piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Spring is in the air

Be warned. Now that spring is here the flower police are out in force. Police were called out on Sunday to Whitecliffe Park in Poole when two children were spotted by an eagle eyed local resident picking daffodils and daisies. The childrens parents were warned by police that they were committing criminal damage by picking flowers. The parents who were at all times with the children claimed that they had only been attempting to make daisy chains.    Councillor Peter Adams, whose home overlooks the park, said a "proper response" had been taken. Im sure we can all learn a valuable lesson from this story.    

Safety on the slopes

I have recently returned from a long weekend in the Three Valleys, thankfully with all limbs and joints operating as they ought to.  My first skiing experience was in 2006 and this year has definitely presented the most challenging conditions I have encountered.  Little snowfall (or "Few Snow" as the signs charmingly declare at the top of some runs), warm conditions and use of articificial snow to boost what nature has provided has led to thin cover, ice at higher levels and bumps and slush lower down.  That said, hats off to those runing the resorts because many runs remain in remarkable condition considering. Inevitably there are those unluckier than me, who are returning home with the assistance of crutches and plaster casts.  Much of the time accidents occur because of "operator error" or sheer bad luck.  Collisions do occur however and claims can arise out of them.  Without even getting started on the helmet debate, an issue for another time, it is worth noting that rules for the slopes do exist and they can be of assistance when considering a claim arising out of a ski accident.  These are put in place by the FIS (International Ski Federation) and can be found online at: http://www.fis-ski.com/uk/insidefis/fisgeneralrules/10fisrules.html And for your perusal, here they are: 1.     Respect for others A skier or snowboarder must behave in such a way that he does not endanger or prejudice others. 2.     Control of speed and skiing or snowboarding A skier or snowboarder must move in control. He must adapt his speed and manner of skiing or snowboarding to his personal ability and to the prevailing conditions of terrain, snow and weather as well as to the density of traffic. 3.     Choice of route A skier or snowboarder coming from behind must choose his route in such a way that he does not endanger skiers or snowboarders ahead. 4.     Overtaking A skier or snowboarder may overtake another skier or snowboarder above or below and to the right or to the left provided that he leaves enough space for the overtaken skier or snowboarder to make any voluntary or involuntary movement. 5.     Entering, starting and moving upwards A skier or snowboarder entering a marked run, starting again after stopping or moving upwards on the slopes must look up and down the slopes that he can do so without endangering himself or others. 6.     Stopping on the piste Unless absolutely necessary, a skier or snowboarder must avoid stopping on the piste in narrow places or where visibility is restricted. After a fall in such a place, a skier or snowboarder must move clear of the piste as soon as possible. 7.     Climbing and descending on foot A skier or snowboarder either climbing or descending on foot must keep to the side of the piste. 8.     Respect for signs and markings A skier or snowboarder must respect all signs and markings. 9.     Assistance At accidents, every skier or snowboarder is duty bound to assist. 10.   Identification Every skier or snowboarder and witness, whether a responsible party or not, must exchange names and addresses following an accident.

A Victory for Common Sense?

Tomasz Krysztof Kmiecic, was a carpenter. In June 2006 he tried to fix a leaky garage roof at a Mrs Isaacs’ substantial and valuable home when he fell from a ladder. He shattered his right elbow and injured his hip and thigh. He is now permanently disabled and can never work again as a carpenter and general builder.   The firm that contracted Mr Kmiecic (on £60 to £80) a day did not have insurance. So Mr Kmiecic, turned to Mrs Isaacs for compensation.   Mrs Isaacs was a very house-proud person. Her house had pristine white carpets. Rather than allow Mr Kmeicic to access the part of the roof he was working on and thus have to risk footprints on the carpet, Mrs Issacs gave Mr Kmeicic a ladder to use.   It was Mr Kmiecic’s case that Mrs Isaacs should be construed as his employer. It was argued that by giving a workman instructions to undertake work, a homeowner met the ‘control test’ under as prescribed under the relevant workplace safety regulations. Thus, it was argued, Mrs Isaacs by giving Mr Kmiecic a ladder to use rather than allowing him to walk through her house, breached a duty of care owed to Mr Kmeicic and/or under the Construction (Health, Safety and Welfare) Regulations 1996 and Work at Height Regulations 2005.   Mr Kmiecic’s claim was dismissed by Swift J following a hearing on 11/11/09 and 22/1/10 ([2010] EWHC 381 (QB)). Mr Kmiecic appealed.   On 22/2/11 in an as yet unreported judgment, the Court of Appeal dismissed Mr Kmeicic’s appeal and held that "Mr Kmiecic did not come under Mrs Isaacs' control merely because she forbade him access to her garage roof through her son's bedroom. ... The safety of temporary construction sites is better ensured by focusing the responsibility on employers and others who are equipped to assess how that would be best achieved. ... common sense had prevailed”. A victory for common sense and the homeowner, but not so for unfortunate Mr Kmiecic. This is especially so, when it appears, (as Swift J pointedly noted), that the ‘real culprit’ in this matter was Mr Kmiecic’s uninsured "cowboy" employer.

Lord Woolf Warns of Human Rights Conflict

Whatever your views about the Human Rights Act 1998 ("HRA"), most lawyers would admit that it has led to many interesting developments in the law, although not as many as were feared as we approached the turn of the century and the Act coming into force.  The approach of the courts in this jurisdiction has, for the most part, been reasonably restrictive although it is clear that in the arena of public and administrative law in particular, the HRA has had a pivotal role in shaping the law. For many personal injury lawyers the HRA impacts little on day to day practice, save for ticking the box on various court documents to confirm that there is no human rights issue in a claim.  Equally, whether one acts primarily for claimants or defendants, the HRA has an influence that cannot be ignored.  For example, the case of R (on the application of Middleton) v HM Coroner for Western Somerset [2004] AC 182 has changed not only the conduct of inquests where Article 2 of the European Convention on Human Rights ("ECHR") is engaged.  As coroners have become more used to conducting wide ranging inquiries and giving narrative verdicts the scope of even traditional inquests has expanded.  Further, if one acts for or against public bodies, an almost inevitable occurrence at some time during the career of most personal injury lawyers, the scope of the duty of care and the obligations owed by agents of the state to individuals in certain areas have also been influenced by the courts' recognition of Convention rights.  It has been well publicised that the government is considering the future of the HRA both as a result of longstanding policy objectives and also following dissatisfaction in some quarters about the influence of the Convention on difficult issues such as prisoner voting rights and whether those on the sex offenders register should have a right to appeal to have their name removed after a certain period of time.  David Cameron has announced an intention to set up a Commission to consider whether a UK Bill of Rights should be introduced. On Monday Lord Woolf, Lord Chief Justice from 2002 to 2005, was interviewed on Radio 4's Today programme.  Although Lord Woolf made it clear that he did not take issue with the setting up of a Commission to consider the issue of human rights, he warned: "We have got a stark option: either we accept the European Convention, or we don't accept it and decide to leave the Council of Europe. It's very difficult to do what [Justice Secretary] Mr Clarke indicated he would like to do when he's chairman of the relevant body, because there are 47 signatories in Europe which are signatories to the European Convention as well as ourselves. To try and amend that is a virtually impossible task...  If you have a further convention - a British convention [the Bill of Rights] - there's going to be a complication in the position, because you're going to have two conventions to which the courts are going to have a regard." Whatever one might think about prisoner voting rights and the sex offenders register, it is easy to anticipate that emotive issues such as these will lead to strong and often polarised views.  Further, whether one is for or against the influence of the ECHR within the UK, one can see that difficult issues such as these do not make a good platform on which to base a discussion about the influence of the HRA on UK law over the last decade.  The incremental and often restrictive approach of the courts in allowing HRA arguments to expand the law much beyond our pre-existing common law receives little attention in the media.  In addition the cases where the HRA is relied on to expand the rights of "the good" rather than "the bad" also usually do not make good press.  An objective and carefully considered discussion about the influence of the HRA, good and bad, across all areas of law over the last decade should be welcomed by all.  Ten years is a reasonable period to enable proper reflection on quite what impact the HRA has had.  However, one cannot help but wonder whether politicians should be reminded not to base that discussion and consideration primarily on hard and topical issues such as prisoner voting rights and the sex offenders register.  After all, at law school most students are taught the old adage: hard cases make bad law.  It seems equally likely that over reliance on hard issues can give rise to bad politics too. 

A ski helmet? – Not on your nelly!

 The Mayor of London, Boris Johnson has recently expounded: “goggles, yet; a woolly hat, yet; but a helmet – not on your nelly”, in a recent article for the Telegraph. He was of course commenting on what he somewhat characteristically termed the “elf and safety madness that is sweeping our culture”, in relation to the growing trend for skiers to wear helmets. However he raises some interesting questions for the PI practitioner considering the extent of an injured party’s contributory negligence. Whilst motorcycle crash helmets are obligatory, cycle helmets, skiing helmets and indeed other forms or protective equipment are not.   Is it thus reasonable for courts to hold that an injured party negligently contributed to his or her injury by exercising a free choice not to wear a cycle/ski helmet, even if such apparel is ‘recommended’ or ‘best practice’? Should defendants in such cases simply have to take their victims as they find them?   The case of Smith v Finch [2009] EWCA 53 applied Lord Denning’s reasoning in Froom & Ors. v Butcher [1976] QB 286, the well known case dealing with contributory negligence and a failure to wear a seatbelt, which were not obligatory at the time, but were ‘recommended’. Griffith Williams J in Smith held a cyclist claimant who was run down by a motorcyclist was at fault for failing to wear a helmet. Cycling helmets may be one thing, but what about cycling gloves; squash goggles; motorcycle leathers; rugby scrummage caps; or car seats for short children over 12?   The questions courts and practitioners will routinely have to ask themselves include: ·         When does it become reasonable to expect a party to exercise a choice to wear purely optional safety equipment? ·         Where is the point where a free decision not to wear such equipment becomes capable as sounding in contributory negligence? ·         Is it, as Boris’ article suggests, when it is not a case of everyone else looking odd by wearing such equipment, but when it is you, for not wearing it?   Despite the judgment in Smith, these questions have yet to be fully answered.   Boris’ article is available at: www.telegraph.co.uk/comment/columnists/borisjohnson/7289457/Wear-ski-helmets-by-all-means-but-Im-sticking-to-a-woolly-hat.html

An anniversary observed in silence

The New York Times reported last week (12 February 2011) that today marks the five year anniversary since US Supreme Court Justice Clarence Thomas last spoke in court during oral argument.  Amusingly the reporter, Adam Liptak, speculated about how Justice Thomas would conduct himself today: "If he is true to form, Justice Thomas will spend the arguments as he always does: leaning back in his chair, staring at the ceiling, rubbing his eyes, whispering to Justice Stephen G Breyer, consulting papers and looking a little irritated and a little bored. He will ask no questions." Certainly that description of judicial demeanour will be familiar to most advocates and those who sit behind them.  Sadly, most judges follow up with an explosion of questions, rather than listening in silence to the advocate bashing on.  However, next time you are subjected to an assault of questions from the Bench, have some sympathy for your colleagues across the pond and bear this in mind.  It would seem that the other Supreme Court Justices more than make up for their silent colleague.  According to the article, in the 20 years preceding 2008, the justices asked on average 133 questions per hour of argument, an increase of 100 from 15 years before.  More than two questions a minute.  That would keep any advocate on their toes and off their stride... http://www.nytimes.com/2011/02/13/us/13thomas.html