piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

"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.    

Large landmark settlement for former prison officer in complex claim against MoJ.

Heaven v Ministry of Justice    The Claimant, an ex-prison officer, brought proceedings against the MoJ for severe psychiatric injuries which he suffered during the course of his employment at HMP Grendon, a category B prison. The Claimant was stationed on a wing that housed inmates convicted of serious sexual offences. As part of their rehabilitation, inmates underwent “therapeutic counselling” in which they were encouraged to speak openly about their offences.   The counselling sessions were held by prison officers and the Claimant was required as part of his employment to sit in the sessions and listen to the inmates talk in the most graphic terms about their offences. He had no training in counselling.  He struggled mentally to cope with the sessions and was eventually dismissed on grounds of ill health.   The MoJ admitted that the Claimant suffered an injury, namely PTSD and depression, but denied breach of duty. The issues in the claim were complex. Recently the MoJ settled the claim for a large undisclosed amount. The claim has been widely publicised in the national media. This is one of many more such cases to come.  

Dealing with the discount rate review

A settlement award of £7.85 million (capitalised current value) was recently agreed in the case of TBE v Royal Berkshire NHS Trust.  The award comprises a lump sum payment of £3,660,700 plus annual payments index linked to ASHE 6115 of £140,000 to age 19 and £225,000 from age 19 for life.    The case involved a 10 year-old claimant, TBE (name abbreviated to protect his and his family's privacy), who has severe cerebral palsy caused by medical negligence during his birth. The award of damages will be overseen by the Court of Protection and will be used to provide TBE with the 24 hour care, equipment, therapies and accommodation he will need for the rest of his life.    The order giving effect to the compromise of TBE’s claim included a mechanism for reassessing the multipliers used in calculating his claims for future losses at the conclusion of the review of the discount rate announced by the Lord Chancellor on 9 November 2010. The discount rate which was set at 2.5% by the Damages (Personal Injury) Order 2001 was based on yields generated by index-linked government stock (ILGS). However the rate has not been varied since 2001 and has become increasingly unrealistic in that a 2.5% per year real and net discount rate has not been achieved since the rate was first set.   Accordingly it was necessary for the parties to agree and for the order to include the matters which will in due course be reassessed. In particular, it was necessary to define (1) the “future life sum” (LS)  (2)  the full life multiplier (LM) representing a term certain from Table 28  (3) the “future earnings sum” (ES”) and (4) the earnings multiplier again representing a term certain from Table 28. The intention is that once the Lord Chancellor has concluded his review and determined any new discount rate, the new full life multiplier (“NLM”) and the new earnings multiplier (“NEM”) will be recalculated by reference to Table 28 using that new discount rate.   To arrive at the LS it is necessary to deduct (1) general damages and interest (2) past losses and interest (3) capital expenditure and other costs in the first year (4) CRU (5) any adaptation costs and other costs associated with the immediate purchase of a property.   The advantage to a Claimant of adjourning the issue of the discount rate is that as a result of the review the rate may be decreased resulting in a higher multiplier for future loss. However, careful consideration needs to be given as to whether this is appropriate. For example, the multiplicand under the principles in Roberts -v- Johnstone is also calculated by reference to the discount rate. It follows that a reduction in the discount rate, whilst increasing the multiplier, will decrease the multiplicand to which that multiplier is applied.  There is also the risk that the discount rate may be increased rather than decreased. In the present economic climate this seems unlikely. However, the economy, both in this country and abroad, may look very different in say 18 months or 2 years. Clients will therefore need to be given careful financial advice before agreeing the final form of order and legal advisers would be well advised to record both what that advice is and the fact that it has been given.       

RTA Insurer not liable for the 'same damage' as its insured

In Jubilee Motors Syndicate v Volvo Truck & Bus (Southern) Limited (2010) Jubilee, a road traffic insurer within the meaning of the Road Traffic Act 1988, had been ordered to pay damages following the settlement of a claim against its insured (Volvo) by an injured third party. Jubilee thereafter instigated contribution proceedings against its insured under the Civil Liabiliy (Contribution) Act 1978. Its argument was two-fold. First, it alleged that it was a "person liable in respect of the same damage" as its insured under section 1(1) of the 1978 Act. Alternatively, Jubilee  relied upon section 1(4) of the Act, which provided that "a person who has made or agreed to make any payment in bona fide settlement or compromise of any claim made against him in respect of any damage (including a payment into court which has been accepted) shall be entitled to recover contribution in accordance with this section without regard to whether or not he himself is or ever was liable in respect of the damage" Striking out the contribution claim, the Court held that the terms "same damage" and "in respect of" in s.1(1) of the 1978 Act had to be construed narrowly, in accordance with established case-law. Unlike any potential liability that Volvo might have owed the injured third party directly (i.e as the tortfeasor), Jubilee's liability was contingent on its contractual obligations under the policy of insurance. The 1988 Act did not render Jubilee liable for the third party's personal injuries as such, but rather to satisfy a judgment resulting from the third party's suffering of those personal injuries, as caused by Volvo. Jubilee had never caused the third party any loss or injury. It was never directly, or vicariously, liable for the third party's injuries and could not be regarded as a  'wrongdoer' of any kind.  The claim under s.1(4) of the 1978 Act was also struck out. That section could not be read as having a meaning different from, or extending beyond, the court's definition of "same damage" in s.1(1) of the 1978 Act. Both sections had to be read together. Do you agree with the Court's analysis in this case? Should it matter that Jubilee's liability to pay the agreed settlement with Volvo arose either from the Statutory framework under the Road Traffic Act 1988, or under the policy of insurance?