piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

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.

"Oopsadaisy... I forgot": Late amendments and when simple prejudice is not enough

We are all familiar with this scenario.  A case has been in litigation for 12 months since issue and trial is imminent.  Try as you might, you cannot understand why the other side has advanced their case in a particular way, or overlooked an obvious cause of action or defence.  Then... a week before trial, or even at trial itself, the penny drops and a late application to amend is made.  The submission is always thus: "Whilst I appreciate it is inconvenient to the other side and I apologise to the court for the time that has been wasted, one has to apply the overriding objective.  The White Book notes cite Cobbold v Greenwich LBC August 9, 1999, CA, which says "amendments in general ought to be allowed".  To refuse the amendment would be a severe injustice to my client and the other side can be compensated in costs".  And there you have it, amendment granted.  Every one troops off home, to come back in six months time.  Of course the compensation in costs never meets the full extent of the outlay and it is extremely difficult to explain to the lay client why this should be allowed.  Whilst one has sympathy in cases where some new development has occurred that could not reasonably have been unearthed any earlier, for the most part these applications are necessary simply because the case has not been prepared properly.  I strongly suspect most advocates have read no more of Cobbold than the White Book cites and it is often relied upon to argue that demonstration of prejudice by the amending party is sufficient to succeed in an application to amend when it is, of course, only one factor.  In the recent case of Swain-Mason v Mills & Reeve [2011] EWCACiv 14, January 20, 2011 the Court of Appeal has revisited this issue.  Lloyd LJ, giving the unanimous decision of the court, referred to the case of Worldwide Corporation Ltd v GPT Ltd December 2 1998, CA, unrep, a pre CPR decision that was not before the court in Cobbold.  He cited with approval the judgment of Waller LJ where he said: "Where a party has had many months to consider how he wants to put his case and where it is not by virtue of some new factor appearing from some disclosure only recently made, why, one asks rhetorically, should he be entitled to cause inconvenience to other litigants?  The only answer which can be given and which, [counsel for the applicant] has suggested, applies in the instant case is that without the amendment  a serious injustice may be done because the new case is the only way the case can be argued, and it raises the true issue between the parties which justice requires should be decided.  We accept that at the end of the day a balance has to be struck.  The court is concerned with doing justice, but justice to all litigants, and thus where a last minute amendment is sought with the consequences indicated, the onus will be a heavy one on the amending party to show the strength of the new case and why justice both to him, his opponent and the other litigants requires him to be able to pursue it." In light of this and the case of Savings & Investment Bank Ltd v Fincken [2004] 1 WLR 667, CA, which had cited Worldwide with approval, Lloyd LJ concluded in Swain-Mason: "The approach set out in Cobbold seems to me to have been superseded in favour of one which is a good deal less relaxed about allowing late amendments" (para 78).  The practical effect of this is that parties need to be aware of the Swain-Mason decision to argue it against any opponents seeking to make late amendments.  If you find yourself on the other side of this coin, as we all do from time to time, then the guidance from Worldwide, cited in Swain-Mason should be the focus of your supporting evidence.  Although the cases make no mention of CPR 3.9 (relief from sanctions), it would seem that covering those sorts of issues would be a wise move. 

A Victory for Common Sense?

Tomasz Krysztof Kmiecic, was a carpenter. In June 2006 he tried to fix a leaky garage roof at a Mrs Isaacs’ substantial and valuable home when he fell from a ladder. He shattered his right elbow and injured his hip and thigh. He is now permanently disabled and can never work again as a carpenter and general builder.   The firm that contracted Mr Kmiecic (on £60 to £80) a day did not have insurance. So Mr Kmiecic, turned to Mrs Isaacs for compensation.   Mrs Isaacs was a very house-proud person. Her house had pristine white carpets. Rather than allow Mr Kmeicic to access the part of the roof he was working on and thus have to risk footprints on the carpet, Mrs Issacs gave Mr Kmeicic a ladder to use.   It was Mr Kmiecic’s case that Mrs Isaacs should be construed as his employer. It was argued that by giving a workman instructions to undertake work, a homeowner met the ‘control test’ under as prescribed under the relevant workplace safety regulations. Thus, it was argued, Mrs Isaacs by giving Mr Kmiecic a ladder to use rather than allowing him to walk through her house, breached a duty of care owed to Mr Kmeicic and/or under the Construction (Health, Safety and Welfare) Regulations 1996 and Work at Height Regulations 2005.   Mr Kmiecic’s claim was dismissed by Swift J following a hearing on 11/11/09 and 22/1/10 ([2010] EWHC 381 (QB)). Mr Kmiecic appealed.   On 22/2/11 in an as yet unreported judgment, the Court of Appeal dismissed Mr Kmeicic’s appeal and held that "Mr Kmiecic did not come under Mrs Isaacs' control merely because she forbade him access to her garage roof through her son's bedroom. ... The safety of temporary construction sites is better ensured by focusing the responsibility on employers and others who are equipped to assess how that would be best achieved. ... common sense had prevailed”. A victory for common sense and the homeowner, but not so for unfortunate Mr Kmiecic. This is especially so, when it appears, (as Swift J pointedly noted), that the ‘real culprit’ in this matter was Mr Kmiecic’s uninsured "cowboy" employer.

If he told you to jump off a cliff, would you jump off a cliff? Responsibility, liability and causation

It's the primary school teacher's well-rehearsed refrain.  It's also (almost) the facts of Johnson v Silverlink Trains Limited, heard in Coventry County Court on 23rd February 2011. Mrs Johnson was on her way back from seeing Robbie Williams, along with about 65,000 others. She rushed to Milton Keynes station where a throng of people was blocking the entrance. Mrs Johnson's case was that a station guard directed her under a cordon bearing the message 'Police- Do Not Cross'. As Mrs Johnson ducked under the cordon, she lost her balance and fell flat on her face, sustaining unpleasant injuries. The facts were in dispute and the judge actually found that Mrs Johnson had not been specifically directed to duck under the cordon. But even if she had been, the judge accepted the Defendant's argument that liability did not follow. Mrs Johnson was an adult, the risk of losing her balance going under the cordon was obvious, and at most the guard had permitted her, not obliged her to go under it. She freely and voluntarily decided to go under the cordon and that was the cause of the accident. Even if there was a breach of duty, there was a break in the chain of causation. What are the principles that determine whether a claimant’s actions are a ‘novus actus’ that breaks the chain of causation? Voluntary or Deliberate Act A key point is whether the claimant is properly in control of his actions or not. So where a claimant responds with a panic or reflex reaction to an emergency brought about by the defendant, he is not properly in control of himself precisely because of the emergency the defendant has caused. In such a case the claimant’s actions are unlikely to break the chain of causation. Corr v IBC Vehicles Ltd [2008] 2 WLR 299 was in this category. There, the claimant’s husband had committed suicide after suffering depression and post-traumatic stress disorder following an accident at work for which the defendant accepted liability. The question was whether the suicide broke the chain of causation. On the facts, the House of Lords held that the suicide, though a deliberate, conscious act, was a direct result of depressive illness, which impaired the deceased making reasoned and informed judgments about his future. The House of Lords contrasted this to a Canadian case where the court found that the deceased had made a conscious decision to end her own life, there being no evidence of disabling mental illness leading to incapacity in her facility of volition. So, unsurprisingly, when the court found that the claimant in Wilson v Coulson [2002] PIQR P22 QBD was, despite suffering brain damage in a road accident, still able to take a voluntary, deliberate and informed decision to take heroin, the defendant was not liable for the consequences of this. Reasonable The more unreasonable the claimant’s conduct is, the more likely it is to break the chain of causation. This comes from the House of Lords’ decision in McKew v Holland and Hannen and Cubitts (Scotland) Ltd [1969] 3 All ER 1621. The claimant in that case had injured his leg which was left liable to give way at any moment. He descended steep stairs with no handrail. The leg gave way and with no handrail or adult support he fell, sustaining serious injuries. The House of Lords considered the claimant had acted unreasonably: the weakness in his leg meant he should be careful. He was not and this failure broke the chain of causation. In rescue cases the rescuer’s conduct is very unlikely to be considered unreasonable, even when the claimant puts his own life or limb at risk. This is because “the cry for distress is a summons for relief”. Similar considerations apply where the claimant is dealing with an emergency. In Sayers v Harlow UDC (1958) 1 WLR 623 the claimant found herself locked in a public lavatory. She shouted and banged the door but no-one came to help. She tried to escape by climbing out and in so-doing placed her foot onto the toilet roll – which, as it was designed to do, rotated, causing her to fall. The defendant argued this was wholly unreasonable and won at first instance. The Court of Appeal disagreed: given the situation the claimant found herself by reason of the defendant’s default, trying to escape was reasonable and the accidental placing of her foot on the toilet roll was a misjudgment rather than something so unreasonable as to be a novus actus. Some caution is needed using “unreasonableness” as the touchstone. In the more recent case of Spencer v Wincanton Holdings [2010] PIQR P8 on similar facts to McKew but where the claimant succeeded Sedley LJ doubted “unreasonableness” was helpful, preferring to consider a formulation based on “fairness”. Value Judgment / Fairness Following on from Spencer, in Corr the House of Lords brought these threads together in terms of fairness. This requires a value judgment of the claimant’s actions looking at the facts in the round. So where an act is a voluntary, informed decision it may well break the chain of causation. Where an act is unreasonable, it may break the chain of causation. But an unreasonable act that is not truly voluntary or informed (such as suicide where the balance of the deceased’s mind has been disturbed by the defendant’s tort) will not. It’s important not to forget the exception to the rule too. In the particular case of police guarding a person in custody who had been identified as a suicide risk, the police are under a duty to ‘protect the person from himself’ as set out by the House of Lords’ decision in Reeves v Commissioner of Police for the Metropolis (2000) 1 AC 330. This exception comes about because of the particular and specific nature of the duty in question and as such is likely to be confined to custody cases.      

A ski helmet? – Not on your nelly!

 The Mayor of London, Boris Johnson has recently expounded: “goggles, yet; a woolly hat, yet; but a helmet – not on your nelly”, in a recent article for the Telegraph. He was of course commenting on what he somewhat characteristically termed the “elf and safety madness that is sweeping our culture”, in relation to the growing trend for skiers to wear helmets. However he raises some interesting questions for the PI practitioner considering the extent of an injured party’s contributory negligence. Whilst motorcycle crash helmets are obligatory, cycle helmets, skiing helmets and indeed other forms or protective equipment are not.   Is it thus reasonable for courts to hold that an injured party negligently contributed to his or her injury by exercising a free choice not to wear a cycle/ski helmet, even if such apparel is ‘recommended’ or ‘best practice’? Should defendants in such cases simply have to take their victims as they find them?   The case of Smith v Finch [2009] EWCA 53 applied Lord Denning’s reasoning in Froom & Ors. v Butcher [1976] QB 286, the well known case dealing with contributory negligence and a failure to wear a seatbelt, which were not obligatory at the time, but were ‘recommended’. Griffith Williams J in Smith held a cyclist claimant who was run down by a motorcyclist was at fault for failing to wear a helmet. Cycling helmets may be one thing, but what about cycling gloves; squash goggles; motorcycle leathers; rugby scrummage caps; or car seats for short children over 12?   The questions courts and practitioners will routinely have to ask themselves include: ·         When does it become reasonable to expect a party to exercise a choice to wear purely optional safety equipment? ·         Where is the point where a free decision not to wear such equipment becomes capable as sounding in contributory negligence? ·         Is it, as Boris’ article suggests, when it is not a case of everyone else looking odd by wearing such equipment, but when it is you, for not wearing it?   Despite the judgment in Smith, these questions have yet to be fully answered.   Boris’ article is available at: www.telegraph.co.uk/comment/columnists/borisjohnson/7289457/Wear-ski-helmets-by-all-means-but-Im-sticking-to-a-woolly-hat.html

Claims and Counterclaims: RTA uplifts and settling on the day of trial

Slade J handed down judgment this week in an appeal concerning the question of whether the claimant's legal representatives were entitled to a 100% uplift on their costs, in accordance with the fixed uplift regime for conditional fee agreements in road traffic cases, where the case settled on the day of trial, but before the trial commenced.  She also addressed the vexed question of whether the difference in wording between CPR 45.16 and 45.17 means that solicitor's and counsel's uplifts should be treated differently. In Amin (1) Hussain (2) v Mullings (1) Royal Sun Alliance (2) [2011] EWHC 278 (QB) the facts were typical.  The first claimant (A) was involved in an accident with the first defendant (M) when driving the second claimant's car (H).  A and M blamed each other for the accident.  A brought a claim against M and M counter claimed.  One month before trial the quantum of A's claim was agreed, subject to liability.  By the time the matter was heard by the Recorder on the day of trial the parties had agreed to a 50:50 division of liability and all of M's counterclaim was agreed save for the amount he was entitled to for hire of an alternative vehicle, the only issue which the Recorder was asked to determine.  The Recorder ordered each party to pay the costs of the other of pursuing their claim and awarded each party a 100% uplift on the ground that both the claim and the counterclaim had concluded "at trial" within the meaning of CPR 45.15 and therefore both solicitor and counsel for A were entitled to 100% uplifts on their costs under CPR 45.16 and 45.17.  He gave judgment that "at trial" must include the date or time the trial is fixed to take place and include negotiations that take place on the day of trial to settle the claim or narrow the issues before the hearing commences.  It was submitted on behalf of M and M's insurer that the Recorder had erred in failing to distinguish between the hearing of the counterclaim, which related to the trial of M's claim and A's claim, which was wholly compromised before the hearinng commenced. Slade J held that the Recorder erred in concluding that "at trial" is not defined in CPR 45.  She said "it is clear from CPR 45.15(6)(b) that "at trial" means at a contested hearing.  As is clear from CPR 45.17(1)(a) and (b)(i) the rules recognise a distinction between a trial and the date fixed for the commencement of the trial.  Further, the rules recognise a distinction between the conclusion of a claim after and before a trial has commenced.  Settlement before a trial commences and conclusion by settlement after a trial commencese could both occur on the date fixed for the trial.  The trigger for entitlement to a 100% uplift in fees is  not a settlement on a particular date but a settlement or conclusion after a trial, defined as a hearing, has commenced." Slade J was went on to consider whether there should be any difference in the way solicitor's and counsel's uplifts should be approached arising out of differences in the wording of CPR 45.16 and CPR 45.17.  She considered two conflicting decisions concerning counsel's uplift under CPR 45.17 when a case settles on the day of trial but before the hearing commences.  She approved the decision in Sitapuria v Khan, an unreported decisoin of the Liverpool County Court on 10 December 2007 and declined to follow the decision in Dahele v Thomas Bates & Son Ltd an unreported decision of the Supreme Court Costs Office of April 17 2007.  She held that the meaning of CPR r.45.16 was clear. Its language was not to be given a different meaning to accord with a construction of r.45.17 in order to deal with a perceived lacuna in r.45.17 in relation to the uplift in counsel's fees, as had been done in Dahele.   This is an important decision to be aware of because is addresses two commonly encountered issues.  First, Slade J grapples with the knotty problem of uplifts for both parties where there is a claim and counterclaim but only part of one of the claims remains outstanding at the commencement of the hearing.  Secondly, she considers the difficulty of the competing decisions in Sitapuria and Dahele, both first instance decisions that are no more than persuasive and provides helpful guidance on the interpretation of CPR r 45.16(1) and CPR r 45.17(1), bearing in mind the differences in their wording.  The correct uplift to solicitor's fees where the claim settled before commmencement of the hearing, regardless of whether it was on the day of trial, was 12.5 per cent.  She then went on to say that the language of r.45.17(1)(a) was the same as that of r.45.16(1)(a).  There was no reason to distinguish it from the clear meaning of that provision.  If there were any doubt about the construction of r.45.17(1)(a), in the absence of any basis for ascribing a different meaning to the words "the claim concludes at trial", they should be construed consistently with their clear meaning in r.45.16(1)(a).  Although the proper construction of r.45.17(1) as it applied to the conclusion of claims on the day fixed for trial but before trial commenced was not immediately apparent, there was no lacuna in the rule.  On its proper construction such a settlement gave rise to an entitlement to an uplift in counsel's fees of 50 per cent in a fast track road traffic claim.  

Risk assessments in practice - Uren v MOD (Feb 2011)

Employers doubtless hope that their risk assessments will sit on their shelves gathering dust and will never need to be dug out (except, of course, to be updated) as part of a disclosure exercise. It is obvious that the purpose of the assessment is to encourage employers to think of risks to their employees and to get them to take steps to reduce those risks. But how far does an employer have to go when risk assessing? Can an employer delegate the exercise of carrying out a risk assessment? What is the point anyway of the risk assessment in personal injury litigation?   These questions were all considered in the recent case of Uren v Corporate Leisure (UK) Ltd and MOD (Unreported, 2nd February 2011).  Mr. Uren was employed by the MOD and was taking part in a game at a 'Health and Fun Day' (not in Afghanistan but RAF High Wycombe). The game involved retrieving plastic fruit from an inflatable pool with sides which were cylindrical and 1.04 metres high and with water 18 inches deep. Tragically Mr Uren dived into the pool head first and was rendered tetraplegic as a result of breaking his neck. The issue was whether the defendants were in breach of their common law duty of care. Accordingly the questions for the court were the magnitude of the risk and whether such risk could reasonably be reduced or eliminated. The defendants succeeded at trial but the claimant's appeal was allowed on the basis that the judge failed to give sufficient reasons for preferring the defendants' expert.   The Court of Appeal in Uren made some useful comments on risk assessments. Smith L.J. commented that it was obvious that the failure to carry out a proper risk assessment could never be the direct cause of an injury. It may be indirectly causative where it can be shown that some action could reasonably have been taken which would have prevented the injury had been a proper assessment been carried out. The role of the risk assessment at trial is therefore very often bound up with assessing the magnitude of the risk of injury as well as what steps could have been taken to prevent it.   One of the difficulties with those carrying out risk assessments is how far the assessor needs to go. There was some discussion in the case about the impossibility of considering every variable in a given activity. Smith L.J. commented that formal risk assessments are probably more effective in relation to static conditions or activities which are often repeated in a fairly routine way but they may be a less effective tool where a lot of variables may come into play. She expressed sympathy with the recommendation to 'keep it simple'. Defendants may well want to use this passage when being criticised for a simple risk assessment which does not cover every variable. Equally, when faced with a poor generic assessment (created simply to tick the box) claimants will want to draw attention to Smith L.J.'s comment that risk assessments are an 'opportunity for intelligent and well-informed appraisal of risk'.   On the question of whether the risk assessment can be delegated, Smith L.J. reiterated that it could not. However she said that where an employer used a contractor for an activity and satisfied himself that the contractor had carried out a thorough risk assessment, that might lead to the conclusion that the risk assessment carried out by the employer was suitable and sufficient even though not as detailed as would otherwise be required. In the case of Uren the two defendants had not even conferred and so the court had little difficulty in saying that the MOD could not properly rely on the contractor's assessment.