piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Foreign Law in the English Courts

A number of the English lawyers who conduct PI litigation in cross-border cases have warned that the full implications of the Rome II Regulation (864/2007) – and the impact that it has on the assessment of damages awarded to English Claimants by English Judges – have yet to be felt. By way of recap, Rome II provides (in Article 15(c)) that once the applicable law of the tort has been identified it will apply (among other things) to the existence, the nature and the assessment of the damages to which the Claimant is entitled. In other words, (and by contrast to the previous position under the Private International Law (Miscellaneous Provisions) Act 1995) Rome II extends the reach of the foreign applicable law beyond the identification of heads of recoverable loss and into the assessment of damages process itself. This means a much greater role for foreign legal experts in the English Courts and it also means that English Judges may find themselves confronting (on a regular basis, given the volume of EU RTA claims in the English jurisdiction) vexed foreign law issues which have not been clearly resolved in the foreign jurisdiction from which they derive. In this sense, an English Judge may be called to determine (if you like “to make”) German/French/Lithuanian (delete as appropriate) law. Soole J confronted a dilemma of just this kind in the very recent case of Syred v PZU SA [2015] EWHC 254 (QB) (12.2.16): a PI claim by an English Claimant against a Polish insurer Defendant in respect of an RTA in Poland (to which the English Court applied the law of Poland). One of the issues confronting the Court was the assessment of (what we would call) general damages for pain, suffering and loss of amenity. Polish law provided no fixed scales or guidelines for such damages, but there was evidence that Polish Judges tended to use the non-pecuniary elements of a table or tariff published in an Ordinance by the Polish Labour Ministry. So far, so good, but the additional expert evidence was that the Polish Supreme Court had criticised the use of the Ordinance in this way. Despite this, the Polish lower Courts had continued to use the Ordinance and the Supreme Court had failed to provide an alternative method of calculation of such damages. What was the English Judge to do? The use of the Ordinance was (per Polish Supreme Court) unlawful where it was the sole method of assessment of general damages, however, it was a continuing convention of the Polish Courts to have regard to the Ordinance (in the "overall" assessment process) and it was, therefore, permissible for the English Judge to have similar regard in assessing damages (see, Wall v Mutuelle de Poitiers Assurance [2014] 1 WLR 4263 (CA)). Soole J went ahead and assessed damages accordingly. This looks like a pragmatic solution: after all, the Judge has to find some means by which to make the appropriate award. However, it also looks like an English Judge has resolved an issue of Polish law that the Polish Courts have yet wholly to resolve for themselves. One wonders whether Soole J’s decision will have any precedent value in Poland?

T’is the season to be techie ….!

This is the time of year for families …. and for gadgets. Lots of them! In particular, smartphones. An average 65% of children in the UK aged between 8 and 11 now have their own smartphone.   This figure rises to 90.5% in Newcastle making it the smartphone capital of the UK for children. This compares with 55.2% in London and only 40% in Brighton and Hove.   All this and more is contained in a survey by Internet Matters (www.internetmatters.org) which also revealed that 72% of parents will have bought tech gifts for their children this year.   For those looking forward to getting back to drafting or responding to schedules of aids and equipment in the New Year the challenge is to wise up and become more e-savvy about equipment claims in 2016.   Also out before Christmas was the latest statistical bulletin from the Office of National Statistics (ONS) (www.ons.gov.uk) on families and households in the UK in 2015.   As a result, those grappling with accommodation claims in 2016 may need to reconsider some of the assumptions often made in schedules and counter schedules, for example, that a person will cohabit throughout his or her life and about the likely age at which a person is likely to leave home.   Although in 2015 in the UK there were 12.5 million people living in a married or civil partner couple family and a further 3.2 million living as a cohabiting couple family there were also 7.7 million people in the UK in 2015 living alone. The largest change – and, according to the ONS, one that is statistically significant - is in people aged between 45 and 64 where the number living alone has increased by 23% between 2005 and 2015.   In 2015 around 40% of young adults in the UK aged between 15 and 34 were still living with their parents. In 1996 around 5.8 million people aged between 15 and 34 in the UK lived with their parents. This figure increased to a peak of 6.7 million in 2014 and has remained at around 6.6 million in 2015.   Looking forward, Christmas wish lists are likely to continue to be dominated by tech gadgets and devices. However, in 2016, at least for parents, the focus may be less on paper chains and party games and more on parental controls and privacy settings.   A Happy New Year to all our readers!

Stroke Caused By Beauty Facial Case Settles

Claims against negligent beauticians and the like are not altogether uncommon. The injuries tend to be dermatological in nature consequent of some allergic reaction to an untested product. But who would have thought it possible, let alone likely, for someone to suffer a stroke as a result of a beauty facial treatment? Tragically that is what happened to Elizabeth Hughes after her visit to the spa at the Eastwell Manor Hotel. What should have been a weekend treat resulted in a serious stroke that left her disabled for life. Her claim, which otherwise would have been tried in the High Court this week, settled for an undisclosed amount. How did it happen? The medical experts on both sides were agreed that the stroke occurred as a result of a dissection to the carotid artery. The dissection was in all probability caused when beauty cream was massaged onto the sides of her neck by the beauty therapist. The issue was whether she was negligent or had applied an excessive degree of force. Unlike sports injury or deep tissue massages, where there are reported cases of stroke, this was a novel situation. This type of injury had not been encountered previously by beauty therapists. Mrs Hughes who was employed by the NHS as a nurse was left significantly disabled. Her disabilities prevented her from returning to employment in the nursing sector. The case has been watched closely by the beauty industry and the press. (http://www.mirror.co.uk/news/uk-news/nurse-disabled-stroke-after-allegedly-6798935) Elizabeth Hughes was represented by Edward Bishop QC and Kiril Waite at 1 Chancery Lane, instructed by Ciaran McCabe at Moore Blatch Legal Resolve.

Retiring gracefully ... and gradually?

Most personal injury lawyers think a lot about retirement. This can be their own, in my case usually when grappling with costs budgets, but is more likely to be that of the party whose claim they are advancing or opposing. The date of retirement is crucial to the value of a loss of earnings claim.   Most personal injury schedules claim full time working to age 68 or even 70. Most counter schedules contend for retirement at age 65.   However, new research shows the way people view retirement is changing. Nearly two-thirds of people aged over 50 no longer think that working full time and then stopping work altogether is the best way to retire and around half would still like to be in work aged between 65 and 70.   YouGov surveyed more than 2,000 retired and non-retired people aged over 50.   https://yougov.co.uk/news/2014/11/05/concept-gradual-retirement-attracts-non-retired-ad/   The survey showed:   39% of over 50s not currently retired said that working part time or flexible hours before stopping work altogether would be the best way to retire. 48% of those under 65 and not currently retired would still like to be in work between 65 and 70. 36% of retirees say their advice to others would be to “consider switching to flexible or part time work for a period first” before stopping work altogether. 33% of those over 70 and still working said they did so because they enjoyed it.   The survey also suggests that some non-retired people over 50 both in and out of work were ready to learn new skills. Nearly half (47%) said they were interested in attending training courses to learn new or to update existing skills.   There are lessons here for both schedulers and counter schedulers. An absolute retirement age of 65, 68 or even 70 may now be unrepresentative. Gradual retirement is increasingly the trend at least in England and Wales.   In “The Later Years of Thomas Hardy” (Macmillan, 1930), Florence Emily Hardy reports the author’s observation that:   “The value of old age depends upon the person who reaches it. To some men of early performance it is useless. To others, who are late to develop, it just enables them to finish the job”.   I cannot promise still to be working beyond age 70. If I am, I can promise it will not be on costs budgets!  

The ever-ageing 13-Year-Old Compensation Discount Rate

There has been a further delay to the much-anticipated and important decision on the discount rate to be applied to compensation. And this comes almost two years after conclusion of the consultation on the question of whether the current rate of 2.5% should be modified.   This issue is of course of extreme importance to anyone involved in injury litigation. The legal professions are somewhat divided as to whether the rate should be increased or decreased, along (usually) respectively defendant and claimant lines.     Chris Grayling, the Justice Secretary (as he is more commonly known rather than Lord Chancellor) has now announced that he wishes to appoint  panel of three financial investment experts to analyse all the responses to a consultation on the discount rate that closed as long ago as October 2012. It has been widely reported that the government’s initial response to its consultation was that successful claimants were prepared to invest in higher-risk investments than currently assumed. However, further research published in August 2013 the diametric opposite! The tender process for the appointment of these experts has yet to be completed.   The further delay prompted an understandably outraged response from the Association of Personal Injury Lawyers (APIL), who with some justification accuse the Government of ‘dragging its heels’ on the issue of a discount rate that has been set at the same level for 13 years. In the Ministry of Justice’s somewhat testy reply Mr Grayling said he saw ‘no reason’ to publish a timetable setting out how long the decision will take. (Perhaps he sees little reason to attempt to garner favour with lawyers, recognising bridges and boats may have been well-burned?)   It is unclear when anything approaching a final decision will be reached. Clearly it is unlikely to be in the lifetime of the current Government. The only seemingly sure advice, is for anyone interested not to hold their breath!

Want to live longer … Move to Dorset!

Dorset is the birthplace of Thomas Hardy. Hardy loved the Christmas season and his novels, short stories and poems are full of references to it. My favourite Hardy novel “Under the Greenwood Tree” begins on Christmas Eve.  Dorset now has another attraction. It has the highest average life expectancy in the UK with men living to 83 years and women to 86.4 years. The Office for National Statistics has recently published its “Interim Life Tables, England and Wales, 2010-2012”.  http://www.ons.gov.uk/ons/publications/re-reference-tables.html?edition=tcm%3A77-325699 These will be of interest to personal injury lawyers tempted to spend part of the Christmas period doing schedules or counter schedules. The headline points are that life expectancy in England and Wales has increased by more than a year in the past decade. However, the distribution of life expectancy across England is still characterised by a north-south divide with people in local areas in the north generally living shorter lives than those in the south. Boys are also narrowing the gap on girls when it comes to life expectancy in England and Wales. The ONS reports that baby girls born 30 years ago were expected to live six years longer than boys. Now it is less than four. This is because fewer men now work in heavy manual labour which historically had high death rates as a result of industrial accidents. They are also less prone to diseases that affected workers in certain industries, such as mining. In contrast, women who might once have stayed at home have taken on the stress of working. In addition, many women also care for children or ageing relatives or both as well as providing for their family financially. Kathy Gyngell, a research fellow with the Centre for Policy Studies, observes that   “We are increasingly seeing more women suffering from what were once male diseases – heart disease, high blood pressure, even baldness”. In case you were wondering men in Blackpool have the lowest average life expectancy at 73.8 years while the lowest for women is in Manchester at 79.3 years. As well as Christmas, Thomas Hardy also had a view on old age: “The value of old age depends upon the person who reaches it. To some men of early performance it is useless. To others, who are late to develop, it just enables them to finish the job”. Florence Emily Hardy, “The Later Years of Thomas Hardy” (Macmillan, 1930). To late developers everywhere, Happy Christmas!

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.        

Secondary victims and psychiatric injury: what is the relevant event when considering proximity?

The Court of Appeal has recently given judgment in relation to recoverability for psychiatric injury by a “secondary victim”.  In Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194, the claimant brought a claim arising from the death of her mother, who had been injured at work when a colleague had caused a stack of racking boards to fall on her.  The claimant’s mother appeared to be making a good recovery, but three weeks after the accident she suddenly collapsed and died as a result of the accident injuries.  The claimant witnessed her mother’s death, but did not witness the initial accident.    The judge at first instance allowed the claimant to recover damages as a secondary victim. The defendant appealed on the basis of lack of proximity, due to the fact that the claimant was not present at the time of the accident or involved in its immediate aftermath.  Lord Dyson MR reviewed the line of authority concerning recovery by secondary victims beginning with Alcock v Chief Constable of South Yorkshire Police [1991] 1 AC 301, and noted that this claim did not raise the more common questions which often arise in secondary victim cases.  Rather, the issue raised by was whether or not the death of the claimant’s mother was the relevant incident for the purposes of the claimant’s claim as a secondary victim.  Lord Dyson MR held that, in secondary victim cases, the term “proximity” is used in two senses.  Considerations of proximity arise firstly in the legal sense, ie. whether or not the relationship between the parties satisfies Lord Atkin’s neighbour principle in order for a duty of care to be owed.  Secondly, the law then considers whether the requirement of proximity in time and space is satisfied, with Lord Dyson MR stating that “physical proximity to the event is a necessary, but not sufficient, condition of legal proximity”.   It was held that the death of the claimant’s mother was not the relevant incident in terms of legal proximity, and that allowing the claimant to recover would be “to go too far”.   If the first instance judge was correct, the claimant (subject to proving causation) would have been able to recover damages even if her mother’s death had occurred months or possibly years later. However, had she died at the time of the accident and the claimant suffered shock coming onto the scene shortly afterwards, the claimant would not have been able to recover damages because she would have failed to satisfy the physical proximity requirement.  Lord Dyson MR therefore held that the idea that the claimant “could recover in the first situation but not in the others would strike the ordinary reasonable person as unreasonable and indeed incomprehensible”.  For that reason, it was not reasonable to impose liability on the defendant, as to do so would also potentially enlarge the scope of liability to secondary victims to a much greater degree than had been done before:  “A paradigm example of the kind of case in which a claimant can recover damages as a secondary victim is one involving an accident which (i) more or less immediately causes injury or death to a primary victim and (ii) is witnessed by the claimant. In such a case, the relevant event is the accident. It is not a later consequence of the accident” This case should therefore serve as useful guidance in secondary victim claims involving such novel considerations.   It will also be interesting to see how this case may be used by defendants in clinical negligence claims, in order to argue that an alleged “secondary victim” cannot recover damages where they witness the death of an individual some time after negligent treatment, but where they did not witness the “injury” or treatment itself.

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

“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.