the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

A Head for Heights

  “… I was out in the garden with my stepladder today. Not my real ladder. I don't get on with my real ladder …” I was reminded of this old one liner when reading the latest instalment of the government’s Red Tape Challenge This is the revised guidance issued by the Health and Safety Executive (HSE) on working at height. This is now much simpler and sets out in clear terms what the law requires and the nature of an individual's responsibilities. It should be part of every personal injury lawyer’s tool kit. The new guidance is available free online: http://www.hse.gov.uk/pubns/indg401.pdf More than 1 million British businesses and 10 million workers are estimated to carry out jobs involving some form of working at height every year. The Work at Height Regulations (WAHR) 2005 (SI 2005/735) set out the law as it applies in Great Britain. These regulations have not changed. However key changes to HSE guidance include: Simple advice about the dos and don'ts of working at height. The dispelling of some of the persistent myths about health and safety law (Example – “I am working at height if I’m walking up and down a staircase at work. No, you are not. Work at height does not include walking up and down a permanent staircase in a building”). Targeted advice to help businesses in different sectors manage serious risks sensibly and proportionately. Helping workers to be clearer about their own responsibilities for working safely. The new guidance was produced with the support of various bodies including the British Retail Consortium, and the trade unions. It is also timely. Falls remain one of the biggest causes of serious workplace injury with more than 40 people killed and 4,000 others suffering major injuries every year. For lawyers, the guidance sets out clearly and informatively what employers need to do to protect their employees when they are working at height whilst at the same time making clear what can reasonably expected of employees to take responsibilities for their own safely. The emphasis is less on formal qualifications and more on competence. This means having the necessary skills, knowledge and experience for the work being carried out. Hardly new advice but a valuable reminder nonetheless!  

After pasties and caravans … CFAs and DBAs?

Is it just me or should we all be concerned about the way in which the legislation to implement Lord Justice Jackson’s recommendations is being introduced?   Why have there been so few announcements about what are, after all, radical and far reaching public policy changes? If we as legal professionals are unsure about the proposed changes, how can we properly advise the public after 1 April 2013?   Will legal professionals soon be joining bakers and caravanning enthusiasts in pointing out to the government the potential far reaching consequences of over hasty legislation?   In the foreword to his final report on costs in civil litigation dated 21 December 2009 Lord Justice Jackson wrote:   “ … I therefore propose a coherent package of interlocking reforms, designed to control costs and promote access to justice ...”   He went on to make a total of 109 separate recommendations some but not all of which have found their way into proposed new legislation. In particular the Conditional Fee Agreements Order 2013 (the CFA Order) and the Damages-based Agreements Regulations 2013 (the DBA Regulations) have now been laid before Parliament and were subject to a Motion to Approve debate in the House of Lords on 26 February 2013.   Both have been described by the General Council for the Bar (GCB) as “not fit for purpose”. The GCB also suggested that the proposed order and regulations “will deny access to justice, burden the courts’ time with unnecessary satellite litigation and limit the commercial use of DBAs”.    There are certainly grounds for concern. As we all know, the success fee under a CFA entered into after 1 April 2013 for proceedings at first instance will be capped at 25%. Article 5(2) of the proposed CFA Order provides that this will be 25% of “(a) general damages for pain, suffering, and loss of amenity; and (b) damages for pecuniary loss, other than future pecuniary loss” (my emphasis). However, in a lecture given on 29 February 2012, Lord Justice Jackson amended his view in response to submissions from a number of parties and proposed that the cap should be 25% of all damages. There must be a risk that in larger and more complicated cases which are difficult to cost budget and involve significant initial disbursements, limiting the cap to 25% of past losses will not promote “access to justice” as Lord Justice Jackson hoped but may in fact prove to be a disincentive to  taking on such cases in the first place.   Then there is VAT. As drafted, the proposed CFA Order provides that the “damages” to which the 25% cap applies are “net of any sums recoverable by the Compensation Recovery Unit of the Department for Work and Pensions”. There is no exclusion for VAT. But if VAT is included in such damages there is not only scope for uncertainty (what happens, for example, if the VAT rate changes after the CFA has been entered into but before a bill of costs is rendered?) but in the larger and more complicated cases this may be a further reason why those contemplating taking on such cases may decline to do so on the grounds that the unpredictability of the risk will not be properly compensated by the level of the CFA.   The same objections apply to the proposed DBA Regulations. As presently drafted, the cap for DBAs is inclusive of VAT but exclusive of damages for future pecuniary loss. In addition, the DBA Regulations do not allow for “hybrid” agreements i.e. agreements under which some costs are recoverable if a “win” does not occur rather than no costs at all. This is again contrary to what Lord Justice Jackson recommended and may prove a disincentive to the use of DBAs particularly in commercial cases.   Access to justice may not be as newsworthy as Cornish pasties and static caravans but in resource-intensive cases, the government’s aim of protecting the damages recoverable by claimants may actually result in some claimants being unable to obtain legal representation and thus recovering no damages at all.       Image – cornishpasties.com

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.  

A Rare Bird: the Lesser-Spotted Section 5 of the Occupiers' Liability Act 1957

Personal injury lawyers know all about the 1957 Act (“OLA”). In fact, along with the Highways Act 1980, it is probably one of statutes we deal with most often outside of an employer’s liability context. It is a short Act, with just three substantive sections, and it’s been on the statute book for over half a century. So it’s odd, perhaps, that in that time only two cases have considered Section 5: Sole v WJ Jallt Ltd [1973] QB 574 and Maguire v Sefton MBC [2006] 1 WLR 2550 (CA).   Section 5 is entitled “Liability in contract”. It’s worth citing the substantive subsection in full: (1) Where persons enter or use, or bring or send goods to, any premises in exercise of a right conferred by contract with a person occupying or having control of the premises, the duty he owes them in respect of dangers due to the state of the premises or to things done or omitted to be done on them, in so far as the duty depends on a term to be implied in the contract by reason of its conferring that right, shall be the common duty of care. [Emphasis added]   The curiosity in the application of this section arises most noticeably in the context of claims by a tenant against a landlord. Imagine, for example, that a tenant slips and falls on a dangerous staircase in the common parts of a premises. The staircase is not part of the premises demised to the tenant, and so they cannot pursue a claim under the statutes which govern the upkeep of such premises by a landlord (e.g. the Defective Premises Act 1972). But the landlord will generally be the occupier of any common parts of the premises retained by him, so he will be an occupier for the purposes of the OLA.   So far so straightforward. It might be thought that this is an easy claim to make out on a “conventional” occupier’s liability basis. But would it be correct in this context to bring a claim under Section 2 of OLA on the basis that the tenant was the landlord’s visitor?   Possibly not. After all, the tenant is arguably not using the staircase as an invitee or licensee of the landlord in the common law sense but pursuant to a right (i.e. an express or implied easement of way provided for in the lease). If the tenant is there by right, then they are arguably not a “visitor” for the purposes of Section 2, for the same reasons that a user of public of private right of way is not a visitor of that way, i.e. precisely because they do so as of right and not as a permissive user.   If the tenant is not a visitor for the purposes of OLA then their most obvious remedy will be in contract, and hence one will look to Section 5. But Section 5 does not create a duty; it merely defines the content of the duty where that duty depends on an implied term.   The upshot of this is that where a duty falls to be implied that duty will be the common duty of care (i.e. reasonable care to ensure reasonable safety etc.). But there may be situations where there is no need to imply such a duty (in particular, where the lease makes clear provisions as to what the landlord and tenant are responsible for in terms of maintenance). Where there is no need to imply a duty then Section 5 will not come to the rescue of a tenant and there will, it is suggested, be no duty incumbent upon a landlord under OLA.   This seems to be a novel argument, so comments and observations will be greatly received. Should you come across this situation in practice, then you may wish to consider taking the point: it might ensure that Section 5 finally emerges from the shadows!