piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

“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!  

“Safe sex” – Part 2

Regular readers will recall the story so far in relation to this unfortunate “on the job” injury which raises important questions about activities which can properly be said to arise out of or occur in the course of employment.    The appellant, a female public servant, sued the Australian federal government after being injured while having sex on a work trip in a motel bedroom. A glass light fitting came away from the wall above the bed as she was having sex striking her in the face and causing injuries to her nose, mouth and a tooth as well as “a consequent psychiatric injury” described as an adjustment disorder.   The appellant’s partner’s evidence was that they were “going hard” and that he did not know “if we bumped the light or it just fell off”.  He added, not unreasonably, that he was “not paying attention because we were rolling around”.   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 the 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.   However, on appeal to the Federal Court of Australia (FCA), the appellant’s counsel submitted that the accident was in truth “no different than slipping over in the shower”. In addition, “lawful sexual activity” should now be considered reasonable behaviour in a hotel room by an employee as “it's not the 1920s”.   Counsel for ComCare responded that people need to eat, sleep and attend to their personal hygiene but “you don't need to have sex”.   The judge, Nicholas J., allowed the appellant’s appeal - see PVYW v Comcare (No 2) [2012] FCA 395. The judge held that “While it is true that in determining whether an injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the applicant’s employment, there was nothing of that description in the present case which could justify a finding that the interval or interlude was interrupted by the applicant’s lawful sexual activity” – see [54] of the judgment.   Comcare appealed to the full court of the FCA which on 13 December 2012 dismissed its appeal – see Comcare v PVYW [2012] FCAFC 181.   In a carefully reasoned judgment the full court, presided over by Keane CJ., rejected Comcare’s essential submission that “an injured employee who claims to have been injured during an interval or interlude between periods of actual work must show both that the injury occurred at a place 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”.   The court held that 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. Further, the concept of, here, “a frolic of her own” was one which applies to wrongful acts. The court also made clear that “the views of the respondent’s employer about the respondent’s (lawful) activities were irrelevant, whether or not those views (if sought) may have reflected disapproval or indifference” – see [50] – [55] of the judgment.   This must be right. Why should being injured whilst having sex be any different to the claimant being injured whilst working out on one of the exercise bicycles or cross trainers in the motel’s gym provided that the injury occurred within an overall period or episode of work and negligence can be shown. Further, why should the employer approve when and how an employee has sex any more than where she chooses to have her breakfast?   Comcare is considering an appeal to the High Court, Australia's highest legal tribunal. In the meantime, common sense has prevailed, the judgment provides useful guidance on the scope of workplace injuries and I, for one, will in future double check the structural integrity of motel light fittings.  

Welly Wanging 2

Some of you may remember an earlier post of mine relating to a preliminary application in the case of Blair-Ford v CRS Adventures Ltd (http://www.piblawg.co.uk/post/2012/06/27/Warning-Low-Flying-Wellies-!.aspx) The claim was brought by Mr Blair-Ford after he suffered catastrophic injuries whilst welly wanging at a mini-Olympics event run by the Defendant company. Unfortunately for the Claimant Mr Justice Globe dismissed his claim. Of note in the judgment are the judge’s observations about the importance of risk assessments. No such assessment had been undertaken in relation to the welly wanging event, although a general assessment had been conducted of the mini-Olympics as a whole. Globe J noted the observations of Smith LJ in Uren v Corporate Leiasure (UK) Ltd [2011] EWCA Civ 66, summarising them in the following words: “Risk assessments are meant to be an exercise by which the employer examines and evaluates all the risks entailed in his operations and takes steps to remove or minimise those risks. Sometime, the failure to undertake a proper risk assessment can affect or even determine the outcome of a claim and judges must be alive to that and not sweep it aside. Risk assessments remain an important feature of the health and safety landscape and can provide an opportunity for intelligent and well-informed appraisal of risk and can form a blueprint for action leading to improved safety standards. That said, she [Smith LJ] has stressed that they are not a panacea and are probably more effective in relation to static conditions or activities which are often repeated in a fairly routine way. They may be a less effective tool where a lot of variables come into play.” With the above comments in mind, Globe J found that in the present case there were a “lot of variables” and as such the absence of a formal risk assessment could not be criticised. It was found that the carrying out of a “dynamic risk assessment” was acceptable, i.e. D’s instructors were trained to carry out on-site risk assessments as part of an on-going and “dynamic” process. Conditions frequently changed and the relevant instructors had to use their initiative to assess risk as and when matters arose. All sensible stuff it seems to me and Defendants will do well to remember that the lack of a written risk assessment need not be fatal to the defence of any claim. What is important is to be able to demonstrate that one is conscious of potential risk: that does not necessarily require the slavish completion of forms in all circumstances. In any event, Mr Blair-Ford’s injury was unforeseeable. The learned judge’s view was that in this case the risk that needed to be foreseen was the risk of serious injury and not just the risk of any injury. In the circumstances there was no foreseeable risk, the possibility of serious injury being at most “a mere possibility which would never influence the mind of a reasonable man”.

Bees, grouse, horses ... and a mad ox

Many of the posts on this blog are about cases at the cutting edge of jurisprudence. Quite rightly; it would be embarrassing to discover that a case you have relied on is no longer good law. Staying up-to-date is a necessary part of modern practice. A necessary evil, perhaps, when one considers the number and length of judgments that now spew forth from the courts.It may be of some comfort to the busy practitioner that every so often a case stands the test of time and can be cited long after the parties who gave rise to it have shuffled off their mortal coils. I always take pleasure in the citation of authorities which are as quaint as they are antiquated. It may well be a curious fetish, but one of my happiest moments in court was being able to cite (with justification!) Wiffin v Kincard (1807) 2 Bos & PNR 471 which held there was no assault when a constable used his stick to attract the attention of someone who had climbed the fence of a gentleman to get a better view of a mad ox.The other great attraction of old cases is that they tend to be a bit more colourful than modern ones. A Scottish lawyer of my acquaintance always delights in telling me that the law of contractual duress north of the border is founded on the case of Earl of Orkney v Vinfra (1606) Mor 16481. The facts are only too apparent from the report: “The Earl of Orkney summoned Vinfra into his presence, and with terrible countenance and words, and laying his hand upon his whinger [i.e. his dirk] he threatened with execrable oaths to relieve Vinfra of his life and stick him presently through the head with his whinger if he signed not”.Even highway law can turn up some gems. In a recent “tripper” case I had to consider what constituted lawful use of the highway. In the course of my research I discovered that it is not a lawful use of the highway to stride to and fro disturbing a neighbour’s grouse shooting (Harrison v Duke of Rutland [1883] 1 QB 142); to spy on the form of horses training for race (Hickman v Maisey [1900] QB 752); or to sit on a wall by the side of a highway talking about bees (Liddle v North Riding of Yorkshire CC [1932] 2 KB 101). It is lawful, however, “to take a rest by a milepost in the manner of Dick Whittington” (Hickman again).Does anyone else share my antiquarian affliction? Do you have a favourite old case; and what is the oldest case you have been able to cite? All contributions gratefully received!

Rylands v Fletcher up in smoke?

In the recent case of Stannard v Gore [2012] EWCA Civ 1248 (judgment 4.10.12) the Court of Appeal took on the herculean task of reviewing several hundred years of case law in order to answer the following: Will a landowner be liable for the damage caused by fire which (through no fault of his own) ‘escapes’ from his land? Judgment runs to 170 paragraphs in 62 pages, and concludes with a Gilbert & Sullivan-esque ‘no never…well, hardly ever’. Mr Stannard owned a tyre fitting business on an industrial estate in Hereford. He kept about 3,000 tyres on the premises. At around 1815 on 4 February 2008 a fire broke out due to a faulty wire, and spread to the tyres. Tyres (it seems) are difficult to ignite but once lit burn well and are very difficult to put out. This particular fire was so ferocious that it totally destroyed Mr Gore’s neighbouring property. Mr Gore argued that Mr Stannard was liable in negligence for allowing the fire to escape from his land. Alternately, he was strictly liable under the rule in Rylands v Fletcher LR 3 HL 330. The negligence claim failed at first instance but the Rylands v Fletcher claim succeeded. Mr Stannard appealed the second finding.  Ward LJ considered the proper approach in an ordinary Rylands v Fletcher case, having regard to Transco plc v Stockport Metropolitan Borough Council [2004] 2 AC 1:  (a)   The defendant must be the owner or occupier of the land. (b)   He must bring or keep or collect an exceptionally dangerous or mischievous thing on his land. (c)   He must have recognised or ought reasonably to have recognised, judged by the standards appropriate at the relevant place and time, that there is an exceptionally high risk of danger or mischief if that thing should escape, however unlikely an escape may have been thought to be. (d)   His use of his land must, having regard to all the circumstances of time and place, be extraordinary and unusual. (e)   The thing must escape from his property into or onto the property of another.   Reversing the decision at first instance, Ward LJ held the rule of strict liability does not apply unless the ‘thing’ which escapes is that which is collected on the land. Mr Stannard kept tyres. The tyres did not escape; only the fire which grew from them. Tyres are not ‘exceptionally dangerous or mischievous’ things and the use of the land as a tyre fitting business was neither ‘extraordinary’ nor ‘unusual’. Ward LJ did not discount the possibility that Rylands v Fletcher could apply in a fire case, but that would be very rare. Insofar as the 'troubling' case of Musgrove v Pandelis [1919] 2 KB 43 diluted the test for applying the rule, it was confined to its facts. The other judges were less gracious: For a masterclass in judicial trashing, see Lewison LJ at paragraph 144. This case highlights how, and more importantly why, the rule in Rylands v Fletcher has been continually eroded by the developing tort of negligence. As Lord Hoffman put it in Transco at [39]: ‘It is hard to escape the conclusion that the intellectual effort devoted to the rule by judges and writers over many years has brought forth a mouse.

Holidays (and hotels) from Hell - The duty to warn

"To many people holidays are not voyages of discovery, but a ritual of reassurance" (Phillip andrew)   So it was with the Russell family, who took their 4 year old daughter  - the Claimant -  on her (and the family's) first ever holiday together to a Hotel in Spain. At the time that the Holiday was booked the Claimant's parents made it clear that they were not seasoned travellers and specifically requested accommodation whcih was suitable for young children. They were duly reassured and, with their minds at ease, off they went. The family were allocated to a room with a glass balcony door. Shortly after arrival, as her parents were unpacking, the claimant ran towards the door. She failed to realise that it was still shut and collided with it. The glass was only 5mm thin and was not reinforced with any kind of safety film or wiring. It shattered into large jagged pieces and caused serious injury. The Claimant pursued a claim against her tour operator pursuant to the Package (Travel etc) Regulations 1992. There were two primary arguments. The first was that the thickness and nature of the glass did not comply withi applicable local safety regulations or standards in Spain. The second was that, irrespective of local safety standards, there had been a breach of what is commonly known as "the Second Limb of Wilson v Best Travel". The claim came before the Birmingham County Court in Russell v Thomas Cook Tour Operations (2012). The claimant was successful in establishing liability under both heads of her argumenrt. The first issue involved the resolution of competing expert architectural/engineering evidence and is of limited application beyond the specific facts of the case. The second issue is worthy of further consideration, however. The second limb of Wilson v Best Travel (1993) 1 ALL ER 353 is encapsulated in the following passage from Phillip J's (as he then was) judgment: "The duty of care of a tour operator is likely to extend to checking that local safety regulations are complied with. Provided that they are, I do not consider that the tour operator owes a duty to boycott a hotel because of the absence of some safety feature which would be found in an English hotel unless the absence of such a feature might lead a reasonable holidaymaker to decline to take a holiday at the hotel in question" There have been very few, if any, reported cases in which the Courts have applied this part of the judgment in Wilson, perhaps because it is not easy to envisage a situation where the relevant feature of the foreign hotel is so dangerous or worrisome that a holidaymaker would choose not to go there at all. In Wilson itself, the adult claimant also collided with a glass door which did not have any safety features, but the judge was not persuaded that this would have dissuaded him from travelling to Greece. In Russell the key difference was the claimant's very young age and the particular circumstances of the family.  The Court found that a reasonable holidaymaker in their position, having been specifically reassured that the room was suitable for a young family, should have been told that the glass was not safety glass and was very thin. It was foreseeable that young children would run around and bump into objects and it was not surprising that the family had sought reassurance in what was there first trip abroad. The judge accepted that had they been given an appropriate warning, they would not have chosen to stay in this particular hotel at all. The decision is a salutary one for both Claimants and Defendants. It serves as a reminder that, whilst compliance or non-compliance with local safety standards often provides the touchstone of liability, there remain a small number of cases which may nonetheless be decided by reference to broader considerations of universal or irreducible safety standards in the specific factual circumstances.                

Strict liability in workplace claims - the end of the line?

    The Government announced today that it will be introducing legislation before Parliament as early as next month amending the Health and Safety at Work Act to abolish strict liability for breaches of Health and Safety regulations. If the legislation is passed, employers will only be liable where fault is proved. By way of example, this would mean that in future there may be no strict liability for defective work equipment under Regulation 5 of the Provision and Use of Work Equipment Regulations 1998; or for exposure to dangerous substances under Regulation 7(1) of the Control of Substances Hazardous to Health Regulations 2002. This stems from recommendations to abolish strict liability in last year’s Löfstedt review of Health and Safety legislation. This specifically criticised the result in Stark v Post Office [2000] ICR 1013, as well as Allison v London Underground [2008] EWCA Civ 71 and Dugmore v Swansea NHS Trust [2002] EWCAA Civl 1689. Strict liability has been part of the employers’ liability landscape since the Factories Acts – see for example Galashiels Gas Co Ltd v Millar [1949] AC 275 HL (cited in Stark v Post Office). If passed, this will really be a sea-change in employer’s liability law, so keep watching this space for further updates…

Beware the NHS ‘killing season’

If you had the misfortune to be inside a hospital today, you may not have been imagining it if you thought the doctors are getting younger…   According to the Telegraph, around 7,000 graduate doctors today began practice in hospitals up and down the country.     Dr Anthea Martin, senior medical advisor at the Medical and Dental Defence Union of Scotland, says “many [junior doctors] are being thrown in at the deep end and the nature of medicine means that it is inevitable doctors have to learn on the job.”   The changeover has been labelled as 'black Wednesday' or the 'killing season' because of the rise in death rates. In 2009 a study by Imperial College London (involving 300,000 patients at 170 hospitals) found that patients admitted as an emergency on ‘black Wednesday’ are 6% more likely to die than on the previous Wednesday.   This raises questions over the standard of care expected of more junior doctors.   The general rule, as set out by the Court of Appeal in Jones v Manchester Corp [1952] 2 Q.B. 852, is that the patient is entitled to the same level of care and skill as would be expected of a fully qualified and well experienced doctor. “Errors due to inexperience or lack of supervision are no defence as against the injured person”.     What is often overlooked is that subsequently in Wilsher v Essex AHA [1987] Q.B. 730, a majority of judges accepted (albeit obiter) the standard of care owed by a doctor may depend on his subjective knowledge of the risks associated with the treatment. According to Sir Nicholas Browne-Wilkinson V.C “one of the chief hazards of inexperience is that one does not always know the risks which exist”. A doctor “should only be held liable for acts or omissions which a careful doctor with his qualifications and experience would not have done or omitted” Mustill L.J. was more blunt: “The structure of hospital medicine envisages that the lower ranks will be occupied by those of whom it would be wrong to expect too much”.   It remains to be seen whether, and if so how, these cases can be reconciled. ‘Black Wednesday’ may indirectly, provide the answer.

Liability of a Motor Insurer for Criminal Acts

CASE REPORT:-      AXN & Ors v (1) John Worboys (2) Inceptum Insurance Co Ltd (formerly HSBC Insurance (UK) LTD) [2012] EWHC 1730 (QB)   The preliminary issues concerned whether, and to what extent, the claimants had, in addition to their claims against Worboys, valid causes of action against the defendant insurer as the provider of the compulsory motor insurance required by the Road Traffic Act 1988. His insurance policy provided cover for "social, domestic and pleasure purposes and for use for public hire".   The Court was asked to determine whether: (i) the bodily injuries suffered by the claimants "arose out of the use of Worboys’ vehicle on a road or other public place" within the meaning of s145(3)(a) of the 1988 Act; (ii) liability in respect of Worboys’ acts of poisoning and sexual assault was required by s145(3)(a) to be covered by a policy of insurance, and was covered by the policy issued by his insurer; (iii) Worboy's use of the vehicle at the material times was a use insured by the policy; (iv) the insurer was liable pursuant to s151 to pay to the claimants any sum payable pursuant to a judgment obtained against Worboys. Mr Justice Silber determined this preliminary issue in favour of defendant insurer. The Court held: (1) the claimants’ injuries were caused by the criminal acts of Worboys in administering sedatives and then in attempting to or actually assaulting the claimants, and did not arise out of the use of the taxi on a road; (2) as the injuries sustained by the claimants did not arise out of Worboys' use of a vehicle on a road and so they were not required by s145(3)(a) to be covered by insurance;  (3) if the essential character of the journey consisted of use for a criminal purpose then the vehicle would not be covered by its insurance (Caple v Sewell [2011] EWCA Civ 1948). By the time that the claimants were sedated and assaulted, the essential character or purpose of the journey was criminal and the use was not covered by the insurance; and  (4) therefore having regard to the answers to the first three issues, the insurer was not liable, pursuant to s151, to pay to the claimants any sum payable pursuant to a judgment obtained against Worboys.

Crossing Centre White Lines & the Balance of Probability

CASE REPORT: -       Scott v Symons (2012) CA (Civ Div) 19/06/2012     At first instance, a motorcyclist was held responsible for a road traffic accident by riding his motorcycle onto the wrong side of the road. The motorcyclist himself had been injured by a car and gave the sole oral testimony at the trial. He contended he had been driving towards the middle of the road to give himself maximum visibility but conceded that his right hand might have crossed over the centre line. He always maintained however that he had remained on the correct side of the road and the collision must have been caused by the driver of the car wandering into his lane. There was a witness who did not attend trial. However his witness statement suggested the motorcyclist was on the wrong side of the road as he saw the collision in his rear view mirror.   The judge found that the motorcyclist was a frank, honest and credible witness, but that his evidence was a matter of reconstruction rather than recollection. It was held that the hearsay testimony of the witness that the other motorcar involved in the collision was on the correct side of the road very shortly prior to the accident was persuasive. He also took account of the motorcyclist's admission that his right hand had indeed strayed over the centre line. The judge concluded that, on the balance of probabilities, it was most likely that the collision had been caused by the motorbike crossing onto the wrong side of the road.   The motorcyclist appealed. The Court of Appeal (Lord Neuberger MR, Moses and Rimer LJJ) in an ex tempore judgment held that the trial judge had been entitled on the evidence to find upon the witness’s evidence that shortly before the accident the driver of the motorcar involved in the collision was on the correct side of the road and if he had then strayed across the centre line, it would have had to have happened quickly and without reason. The Court also held that the court below was entitled to give weight to the motorcyclist’s frank admission that he may have slightly strayed into the incoming lane. Both factors, it was held, were sufficient to make a finding on the balance of probabilities that the motorcyclist was to blame for the accident. The appeal was dismissed accordingly.