should not be used to attack the litigators.

Warning - Potholes!

My morning commute was brightened up this morning by an article in the Metro, (the staple free newspaper for London commuters,) entitled “Motorists sign up to a pothole warning drive”. I think the last word of the title should have read “Sign”. The article focused on a triangular warning sign depicting a lopsided rear view of a car with one wheel down a pothole. It is suggested the Department of Transport is being lobbied by Confused.com to introduce the dedicated sign for use on potholed roads.   The first thing I (and I would assume, many of my fellow commuters) thought, was “Aha! What about section 58(2)(e) of the  Highways Act 1980?” Certainly I thought that the use of such a sign could potentially raise some issues as to a highway authority’s special statutory defence pursuant to section 58 to a claim brought against it pursuant to section 41 of the same Act.   Would such a permanent sign be a factor the court should take into account pursuant to section 58(2)(e) (which concerns warning notices) in relation to the court’s assessment of whether the highways authority had in place a “reasonable” system of highways inspection, maintenance and repair?   My inclination is that the answer to that question is “absolutely not”, given that it would then be possible for a highways authority to place ‘Pothole Warning Signs’ at 25 yard intervals along all their roads; sit back and spend their highways budget on something else; and pray in aid their sign’s presence as a section 58 defence in any ensuing court actions against them for non-repair. In any event, surely the presence of such a sign could be described as akin to an admission by the highways authority of a failure to repair and thus a breach of section 41 of the 1980 Act.   However in borderline section 58 defences, the presence of such a sign may provide a tipping point for the court. Likewise it may have a bearing on a finding of contributory negligence?      

A Riding Hat? Not on Our Nelly!

On 23 February of this year I wrote an article on the Piblawg regarding Mayor Boris Johnson’s distain for ski helmets and considered the implications for claimants not wearing safety equipment which is entirely optional and contributory negligence (see: A Ski Helmet? – Not on your Nelly).   Well, some similar controversy has been sparked from an unlikely source – the launch image for the Royal Windsor Horse Show. This shows a picture of our gracious monarch atop a black pony flanked by her youngest grandchildren, similarly mounted. Whilst the youngest Royals have the benefit of black velvet riding hats, the Queen (who let’s face it is internationally renowned for her headwear, both bejewelled and otherwise) has decided upon a rather fetching floral headscarf.   More...

Fraudulent personal injury claims and contempt of court

 Mrs Justice Cox has reminded us of the test and standard to be applied in applications for committal for contempt of court arising out of allegedly fraudulent personal injury claims.  In Montgomery v Brown [2011] EWHC 875 the Defendant made a range of allegations that C had lied about a substantial loss of earnings claim.  Mrs Justice Cox confirmed the test that a person is guilty of contempt of court if, in legal proceedings, he interferes or attempts to interfere with the administration of justice. Putting forward a dishonest claim, suppressing documents which should be disclosed and making false statements of truth were all examples of contempt. The court had to be satisfied, to the criminal standard, that the statements made by C were false, that he knew them to be false when he made them, that at the time they were made they would have, if persisted in, been likely to interfere with the course of justice in some material respect and that he knew that they would be likely to so interfere (Kabushiki Kaisha Sony Computer Entertainment Inc v Ball (Contempt of Court) (2004) EWHC 1984 (Ch) applied).   On the facts, contempt was not made out; however the case is a useful reminder of the test to be applied and the standard it must be proved to.    

Knit at your peril...

I’ve long believed that knitting is a rather odd pursuit. I learnt in childhood that the results rarely justify the hours of effort: misshapen Christmas presents and unwanted scarves still litter cupboards at home. However, I didn’t believe that knitting was actually dangerous. It seems that I was wrong. As a result of a recent Supreme Court decision we now know that knitting – at least on an industrial scale – can cause hearing loss. The Supreme Court appeal concerned the liability of employers in the knitting industry of Derbyshire and Nottingham for hearing loss that employees suffered during the years prior to 1 January 1990 (being the date when the Noise at Work Regulations 1989 came into force). The key issue for the Supreme Court Justices was whether liability could be established at common law and/or in breach of statutory duty pursuant to section 29(1) of the Factories Act 1961 in respect of an employee able to prove a noise-induced hearing loss as a result of exposure to noise levels between 85 and 90dB(A)lepd. The appeal is Baker v Quantum Clothing Group & Anor. [2011] UKSC 17 (judgment was delivered yesterday and a report is in today’s Times and on Lawtel).

When is an agreement not an agreement?

The Claimant suffered very significant injuries at 8 months old which have left her with life long cognitive and physical impairments. The Defendant admitted liability, including causation, at an early stage.  Proceedings have been issued and, thus far, there has been a great deal of co - operation between the parties. Indeed, this even extended to agreement in respect of (1) a substantial interim payment and (2) a costs order whereby the Defendant would pay the Claimant's costs to date in an agreed amount. Very recently the parties attended court for directions and for an order setting out the terms of the aforementioned interim payements.  The night before the hearing it was quite clear both from discussions between the fee earners and from the face of the documents that agreement had been reached as to the date on which the interim payments would be made. In fact the claimant's solicitors had compromised on the amount of the costs on the understanding that  the payment would be received before the end of their financial year. At court however, a different fee earner was in attendance from the Defendant's solicitors and wanted an extra week to make the payments on the basis that the Easter bankholidays would cause difficulties with raising a cheque by the originally agreed date. The extra week took the deadline outside the Claimant's solicitor's financial year. The District Judge gave the Defendant the additional week. Was this the right decision? For what its worth, I do not think so. It makes a bit of a mockery of the consensus that had been reached by the solicitors. Also (and this is not necessarily  a concern for the court), it does not bode well for future relations between the parties....