the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane


Kershaw v (1) Carey (2) Banco Vitalicio de Espana [2011] September. HHJ Armitage QC (Manchester CC) This claim was brought by the Claimant in the Manchester County Court. It arose out of a rather unusual road traffic accident in Puerto Banus. The Claimant and the First Defendant were both British nationals and were domiciled in England/Wales. The Claimant was a retired lady. The First Defendant was the daughter of the Claimant’s friend. The Claimant and the First Defendant were, together with the Claimant’s friend, on holiday in Spain. On 15 May 2007 the ladies were about to take a journey by hire care. The First Defendant was driving and her mother occupied the front passenger seat. The engine of the vehicle was running and the Claimant’s case was that she attempted to get into the rear passenger side of the vehicle. As she did so, and at a time when her feet were still on the kerb, the vehicle moved off. The Claimant suffered injury as a result. The vehicle had been hired locally by the First Defendant (at Malaga airport). The Second Defendant, a Company incorporated in Spain, was the insurer of the hire vehicle and of the First Defendant. The Claimant brought proceedings against both Defendants in the English Court. The First Defendant was English domiciled and, therefore, liable to be sued in the Courts of her domicile in accordance with article 2(1) of EU Council Regulation 44/2001 (“the Judgments Regulation”). The Claimant had, as a matter of Spanish law, a direct right of action against the Second Defendant and this entity could, therefore, be sued in the English Courts in accordance with section 3 of the Judgments Regulation (as interpreted by the European Court of Justice in Odenbreit (2007) Case C-463/06). The Claimant sued both Defendants out of an excess of caution; she was keen to ensure that both parties were locked in to the English litigation. However, there was no need for her to do so because the insurer stood behind the driver and had confirmed cover. In the circumstances, the Claimant could have chosen to sue only the driver (who was liable to be sued in England) or the insurer alone (which was liable to be sued direct im England as a result of the Odenbreit decision). The joinder of both Defendants gave rise to an interesting conundrum. While both Defendants had submitted to the jurisdiction of the English Court (by entering a Defence), the Claimant was dependent on Spanish law in order to pursue her claim against the insurer (for accidents outside the UK there is no right to sue the insurer direct as a matter of English law). The problem was that the Claimant had issued her proceedings in time according to English law, but out of time according to Spanish law. In the circumstances, the Claimant found herself in the uncomfortable position of having to rely on Spanish law in order to provide her with the jurisdictional right to sue the Second Defendant insurer, but then having to rely on English law in order for her claim to avoid a limitation defence. A preliminary issue trial was fought on, “The issue of applicable law and the issue of limitation ... .” The Claimant’s position was that the application of section 12 of the Private International Law (Miscellaneous Provisions) Act 1995 ought to result in the displacement of the presumption contained in section 11 of the same Act that the law of Spain (the place where the tort occurred) should apply. The Claimant argued that the factors connecting the tort to England, rather than Spain made it “substantially more appropriate” to apply English law. The Defendants disagreed. It was argued on their behalf that the Claimant needed Spanish law in order to have a jurisdictional right to sue the Spanish insurer in the English Courts and that it was, therefore, illogical for English law to be applied to the issue of limitation. The Defendants’ position was that Spanish law applied and, therefore, the claim was statute barred. The Judge found for the Claimant and it was held that the applicable law was English law. Accordingly, the claim was not time barred: “... if this had been a UK registered car, driven in Spain under an insurance provided by a UK insurer (or for that matter an insurer in any country other than Spain) the balance in favour of displacement of Spanish by English law would have been overwhelming. The primary Defendants would have expected to be able to litigate in England and be subject in their relationships to the limitation law of England. The only substantial connection between this case and the law of Spain is the insurer. But for the advantage of limitation I doubt whether this argument would have been made for the second defendant. That is not a criticism. It merely serves to underline the fairly tenuous connection this accident has with Spain. It is merely the domicile of a secondary party. My judgment is that there is sufficient to displace the general rule. The factors connecting the case to English law are significantly greater than those connecting it with the law of Spain and make it substantially more appropriate to apply English law.”    

RSA Repair Costs - an end to the saga?

There has been a significant and until now unpublicised development in the long-running line of case concerning inflated repair costs claimed by RSA.   Well, as the judgment is on BAILII and publicised on the Judiciary Website, this is not quite an exclusive, but it is close!   Judgment was handed down in Kevin Fallows v Harkers Transport on Friday 2 September 2011. It came to my attention appearing at a trial the day before, when the district judge I was appearing before hinted very strongly that HHJ Platt in Fallows had come to a very firm decision in a case which should put this matter to bed. For what it is worth, the district judge in my case held that in his view these cases "were tantamount to fraud" and that counsel should go outside and "talk". The matter was settled by consent.   HHJ Platt, sitting at Romford County Court sought to clarify the situation as to various standard charges RSA was routinely claiming from defendant insurers, pursuant to an arrangement whereby their clients’ motor repairs were carried out by a subsidiary company. The judgment is somewhat scathing of this approach and suggests that simply this is a matter of the trite law of causation; reasonableness; mitigation and simply the obligation upon a claimant party to prove its loss.   The judge is also scathing as to the frequent refusal by RSA to disclose any proper invoices from repairing garages. The Judge held that by redusing to do so, the cases had little chance of settling without requiring a trial. At paragraph 60, the court held: “The court is left with the clear and unhappy impression that the provisions of CPR r 1.3 have simply passed by RSA and its solicitors unheeded both in this case as in others, and they remain in a mindset where the obligation to make proper disclosure is some kind of optional extra.”   Is this an end to the saga? HHJ Platt clearly intended his judgment to constitute some kind of final word. He held at the final paragraph that: “Although this is not a binding judgement in terms of the rules of precedent it carries a degree of authority which requires claimant's solicitors and advocates to carry out their professional duty to the court by bringing the judgement to the attention of any judge before whom they appear in any subsequent case in which these issues are litigated. Failure to do so may lead to costs orders under CPR 44.14.”   Read all about it at http://www.bailii.org/ew/cases/Misc/2011/16.html

Part 36... again

The Court of Appeal has overturned Warren J's decision in "C v D1 & D2". Question: was an offer headed "Offer to Settle under CPR Part 36" which was expressed to be "open for 21 days":- a) A time-limited offer and/or b) A Part 36 offer. The party making the offer argued it was a time-limited Part 36 offer. Warren J agreed it was time-limited, but held a time-limited offer was not a Part 36 offer. The Court of Appeal disagreed, construing the offer so as to be compatible with Part 36. It was a part 36 offer and, not having been withdrawn, was open for acceptance.  

We are the Village Green Preservation Society, God save Donald Duck, Vaudeville and Variety

The village of East Dean nestles in a fold of the South Downs. It has a duck pond (in fact, several duck ponds), a forge and an excellent pub: the Tiger Inn. It also has a village green. East Dean is a traditional sort of place. It is the home of Summer Fetes, the Women’s Institute and the Royal British Legion. Jam making and Morris dancing are practically compulsory. Most years a maypole is erected near the War Memorial on the village green just in front of the pub. The children of East Dean dance to welcome the coming of Summer. This seems an apt time of year to revisit the Court of Appeal decision in Cole v Davis-Gilbert [2007] EWCA 296. More...

Secondary Wrongdoers

Forget primary and secondary victims.  Are we losing sight of who is really responsible for unhappy incidents that befall claimants in the rush to find a secondary wrongdoer who is more likely to be insured or capable of being publicly admonished?  The Court of Appeal has recently overturned the trial judge in the case of Vaile v LB Havering [2011] EWCA Civ 246.  The claimant teacher at a special needs school was the victim of a nasty assault by a teenage pupil.  The teacher sued her employer for failing to assess his needs properly as being on the autistic spectrum disorder (ASD) and so rendering her place of work unsafe.  The trial judge agreed that the authority did fail to assess the boy properly, could not see that this had actually made the workplace unsafe or that the failure had actually caused the assault to happen, since it was unclear how he would have been treated differently even with the diagnosis of ASD.  The Court of Appeal differed and felt that breach, danger and causation were all established and the claimant should succeed.  This is not a new phenomenon.  But there is a feeling in some quarters that there is a growing trend to look to the “secondary wrongdoer” to blame for a claimant’s misfortune, especially if there is liability insurance there.  A violent club-goer attacks another customer at the nightclub, so the victim sues the club owners for letting the assailant in or for allowing the fight to break out.  We now practice in a world where Legal Aid is unavailable to meritorious claimants in conventional personal injury claims against primary wrongdoers, but it can be provided, for example, to the family of the deceased for inquest proceedings if there is a suggestion of some failing by a public body.  So the family of a troubled (but sane and adult) soul who commits suicide having previously been in care as a child can receive specialist representation to put the local authority under a searing spotlight in a lengthy jury inquest and the months of proceedings leading up to it.  This even though the verdict of suicide is never in doubt and the brutal fact is that the death occurred by the deceased’s own choice.  Does this really provide the family with the “answers” they need and “closure”?  Is this really the best use of scarce Legal Aid funds? 

Man walks into a bar...

A personal injury claim in Chambers has just come to its conclusion (it is hoped) with the defendant’s successful appeal from a district judge to the circuit judge.  The district judge had held the defendant county council liable for the claimant’s unusual highway tripping injury, but on appeal that decision was overturned.  The claimant had been walking home in the early hours on a Saturday night after a party.  Needless to say, the district judge accepted his account of an abstemious evening in which he scarcely touched a drop.  Being sober, he then walked home on a route he knew where there was a Victorian piece of iron work at knee height installed in the pavement at the entrance to the local common.  It was the remains of an old kissing gate which had been used to keep livestock from wandering off the medieval common where there were grazing rights, and was now effectively a bar stretching across the whole width of the pavement, with space to go around it to the side.  There were no streetlights nearby and our hero walked straight into the bar and fell face first towards the ground.  He sued the county council because it was the highway authority, but made no claim under the Highways Act 1980.  His claim was for negligence only.  The problem was that no-one knew who had installed the kissing gate many moons ago, who had modified it some time later or who was responsible for maintaining it now.  No-one at county hall could be found who thought the council maintained it.  But it was considered by the local worthies to be an interesting part of the local heritage. The district judge found that the council was subject to a duty of care, having “assumed responsibility” by dint of carrying out routine maintenance inspections of the highway itself, ie because it knew of the presence of the iron structure.  On appeal, the circuit judge pointed out that the postman probably also knew of its presence, but he hadn’t assumed any responsibility.  No basis for a duty of care was discernible.  Unlike the notorious case of Shine v LB Tower Hamlets (child leapfrogging over a wobbly iron bollard), the council had not installed the structure and were not liable of the obstruction. So the moral of the story: carry a torch when wandering around heritage sights at night.

Fraudulent personal injury claims and contempt of court

 Mrs Justice Cox has reminded us of the test and standard to be applied in applications for committal for contempt of court arising out of allegedly fraudulent personal injury claims.  In Montgomery v Brown [2011] EWHC 875 the Defendant made a range of allegations that C had lied about a substantial loss of earnings claim.  Mrs Justice Cox confirmed the test that a person is guilty of contempt of court if, in legal proceedings, he interferes or attempts to interfere with the administration of justice. Putting forward a dishonest claim, suppressing documents which should be disclosed and making false statements of truth were all examples of contempt. The court had to be satisfied, to the criminal standard, that the statements made by C were false, that he knew them to be false when he made them, that at the time they were made they would have, if persisted in, been likely to interfere with the course of justice in some material respect and that he knew that they would be likely to so interfere (Kabushiki Kaisha Sony Computer Entertainment Inc v Ball (Contempt of Court) (2004) EWHC 1984 (Ch) applied).   On the facts, contempt was not made out; however the case is a useful reminder of the test to be applied and the standard it must be proved to.    

Knit at your peril...

I’ve long believed that knitting is a rather odd pursuit. I learnt in childhood that the results rarely justify the hours of effort: misshapen Christmas presents and unwanted scarves still litter cupboards at home. However, I didn’t believe that knitting was actually dangerous. It seems that I was wrong. As a result of a recent Supreme Court decision we now know that knitting – at least on an industrial scale – can cause hearing loss. The Supreme Court appeal concerned the liability of employers in the knitting industry of Derbyshire and Nottingham for hearing loss that employees suffered during the years prior to 1 January 1990 (being the date when the Noise at Work Regulations 1989 came into force). The key issue for the Supreme Court Justices was whether liability could be established at common law and/or in breach of statutory duty pursuant to section 29(1) of the Factories Act 1961 in respect of an employee able to prove a noise-induced hearing loss as a result of exposure to noise levels between 85 and 90dB(A)lepd. The appeal is Baker v Quantum Clothing Group & Anor. [2011] UKSC 17 (judgment was delivered yesterday and a report is in today’s Times and on Lawtel).

We can all now resile from pre action admissions

In Woodland v Stopford [2011] EWCA Civ 266 handed down today the Court of Appeal again considered the law on resiling from pre action admissions when it dismissed an appeal by the Claimant of the decision of HHJ Holman who had permitted the Defendant to resile from their pre action admission. The claim arises as a result of the infant Claimant suffering an hypoxic brain injury during the course of a school swimming lesson on 5th July 2000. The Claimant was left severely disabled as a result of this injury and the claim is valued at between £2 and £3 million. After an initial denial of liability a pre action admission of liability was made by the Defendant on 27th November 2007. The Defendant then made an interim payment. Thereafter however the Defendant purported to retract that admission in further pre action correspondence on 27th July 2009. The claim was then issued on 25th November 2009 and the pre action admission was pleaded. There then followed cross applications made by the Claimant for Judgment on the admission and by the Defendant for permission to resile from the pre action admission. The applications came before HHJ Holman in April 2010. The applicable law was contained within CPR 14.1A and in particular paragraph 7.2 of the Practice Direction which sets out a non exhaustive list of factors for the Court to consider when hearing such an application. In relation to the Practice Direction HHJ Holman held that the fact that no new evidence had come to light was not fatal to a party wishing to resile. New evidence coming to light was simply one of the matters that the Court must have regard to. In addition HHJ Holman found that the reason why the Defendant had changed their mind about admitting liability was unclear. This absence of information again did not bar the Defendant from succeeding in their application. The clear inference that HHJ Holman formed was that the Defendants had simply misjudged the value of the claim when making the admission. In all the circumstances HHJ Holman permitted the Defendants to reslie from their admission. The main grounds of appeal raised were that there had been no new evidence relied on by the Defendant and that there had been no explanation given to explain the Defendants change of mind. Reliance was placed upon the decision of Steel J in American Reliable Insurance v Willis [2008] EWHC 267 (at present cited in the White Book) that these factual issues were crucial for a Court when deciding whether a party should be permitted to resile. In that case Steel J had described the requirement to show why a party had changed its mind and to evidence the same as a threshold requirement for the party making such an application.      The Court of Appeal held that American Reliable was an unusual commercial case on very different facts. The Court held that it would be “quite wrong” to lift Steel J’s observations out of context and elevate the factual issue of why a party had changed its mind on an admission to a threshold test. Instead the Court has a wide discretion under CPR 14.1A and the listed factors are not listed in any hierarchical order. In this case the Defendant had changed its mind mainly following a second careful appraisal of the known facts. This was an adequate explanation to found such an application. The Judge had carefully considered all of the listed factors he was required to consider and had come to a decision he was entitled to come to.    As a result the Claimants appeal was dismissed and the Defendant was permitted to resile from their pre action admission.    

Causes and effects: The Supreme Court decision in Sienkiewicz and Willmore

The Supreme Court today handed down its judgments in two linked mesothelioma appeals: Grief (UK) Ltd v Sienkiewicz and Knowsley MBC v Willmore [2011] UKSC 10.  In doing so it made a number of important findings on the law of causation in tort generally as well as the special Fairchild rule applicable in mesothelioma cases.  It also doomed counsel appearing in future industrial disease cases to the embarrassment of likely mispronunctiation of the name of the claimant in the Sienkiewicz case. The feature shared by the two cases was that the claimant identified a single environment in which he was exposed to low levels of asbestos by the actions of a single defendant.  Such cases are termed, potentially misleadingly, "single exposure" cases.  They are to be contrasted with "multiple exposure" cases in which a claimant is exposed, either concurrently or consecutively, to exposure in different environments and/or for which different defendants are responsible. As is well-known, in Fairchild the House of Lords concluded that it was impossible in the current state of scientific understanding (as is still the case) to prove on the balance of probabilities that a particular defendant caused mesothelioma in multiple exposure cases.  That therefore justified a departure from the normal requirement to prove that it was more likely than not that the defendant caused or contributed to the onset of a disease, and led the House to rule that demonstrating that a defendant had materially increased the risk would establish liability. In Barker, the House decided that the logical consequence of this was that a defendant should only have to pay an aliquot share of damages in line with the degree to which, in multiple exposure cases, he had increased the risk of contracting mesothelioma.  However, Parliament swiftly intervened to provide, by s3 of the Compensation Act 2006, that a defendant would have to pay full damages. In the two cases under appeal, it was argued that in a single exposure case, the only competing causes were general environmental exposure which, rather worrying, all of us who live in cities apparently have (see Fairchild at [7] per Lord Bingham) or exposure unknown and unidentified.  It should be necessary for a claimant to prove that the exposure to asbestos by the defendant at least doubled the risk of the claimant contracting mesothelioma. The origin of this argument lies in the science of epidemiology or the statistical analysis of the correlation between events in order to establish causes and effects.  To those who have never worked as hard in their lives as they had to do to get a Maths A-level (ie me), Lord Phillips' judgment contains a reasonably comprehensible account of the significance of a doubling of risk: at [80]-[84].  In the Sienkiewicz case, the trial judge had concluded on the basis of the expert evidence that the exposure of claimant to asbestos in the defendant's employment had increased the risk by 18%.  No such conclusion was reached in the Willmore case of very slight exposure from a number of sources while the claimant was a pupil at the local authority's secondary school. The Supreme Court, sitting in a panel of seven, unanimously rejected the principle that in a "single exposure" case, a doubling of the risk would need to be demonstrated.  Rather frustratingly, each member of the court decided it was necessary to give a judgment and this will no doubt lead to detailed dissection of the decision in future cases.  The main judgments were given by Lord Phillips and Lord Hope. First, they disagreed with the Court of Appeal's view in Sienkiewicz that the defendants' arguments were precluded by the 2006 Act.  It was pointed out that all s3 did was to reverse Barker and require a defendant found to have exposed a claimant to asbestos to pay full damages rather than a proportion.  It did not enshrine the Fairchild rule on causation into statute: at [70], [130]-[132]. However, following a detailed consideration of the main decisions on causation, they held that Fairchild applied in a single exposure case: at [94]-[106], [160]-[161].  Accordingly, the fact that only one source of exposure can be identified does not prevent a claimant establishing liability on the basis of showing that an exposure is material. The court also unanimously rejected an alternative argument that unless the risk of mesothelioma was doubled, the exposure could not be "material" for the purposes of Fairchild: at [107], [161]. The judgment of the Supreme Court is also of relevance to the law of causation in relation to other industrial diseases and more generally.  First, Lord Phillips gave guidance as to the role of the 'doubling of risk' principle in relation to different types of case: 90. For reasons that I have already explained, I see no scope for the application of the "doubles the risk" test in cases where two agents have operated cumulatively and simultaneously in causing the onset of a disease. In such a case the rule in Bonnington applies. Where the disease is indivisible, such as lung cancer, a defendant who has tortiously contributed to the cause of the disease will be liable in full. Where the disease is divisible, such as asbestosis, the tortfeasor will be liable in respect of the share of the disease for which he is responsible. 91. Where the initiation of the disease is dose related, and there have been consecutive exposures to an agent or agents that cause the disease, one innocent and one tortious, the position will depend upon which exposure came first in time. Where it was the tortious exposure, it is axiomatic that this will have contributed to causing the disease, even if it is not the sole cause. Where the innocent exposure came first, there may be an issue as to whether this was sufficient to trigger the disease or whether the subsequent, tortious, exposure contributed to the cause. I can see no reason in principle why the "doubles the risk" test should not be applied in such circumstances, but the court must be astute to see that the epidemiological evidence provides a really sound basis for determining the statistical probability of the cause or causes of the disease. .... 93. Where there are competing alternative, rather than cumulative, potential causes of a disease or injury, such as in Hotson, I can see no reason in principle why epidemiological evidence should not be used to show that one of the causes was more than twice as likely as all the others put together to have caused the disease or injury. What amounts to a "material" exposure has caused some difficulty for practitioners since Fairchild was decided.  Lord Phillips gave some useful guidance.  He pointed out the importance of comparing the exposure for which the defendant was responsible with the total exposure: at [108].  It remains a question of fact in all cases, but the test is not a high one.  At [111] he said: The reality is that, in the current state of knowledge about the disease, the only circumstances in which a court will be able to conclude that wrongful exposure of a mesothelioma victim to asbestos dust did not materially increase the victim’s risk of contracting the disease will be where that exposure was insignificant compared to the exposure from other sources. The court also made some general comments about the law of causation in personal injury cases.  Varying comments are made by the court as to epidemiological evidence generally: besides Lord Phillips' comments quoted above, see at [163], [190]-[192], [204]-[206], [221]-[222].  Effectively, the weight to be given to such evidence will continue to depend on its content and the context in which it is adduced. Some fairly strong comments were made by Lord Brown, in particular stating at [182] that the Fairchild principle should not be extended beyond mesothelioma cases.  They cannot, however, be regarded as part of the ratio of the decision. Overall, the decision is a welcome one to the practitioner; if the appellants had succeeded, then "single exposure" cases would have more frequently called for complex engineering and statistical evidence which can only ever give an approximate answer to the question posed.  Clearly it will be unwelcome to insurers.  There is, however, a crumb of comfort for defendants in the observations on the challenges to the factual inferences drawn by Nicol J in Willmore, which had partly succeeded in the Court of Appeal.  The inferences were described as "truly heroic" by Lady Hale at [176] and as having a "slender and speculative basis" by Lord Mance at [195].  Lord Rodger gave this warning at [162]: Especially having regard to the harrowing nature of the illness, judges, both at first instance and on appeal, must resist any temptation to give the claimant’s case an additional boost by taking a lax approach to the proof of the essential elements. That could only result in the balance struck by the Fairchild exception being distorted. This merely echoes the earlier decision in Brett v University of Reading [2007] EWCA Civ 88, para 26, where Maurice Kay LJ said: Fairchild exceptionally relieves a claimant who has proved exposure and breach of duty from having to prove causation. What it does not do is to relieve him from proving the other elements. As Lord Justice Sedley has demonstrated, the evidence in this case sufficiently established exposure in the course of employment at Reading University but it did not begin to establish a breach of duty on the part of the university. With the incidence of mesothelioma, sadly, not expected to peak in the UK for at least another decade, it is unlikely that the Sienkiewicz decision will be the last word on the subject of causation in mesothelioma claims.