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.

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.

Personal injuries at the first modern Olympic Games

As the London Olympics draws to a close it is interesting to think about how our forefathers lived at the time of the first modern Olympic Games in 1896: what personal injuries they suffered and what claims they made.   Cars had just been invented, but few people could afford them, so there would have been very few car accidents. By interesting coincidence, the first fatal car accident is believed to have occurred in the same year as the first modern Olympics. The unfortunate victim was Bridget Driscoll who, on 17 August 1896, was struck down by a car giving demonstration rides in the grounds of the Crystal Palace in south London. Her death was subject to an inquest, during which the coroner stated that he “hoped such a thing would never happen again”.   Whilst the number of car accident injuries were of a lesser order than they are today, roads appeared to be just as dangerous. Research carried out by Aviva shows that entries such as “Solicitor, Weston Super Mare, thrown from carriage” were frequent in the records of its accident subsidiaries.    Personal accident insurance in this period covered not just negligence of third parties but also compensated for the insured’s own lack of forethought. Aviva’s sports-related entries may well provide a cautionary note to those of us inspired to take up Olympic sports now that the Games are done.   When riding  ·         Maltster, Warwick, struck eye with own whip when riding - £156 (Railway Passengers, 1881)   When shooting  ·         Farmer, Bardon, companion’s gun went off - shot in both legs - £105 (Railway Passengers, 1881)   At football  ·         Coachbuilder, Blackburn, fall over football - £30 (Railway Passengers, 1878)   At lawn tennis ·         Clergyman, York, fall over a dog while playing lawn tennis - £13 10s (Railway Passengers, 1878)                         Other assorted sports ·         Stationer, Chorlton, fall over croquet hoop - £33 (Railway Passengers, 1870)   ·         Vicar, Salop, fall when playing leap frog - £120 (Railway Passengers, 1875)                                 ·         Ironmaster, Penn, slipped when fencing - £75 (Railway Passengers, 1886)    

A Tale of Two Defences: Drugs, Ex Turpi Causa and the Uninsured Drivers Agreement

What’s the scope of the “criminal conduct” exception in the Uninsured Drivers Agreement and how does it relate to the principle formally known as ex turpi causa? This was the issue before the Court of Appeal in Delaney v (1) Pickett (2) Tradewise Insurance Services Ltd [2011] EWCA Civ 1532. C was a passenger in D’s vehicle and was badly injured because of D’s negligent driving. Substantial quantities of cannabis were found on the parties after the accident, and the judge found that C and D had travelled together to buy and then transport cannabis for subsequent resale. D defended the claim, relying on ex turpi causa. In the mean time, D had confessed habitual drug use to the police. His insurers discovered this and successfully took proceedings to avoid his insurance policy for material non-disclosure. Under the Uninsured Drivers Agreement the insurer was potentially liable to satisfy the judgment as road traffic accident insurers. But the general duty to indemnify is subject to a number of exceptions, notably Paragraph 6(e)(ii), where “a claim which is made… by a claimant who… was voluntarily allowing himself to be carried in the vehicle and… knew or ought to know that… the vehicle was being used in the course of or furtherance of a crime”. Insurers argued that this clause should be given a literal construction: the vehicle was being used in the process of committing the crime and as part of the carrying out of criminal activity. Both defences succeeded at first instance, and C appealed. The Court of Appeal disagreed with the judge’s conclusion on ex turpi causa. Following Gray v Thames Trains [2009] 1 AC 1339 and Pitts v Hunt [1991] 2 QB 24: This was not a case where the Court could not determine a standard of care for D’s driving, unlike (say) a getaway car.       This was not a case where liability would be an affront to the public conscience.  The crime provided the occasion for the accident rather than actually being the cause of it. The immediate cause was D’s negligent driving, and not the crime. The illegal acts were incidental.    Given the size of this claim, success against D would be cold comfort unless the insurers were also liable. So where did this leave the insurer’s argument? Was the exclusion under Paragraph 6(e)(ii) wider than the ex turpi causa defence?   Their Lordships were all agreed that, taking a literal reading of the clause, (on the judge’s findings) to C’s knowledge, the vehicle was indeed being used “in the furtherance of crime”. But this would mean a very wide exception, and potentially prevent recovery even where the crime in question was very minor – for example speeding, or possession of a small amount of a controlled drug.    Ward LJ’s answer was that the exception should be “proportionate” and was limited to “serious” crime of the sort that would give the driver a defence of illegality: this crime was not “serious” enough and the exception should not apply.   The majority (Richards and Tomlinson LJJ) did not agree. Their reasoning is not consistent, however:- Richards LJ considered there was a de minimis exception, but that possession with intent to supply was certainly serious enough. The use of the vehicle did not have to constitute an ingredient of the offence for the exception to apply.   Tomlinson LJ took a firmer line. Use of the vehicle was not incidental to the crime, it was an integral part of it. Whilst the literal reading of the clause could lead to recovery being denied where the crime was minor, it was not appropriate for the court to make a value judgment about the seriousness of the offence, which was irrelevant to the criteria for liability under the agreement. Tomlinson LJ did not endorse the de minimis exception. This case underlines that the ex turpi causa defence will rarely succeed. But exceptions to liability under the Uninsured Drivers Agreement will succeed far more often. When these succeed, the cause of the accident may well be nothing to do with the circumstance prohibiting recovery – for example that C knew (or ought to know) the vehicle was stolen, or that D was not insured. In those cases, blameworthiness on C’s part is not “the touchstone of recovery”. However, if insurers use this decision to argue more frequently that there should be no recovery by reason of very minor crimes, it is likely that pressure will mount for a change to the 1999 Agreement.

“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.  

The growing perils of litigating on a CFA without ATE...

The High Court has continued chipping away at the iniquitous (as some see it) situation where an impecunious claimant can bring proceedings on a CFA without ATE insurance protection. So if the claimant wins, the costs are paid, if the claimant looses – too bad, the defendant is left to sing for their costs incurred in defeating the claim.   A number of defendants faced with this situation have chosen to go after the claimant’s solicitor for their costs on the basis that, in reality, the Claimant’s solicitor is ‘funding’ the claim (or at least the disbursements) and accordingly they can be held liable for the whole or part of the costs incurred in defeating the Claimant’s claim.   Heretofore the courts have been very reluctant to make any orders that the solicitors firms acting for Claimants pays the winning parties’ costs.   However, very slowly, one senses a change of direction from the senior courts. Most recently in GILL GERMANY v GAVIN FLATMAN : BARCHESTER HEALTHCARE LTD v RICHARD WEDDALL [2011] EWHC 2945 (QB) Mr Justice Eady, in a decision handed down on Thursday 10 November 2011, found in favour of the Defendants on an interim appeal. The Defendants had, at first instance, been refused an order requiring Claimant’s solicitors to disclose the two Claimants’ funding arrangements.   Eady J allowing the appeal made clear that although orders against non-parties were to be regarded as exceptional, that only meant outside the ordinary run of cases where parties pursued claims for their own benefit and at their own expense. The ultimate test was whether it was just in all the circumstances to make the order. A third party costs order could be made in circumstances where the funder was "a real party" not just "the real party". A solicitor would become a funder if he paid out sums on the basis that they would be recovered from the other side in the event of success, or not at all in the event of failure. A solicitor would then be providing funds in the way of business. Any funding role by a solicitor would only be countenanced if it carried with it the risk of having to pay the defendant's costs if he was ultimately successful. A disclosure order was necessary to establish what exactly had passed between a claimant and his solicitor.   This is a trend to watch, I think, and one for firms acting for Claimant’s on CFA’s without ATE insurance to bear in mind.  

Referral Fees to be Banned

  The Government has today announced that it will ban referral fees in personal injury claims. Just a week ago I published an article on the Butterworths Public Injury Law Forum (http://www.personalinjurylawgroup.co.uk/index.php?/Opinion/the-insurance-industrys-dirty-secret.html) setting out the criticisms made of referral fees and the proposals for reform.  Lord Justice Jackson recommended a ban in his "Review of Civil Litigation Costs". However the Government initially seemed ambivalent about such a measure, stating in June that referral fees were only "only a small part" of the no win, no fee system for personal injury claims. However in July the Prime Minister indicated that he was ‘sympathetic’ to the idea of a ban. It is now clear that the Government wishes to pursue this measure.  There is currently no timescale for implanting a ban. However the Government is hoping to have such a measure included in the legal aid bill, possibly by Easter next year.  

The Latest Issue in RTA Litigation – Inflated Repair Costs

Many readers will be aware of the recent dispute over allegedly inflated subrogated motor repair costs claimed by Royal Sun Alliance and other insurers in road traffic accident claims. For those of you not familiar with it, there are a number of claims going through the courts this year in which insurers have submitted Breakdown of Invoiced Costs (“BIC”) documents as evidence of the repair costs incurred. They have refused to disclose the garage repair invoices to support the sums claimed as these give different figures. The reason for the difference appears to be that the insurers are claiming their own administrative costs in sending the vehicles for repair, however they are unwilling, at present, to disclose these costs.   From my experience, and those of my colleagues, many judges appear to be familiar with the issue and the most frequent outcome appears to be either to dismiss the repair costs in full on the basis that the claimant has failed to prove its losses or to allow a small amount in recognition that some damage has occurred. In my view insurers’ administrative costs should be recoverable once they are disclosed if they have arisen as a result of organising the repair of the claimant’s vehicle and are not general business costs, and provided that they are reasonable in the amount.   It is understood that a test case is being heard in the High Court in October. It is to be hoped that this will resolve the issue – though a profitable source of work for defendant solicitors (who are frequently receiving unreasonable behaviour costs in the small claims track) and the junior common law bar, this litigation unnecessarily increases insurance premiums.

Careful drivers wanted....!

Following the decision of the European Court of Justice in Association belge des Consommateurs Test-Achats ASBL v Conseil des ministres - C-236/09 [2011] All ER (D) 07 (Mar); [2011] Lloyd's Rep IR 296; [2011] NLJR 363 which declared unlawful the practice by insurers of using gender to determine the price of motor insurance, claims for additional motor insurance costs in schedules will need to be reassessed. It is now common to see included under the heading of “Future travel / transport” a claim for the additional insurance which an injured Claimant will have to pay as result of having to insure a vehicle to be driven by his or her carers. Currently such claims usually range from about £500 to £2,000 per year. When the current practice of insurers becomes unlawful on 21 December 2012 most commentators believe that male premiums will not fall by as much as female premiums will rise. The British Insurance Brokers' Association (BIBA) estimates that the decision will mean that women will typically pay up to 25% more for their motor insurance. For some women it will be more than 50%. This is potentially significant because many of those caring for people with learning or physical difficulties are women and frequently young women. Research by moneysupermarket.com (http://www.moneysupermarket.com/c/news/how-young-drivers-can-cut-insurance-costs/0011053/) suggests premiums for female drivers have been rising fast. Over the last year premiums for women aged between 17 and 25 have risen by 34% or an average of 70 pence a day. Insurance for young men is already very expensive. An 18 year old male who has recently passed his driving test driving 10,000 miles a year in a 2005 Ford Fiesta can expect to pay at least £6,016 for his motor insurance according to moneysupermarket.com. Following the decision in Association belge, it can no longer be assumed that a Claimant will pay less if the carers driving him or her are female particularly if, as is often the case, they are not included as named drivers on the relevant motor insurance policy. Although it is still 18 months until December 2012 the cost of male and female premiums is likely to converge long before that time and these increased costs will need to be reflected in the claims made for travel and transport costs in future schedules.    

Warning - Potholes!

My morning commute was brightened up this morning by an article in the Metro, (the staple free newspaper for London commuters,) entitled “Motorists sign up to a pothole warning drive”. I think the last word of the title should have read “Sign”. The article focused on a triangular warning sign depicting a lopsided rear view of a car with one wheel down a pothole. It is suggested the Department of Transport is being lobbied by Confused.com to introduce the dedicated sign for use on potholed roads.   The first thing I (and I would assume, many of my fellow commuters) thought, was “Aha! What about section 58(2)(e) of the  Highways Act 1980?” Certainly I thought that the use of such a sign could potentially raise some issues as to a highway authority’s special statutory defence pursuant to section 58 to a claim brought against it pursuant to section 41 of the same Act.   Would such a permanent sign be a factor the court should take into account pursuant to section 58(2)(e) (which concerns warning notices) in relation to the court’s assessment of whether the highways authority had in place a “reasonable” system of highways inspection, maintenance and repair?   My inclination is that the answer to that question is “absolutely not”, given that it would then be possible for a highways authority to place ‘Pothole Warning Signs’ at 25 yard intervals along all their roads; sit back and spend their highways budget on something else; and pray in aid their sign’s presence as a section 58 defence in any ensuing court actions against them for non-repair. In any event, surely the presence of such a sign could be described as akin to an admission by the highways authority of a failure to repair and thus a breach of section 41 of the 1980 Act.   However in borderline section 58 defences, the presence of such a sign may provide a tipping point for the court. Likewise it may have a bearing on a finding of contributory negligence?