the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

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.

Camel Accident Gives Holiday Consumers the Hump!

  A cantankerous, even-toed ungulate was the unlikely subject of the latest in a line of cases examining the tortious duty of care owed by tour operators for accidents during holiday excursions.       Hendry and another v Kuoni Travel Ltd (Guildford County Court, HHJ Reid QC, 10 – 11 November and 16 December 2011) concerned the provision of a “Camel Safari” excursion during a package holiday to Rajasthan, India. The plan was simple: the Claimants were to ride on the back of a Bactrian (two-humped) camel, setting off from their hotel. The camel had other ideas. Before the claimants were out of the hotel gates, it began “making sidesteps in a very jaunty manner” causing the Claimants to lose their balance and fall off, each sustaining serious injury. The Claimants were accompanied on the safari by the Defendant tour operator’s local representative who provided instructions in English (the camel handlers or raikas spoke no English). The representative had no particular knowledge of camel riding and, indeed, this was his first (and only) time assisting with the excursion.   The excursion was described in the Defendant tour operator’s brochure as an “optional experience” “available locally at extra cost”. The Defendant’s Booking Conditions provided that “the experience will be supervised and all reasonable precautions will be taken to ensure that you and your party are safe. We will only accept responsibility for personal injury where it is caused by our negligence or the negligence of our suppliers”. The Claimants maintained in evidence that they made no separate booking for the excursion and were not asked at any stage for payment and so the excursion must have formed part of the package of services provide pursuant to the holiday contract, to which the Package Travel, Package Holidays and Package Tours Regulations 1992 applied. The court held that the excursion had been booked separately and so was outside the scope of the 1992 Regulations. The Claimant’s alternative case was that they had made a separate contract for the excursion which was governed by the terms of the Defendant’s Booking Conditions; this argument was also rejected by the Judge.   This was not, however, the end of the road for the Claimants. Following Parker v TUI [2009] EWCA Civ 1261, they argued – in the further alternative – that the Defendant, in providing a local representative to accompany the excursion and to give instructions beforehand, had assumed responsibility to the Claimants for the reasonable safety of the excursion and, accordingly, owed them a tortious duty of care. It was held that the content of this common law, tortious duty was defined by local standards in accordance with the Court of Appeal’s guidance in Gouldbourn v Balkan Holidays Ltd [2010] EWCA Civ 372 (and other case law subsequent to Wilson v Best Travel Ltd [1993] 1 All ER 353 (QBD). Unsurprisingly, there were no specific statutes, rules or regulations to govern the provision of camel rides and safaris in India. Instead, there was local customary practice and both parties relied on expert evidence of what such practice required. The saddle on the camel’s back consisted of a seat with a hook-shaped “pommel” at the front and was attached by a rope running around the camel’s belly with a carpet and quilt placed loosely over the top. There were no stirrups or rope loops along the side of the camel that either rider could hold for stability. The reins were held at the front by the camel handler. It was held that the failure to provide stirrups constituted a breach of local customary practices. The court went on “so far as the second alleged breach of duty is concerned, in my judgment it is made out. There is simply no evidence that the defendant took any steps whatsoever to establish that the excursion provider was competent”. Judgment for the Claimants.   This case underlines the significance attached to the attendance on the excursion by a local representative in the context of the tortious route to liability for excursions that go wrong.   [Case note prepared with the assistance of Thomas Collins, Pupil Barrister.]


In an earlier post on piBlawg – “An End to Expert Shopping” – Thomas Crockett discussed the likely impact of Edwards-Tubb v JD Wetherspoon PLC [2011] EWCA Civ 136.    In Edwards-Tubb it was held that a claimant who obtains a medical report from an expert (A), but chooses, for whatever reason, not to rely on it and applies, instead, for permission to rely on another expert in the same field (B), the court has a discretionary power under CPR 35.4 to require him to disclose A’s report as a condition for the grant of permission to rely on B (see Hughes LJ, at paragraph 31 of the judgment).     In the very recent case of Burnett v Discover the World (14.10.11), Teare J, sitting in the Admiralty Court, had to consider the meaning of “in the same field”. In Burnett, A was a neurologist and B was a neuropsychologist. The Claimant had suffered a head injury. He disclosed only the report of B, although stated in correspondence that he also had a report from A. The Defendant wanted to see A’s report. The Claimant opposed this on the grounds that A’s report was privileged and that A and B worked in different fields of medicine. Accordingly, it was argued that the disclosure sought by the Defendant fell outside the scope of the approach taken by the Court of Appeal in Edwards-Tubb.   On the face of it, the two experts worked in different medical fields: neurology is generally concerned with objective nervous system pathology, particularly of the brain. By contrast, neuropsychology is principally concerned with psychological conditions which may or may not originate in the neuropathology. It was submitted for the claimant that B’s report had only been commissioned on A’s express recommendation (presumably on the basis that B would consider matters that were outside the scope of A’s expertise). Teare J held that “the same field” (where used by the Court of Appeal in Edwards-Tubb) required a wide construction. The court was concerned with examining the nature and extent of the injuries alleged and the symptoms attributable to the same. Where A and B are attempting to investigate substantially the same symptoms, both reports will be of assistance to the court, notwithstanding that the experts have subtly different expertise or methodologies. Requiring a litigant to disclose an earlier expert’s report is the price for the permission to rely on another. The choice, therefore, lies with the litigant. As such, the approach taken in Edwards-Tubb contemplates the waiver of privilege as to the earlier report as the condition for the grant of the Court’s permission to rely on the subsequent expert; it maximises the information available to the court and discourages “expert shopping”. It is clear that in many cases litigants have attempted to obtain more favourable evidence yet side step the rule in Edwards-Tubb by approaching experts with similar expertise, but from slightly different scientific/medical disciplines. This ruling may close off this escape route. It suggests that the court will look to the symptoms in question in order to see whether A and B are in, in substance “in the same field”.   Case note prepared with the assistance of Thomas Collins, Pupil Barrister.  


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.