piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

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.

Punching inanimate objects and common sense

In 2010 Lewis Pierce was nine and a half years old and one day was playing at school with his younger brother George; both boys went over to a water fountain and George sprayed Lewis with water. George, seemingly not seeing the funny side then attempted to punch his brother, who being a sensible lad moved out of the way. Lewis missed George and ended up hitting the water fountain, cutting his right thumb. Consequently proceedings were started with the local authority as the Defendant, it being alleged that the water fountain had a sharp underside which amounted to a real and foreseeable risk. The judge at first instance agreed with this holding that there was a real risk that children might skylark around and could easily trip and cut their heads against the underside of the fountain (you’ll note that this wasn’t what happened to Lewis!). As such, Lewis was awarded £3,215.16. The Defendant appealed and the Court of Appeal (MR, McFarlane LJ and Sharp LJ) has today handed down their decision (West Sussex CC v Master Lewis Pierce (A child by his litigation friend Mrs Annette Pierce) [2013] EWCA Civ 1230. The Court allowed the appeal with Lady Justice Sharp noting that the trial judge had failed to identify and then answer the correct legal question. The judge failed to mention the Occupiers’ Liability Act 1957 and proceeded on the flawed basis that “once he had determined that the underside of the water fountain was sharp and there was a possibility that an accident might occur, the defendants were liable for what happened unless they had conducted what the judge described as a properly considered risk assessment.” Sharp LJ helpfully set out the correct question in such cases: “The question which has to be addressed … is whether as a matter of objective fact, visitors to the School were reasonably safe in using the premises, including for this purpose, the water fountain, bearing in mind of course that children do not behave like adults, and are inclined to lark around.” The answer to the question in this case was “yes”, the water fountain was reasonably safe (or more accurately that the evidence did not establish that it was not safe). The Court did not consider the underside of the fountain to be sharp (having had the opportunity to look at it) but even if it were sharp is was said that “by no stretch of the imagination could it be said to constitute a danger to children. Certainly the edge could be have been bevelled, or padded, and had that been done the claimant might not have injured his thumb. But to say that misses the point it seems to me. The School was not under a duty to safeguard children against harm under all circumstances … as a matter of generality, the School was no more obliged as an occupier to take such steps in respect of the water fountain than it would be in respect of any of the other numerous edges … against which children might accidentally injure themselves …”. In conclusion Sharp LJ said “The law would part company with common sense if that were the case, and I do not consider that it does so”.

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.

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”.

Quantifying Future Loss of Earnings: Ward v Allies & Morrison Architects [2012] EWCA Civ 1287

At the quantum only trial of a personal injuries matter, HHJ Cleary held that he did not have sufficient evidence pertaining to the claimant’s level of likely future earnings and the likely duration therof. Nor was he satisfied that the claimant was disabled. Accordinly, the trial judge made a lump sum award of £30,000 to allow the claimant to retrain following Blamire v South Cumbria HA [1993] P.I.Q.R. Q1, in addition to some £24,000 in general damages and £19,750 for past loss of earnings. The Claimant appealed on the contentions (amongst others) that the Judge should have used the Ogden tables to calculate lost future earnings (expected to quantify a loss of £176,633.46 on the basis that the Claimant expected to become a theatrical model maker) rather than have made a broad brush Blamire award.   The Court of Appeal (Aikens LJ, Kitchen LJ & Sir Richard Buxton) held that whilst the Ogden tables should be the usual method of quantifying such loss, this depended on the court’s ability to make findings of fact as to the likely earning capacity of a claimant, which the Judge in the instant case was unable to do. It was re-emphasised that it is for a claimant to prove their loss in this regard. In the instant case it was held that the judge was entitled to hold that there were too many imponderables to have allowed a firm finding as to the Claimant’s likely career progression and thus her future loss of earnings award. Thus the Judge was entitled to make a Blamire award.  

Vicarious Liability for a non-employee - again

XVW & YZA v X School for Girls & Adventure Lifesigns Ltd [2012] EWHC 575 (QB) This action was brought by two Claimants and arose out of a school trip/expedition to Belize in July/August 2005. The Claimants were pupils at the D1 school; they were aged 16 years and 15 years respectively. D2, a UK company, assisted with the planning of the expedition, as well as providing two ex-military adult staff to accompany the same. The expedition was a developmental training experience for the participants; it was not a holiday. The young women who participated were actively involved in the choice, selection, planning and budgeting for the index expedition. A teacher from D1 also accompanied the expedition. During the course of the expedition it was necessary for the planned itinerary to be altered as a result of a hurricane which affected the area (Mexico) to which the group intended to travel. The young women participating in the expedition were actively involved in the change of plan and the arrangements for alternative accommodation. A local Belizean company provided accommodation to members of the expedition party in return for work undertaken by the participants and an agreement to undertake trips with the Belizean company to be paid for by the participants from funds held by them. A local man (A) was the son of the owner of the Belizean accommodation and might have been co-owner of the resort where the group stayed. During the early hours of the morning of 1 August 2005 A raped the Claimants and another of the young women on the expedition who was staying in the same cabana accommodation at the resort. The Claimants alleged that they had sustained psychiatric injury as a result of the sexual assaults. They brought proceedings against the Defendants in respect of the alleged intentional wrongdoing of A. The Claimants’ case was that D1 and/or D2 were vicariously liable for the conduct of A. Alternatively, it was submitted on their behalf that the scope of D1 and/or D2’s duty of care extended to the intervening criminal conduct of A (which was, the Claimants alleged, foreseeable) and that there had been a number of causally relevant breaches of duty by D1 and D2 with respect to the planning of the expedition, the supervision of the expedition, the vetting of A and the security of the Claimants. The Claimants relied on a number of alleged incidents of inappropriate behaviour by A prior to the assaults (although it was denied that these incidents had come to the notice of D1 or D2’s staff). The trial took place before Mackay J on 27 – 29 February and 1 March 2012. The Claimants’ claims were dismissed and it was held: (1) A was not an employee of D1 or D2 and his involvement, such as it was, in the expedition was sufficiently limited that it was not just and fair to describe him as a person for whose actions D1 or D2 were vicariously liable (Lister v Hesley Hall Limited [2002] 1 AC 215 (HL(E), JGE v The English Province of Our Lady of Charity & Anor. [2011] EWHC 2871 (QB) and EL v The Children’s Society [2012] EWHC 365 (QB) considered, among other cases; (2) The scope of the duty of care was to be determined by application of the Caparo test: was it fair, just and reasonable for the duty to extend as far as the Claimants contended; (3) There was no causative breach of duty in this case. It was not alleged that A had a criminal record which went undiscovered or that Belize had a UK-style system of CRB checks. The local police would, if they had been consulted in advance, probably have given A a good character reference. The school party was continuously supervised by 3 experienced adults and, short of placing a guard outside each cabana occupied by the school party at the resort, there was no means by which to defeat A’s assault (he had been careful to keep his conduct towards the young women, prior to the assaults, hidden from the adult staff).  This case is the latest in a number of recent decisions in which vicarious liability is discussed in respect of persons who are not employees (or even deemed or temporary employees) of the Defendant. These cases are discussed in the most recent (March 2012) edition of the Chambers Personal Injury Briefing  and in Lisa Dobie's post  below.

“Safe sex?”

The New Year will hopefully bring with it important news from Australia for employees everywhere - particularly those having sex in hotels!   It has long been the law that an employee who is negligently injured in the course of employment is generally entitled to look to his or her employer for compensation.   However, in a case which is currently awaiting the delivery of a reserved judgment in the Federal Court of Australia, the time, place and conditions under which an “on-the-job” accident occurs has been the subject of anxious judicial scrutiny.   The Claimant, a female public servant, sued the Australian federal government after being injured while having sex on a work trip in a hotel 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 Claimant’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 Claimant 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 hotel in a small town in New South Wales ahead of a departmental meeting early the next day.     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, the Claimant’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, Justice Nicholas, has reserved his judgment describing the case as “by no means easy”.   The judge is right to be cautious. Claims by employees have succeeded in the past when injuries have occurred in the course of employment related recreational activities involving drinking and socialising where negligence has been made out. It can be argued that being injured whilst having sex is no different provided that the injury occurred within an overall period or episode of work and negligence can be shown. Would the position be any different if, for example, the hotel had a gym and the Claimant had been negligently injured whilst working out on one of the hotel’s exercise bicycles or cross trainers?   The judgment may also provide useful guidance as to whether, at least in Australia, sexual activity should now be regarded by the prudent employer as a reasonably foreseeable part of an overnight stay in a hotel by an employee. If so, this will give a whole new meaning to the expression safe sex.