the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Risk versus Social Benefit - Barnes v Scout Association

Barnes v Scout Association [2010] EWCA Civ 1476     Mark Barnes was a strapping 13 year old. He played rugby for his county. In Ward LJ’s words “he was the least likely boy to need wrapping in cotton wool”. But Mark was injured whilst playing a game called “Objects in the Dark” with his local Scout troop. This was rather like musical chairs. Instead of the music stopping, the lights would be turned out and everyone had to run into the centre of the room and grab a block. The Scout troop had played this game for many years and continued to play it after the accident.   The Defendant contended that there was a real social value in Scouts playing games like this. Whilst there were risks associated with the game, these should be balanced against the social good. The Scouts contended (again in Ward LJ's words) that to award compensation would be an example of an overprotective nanny state robbing youth of fun simply because there was some risk involved in the exercise.   The Claimant succeeded at first instance, and the Scout Association appealed.   The Court of Appeal, by a majority, upheld the judge’s decision. The majority view was that the social utility of Scouting would clearly not make all activities permissible, no matter how dangerous. The additional danger of playing this game in the dark was not warranted by its social utility. The judge had been correct in his balance of the factors in this case.   But Jackson LJ disagreed, in a very strong dissenting judgment. Noting that playing in the dark increased the risks, he continued that this did not outweigh the social benefits of the activity. Children and teenagers have always played such games. This was structured and properly supervised. It was much safer than many games which children might play, if left to their own devices. Jackson LJ considered it was the sort of activity which attracts young people to join or remain in the scouts.   Although judgment for the Claimant was upheld, Jackson LJ’s dissent is a powerful one. Defendants can take some solace from this analysis which provides a useful point of reference for other organisations facing claims following accidents during games or socially useful activities. For claimants and defendants this is a very useful example of the "public benefit" principle set out in Tomlinson v Congleton Borough Council (2004) 1 AC 46.

(Attempted) Murder on the Dancefloor

Everett & Another v Comojo UK Ltd t/a the Metropolitan & Others: Liability of nightclub for assault   Judgment was handed down in the Court of Appeal on 18 January 2011 in the above case.  The case concerned an assault in a upmarket private members nightclub.  A waitress working in the club was allegedly assaulted by two patrons.  Another patron, and regular guest of the club, was aggrieved on behalf of the waitresses  and (as one does) sent for his driver who, on arrival, attacked the men in question with a large knife and very nearly killed both of them.  The driver was sentenced to life imprisonment for the assaults and the badly injured men sued the nightclub for failing to prevent the assault.  The key question was whether or not the nightclub owed any duty in relation to the acts of a third party and, if so, whether the club was in breach of that duty on the particular facts.    LJ Janet Smith in her leading judgment in the Court of Appeal decided that the nightclub did owe a duty in relation to the acts of third parties but that, whilst it had a duty to take reasonable care, on the facts of this case there was no breach of duty as there was little the nightclub could do in the circumstances and it was not foreseeable that there would be an assault in an upmarket nightclub such as this one.  This judgment is worrying for nightclubs and hotels as it means that, depending on the nature of the establishment, there may be cases in the future where such establishments will be held liable for the acts of third parties on their premises.  While the standard to be applied is realistic there is still undoubtedly a duty owed by clubs and hotels and they will have to decide how they need to behave in order to respect that duty.      

No jury trial for personal injuries caused by police

According to the authors of both Clerk and Lindsell on Torts and Halsbury’s Laws of England, the tort of false imprisonment is committed whenever a person is unlawfully subjected to a total restraint of movement, no matter how short the period of restraint. Does that mean that if a claimant is restrained during the period of an assault, he can claim for damages for false imprisonment (and so have his claim decided by a jury) as well as for the injuries themselves?   No, held Master Fontaine in the case of Bowden v Chief Constable of Hampshire Constabulary (unreported: QBD, 9th December 2010). In Bowden the facts as the Claimant alleged them to be were that he was assaulted by police officers who set their dog on him and then hit him with batons. The allegation was that the dog had wrestled the Claimant to the ground and that it had prevented his escape by biting him for three minutes until the officers eventually called it off. The Claimant argued that the three minutes during which he was restrained on the ground by the dog amounted to false imprisonment as well as assault, and that he was entitled to have his claim for damages decided by a jury.   Master Fontaine granted summary judgment to the Defendant on the allegation of false imprisonment. She noted that the statements made in the text books (that any period of unlawful restraint is false imprisonment) were not supported by any reported cases anywhere in the UK or Commonwealth. There had been no manifestation by the police of any intention to arrest or detain the claimant and so if he was detained at all, it was as a consequence of an assault and did not amount to the tort of false imprisonment.

Uninsured Drivers & Accidents Abroad : Damages & Applicable Law

Jacobs v MIB [2010] EWCA Civ 1208   The appellant, (J) was a resident of the United Kingdom; he was injured when he was struck by a car driven by an uninsured driver in Spain. J appealed against a decision that the respondent Motor Insurers' Bureau (M) was obliged to pay him compensation in accordance with Spanish law.   J sought to recover compensation from M under the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003, but M argued that the amount of compensation payable was to be assessed in accordance with Spanish law.   In proceedings brought to determine whether M was obliged to compensate J, the judge concluded that reg.13(2)(b) required the claim to be determined in accordance with English law. However, he held that the Regulation was inconsistent with the provisions of Regulation 864/2007 art.4(1), and that compensation was therefore to be assessed in accordance with Spanish law, being the law of the place where the accident occurred.   The court was required to determine whether M was obliged to pay compensation to J assessed in accordance with Spanish law or English law. HELD: Directive 2000/26, which established the compensation scheme, did not state whether questions of liability and compensation were to be determined by reference to the law of the country in which the accident occurred (see §21 of judgment). The 2003 Regulations were also silent on that point (§22). Regulation 12(4)(a) obliged M to indemnify an injured person who lived in England if he could satisfy it that the insured driver was liable to him. Since the accident had to have taken place abroad, the need to demonstrate liability on the part of the driver required the court to consider what law governed the issue. In most cases art.4(1) of the 2007 Regulation would apply and the issue would be determined by reference to the law of the country in which the accident had occurred.   However, it was less easy to identify the law governing the assessment of damages because of the reference in reg.12(4)(b) to the laws applying in England. References in legislation to the law of a particular country usually referred to its general rules of law rather than its rules relating to the conflicts of law, and the inclusion of the reference in reg.12(4)(b) obliged M to pay compensation assessed in accordance with English law (§24-25, 27, 29). Regulation 13 said nothing about how compensation was to be assessed; the answer lay in the words "shall compensate the injured party in accordance with the provisions of Article 1 of the [Second Directive]".   Directive 84/5 art.1(4) obliged Member States to set up a body to provide compensation for personal injuries caused by uninsured drivers: it was implicit in the scheme that the victim had to establish that the driver was liable, but whether that required proof of fault depended on the law of the country in which the accident occurred. It followed that the obligation imposed on M by reg.13(2)(b) carried with it the implicit proviso that the injured party had to show that the driver was liable as determined by reference to the applicable law identified in accordance with the appropriate conflict of laws rules, usually leading to the application of the law of the country in which the accident occurred (§31-32).   However, different systems of law could govern different questions raised by the same claim, and under English conflict of laws rules the assessment of damages gave rise to a separate issue (§33), Macmillan Inc v Bishopsgate Investment Trust Plc (No3) (1996) 1 WLR 387 CA (Civ Div) applied. The mechanism by which M's obligation to compensate under reg.13 was established was to treat the accident as having occurred in Great Britain. In the absence of any provision limiting its scope, it was difficult to see why it should not also affect the principles governing the assessment of damages, particularly in the absence at the time of complete harmonisation throughout the EEA of the conflicts of laws rules governing that issue (§35). Having regard to the language of reg.13(2)(b), compensation was to be assessed on the basis that the accident occurred in Great Britain. That conclusion had the incidental merit of ensuring that the measure of compensation recoverable under reg.13 was likely to be broadly the same as that recoverable under reg.12 (§37).  

Limitation Periods and Abuse of Process

The Court of Appeal has recently attempted to bring some clarity to this area of the law which had become extremely complex.   The Historical Perspective The House of Lords in Horton -v- Sadler (2006) UKHL 27, overturned Walkley -v- Precision Forgings Ltd (1979) 1 W.L.R. 606, and held that s.33 of the Limitation Act 1980 gave a wide and unfettered discretion in relation to the second action to disapply the time limit of three years contained in s.11 of the Act, having regard to the degree to which the parties would be prejudiced and taking into account all circumstances. In Janov v Morris (1981) 1 W.L.R. 1389, the court found that delay in prosecuting an action could amount to an abuse where the default was "intentional and contumelious" or the delay had been "inordinate and inexcusable". This was not followed in Gardner v Southwark London Borough Council (No.2) (1996) 1 W.L.R. 561 (CA), which held: "...a plaintiff who for reasons of negligence, dilatoriness, lethargy or mistake fails to apply for a hearing date before the guillotine date and so suffers the consequences of Ord. 17, r. 11(9), cannot be treated as if he were guilty of wilful or contumacious disobedience" (my emphasis). In Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd (1998) 1 W.L.R. 1426 (CA), Lord Woolf held a "wholesale disregard of the rules is an abuse of process...". This found favour with Chadwick LJ in Securum Finance Ltd v Ashton (2001) Ch. 291 (CA), who held: "whether the claimant's wish to have a 'second bite of the cherry' outweighs the need to allot its own limited resources to other cases. The courts should now follow the guidance given by this court in the Arbuthnot Latham case. " Aldi Stores Ltd -v- WSP Group Plc (2007) EWCA Civ 1260; and Stuart -v- Goldberg Linde (2008) EWCA Civ 2 held that, although the decision whether to strike out a claim on the ground of abuse is ultimately a matter for the court's discretion, the finding of abuse was a judgment which was either right or wrong, albeit it involved an assessment of a large number of factors and might for that reason be hard for an appellate court to dislodge. The CPR introduced a stricter regime for compliance with court orders. May LJ in Vinos -v- Marks & Spencer Plc (2001) 3 All E.R. 784 (CA) and Godwin -v- Swindon BC (2001) EWCA 1478  held that there is nothing unjust in a system of limitation and parties who do not issue in time risk having their cases struck out.   The Present Case In Aktas -v- Adepta; Dixie -v- British Polythene Industries Plc [2010] EWCA Civ. 1170 (22/10/2010) the Court of Appeal (Rix LJ, Longmore LJ, Aikens LJ) specifically considered the question of when a failure to serve proceedings within the limitation period could by itself amount to an abuse of process. The court could find nothing to suggest that failure to serve in time is tantamount to abuse, nor in various other cases put forward by the defendants. Rix LJ, held that, even in this post-Horton era, the abuse of process point could succeed. He held: ·         A mere negligent failure to serve a claim form in time was not an abuse of process; it had never been held to be in any of the many cases cited to the court, nor in Rix LJ’s judgment should it be described as such, nor as being tantamount to such; ·         All the cases made clear that for a matter to be an abuse of process, something more than a single negligent oversight in timely service was required; the various expressions used are: inordinate and inexcusable delay / intentional and contumelious default /  wholesale disregard of the rules; ·         Abuse could not be assumed for failure to comply simply because the rules of service are strict; ·         Nor was misuse of court resources enough to turn such behaviour into an abuse; ·         Lateness in service in breach of the rules did not by itself amount to an abuse of process; ·         On the facts of the instant case, the breach did not prevent the court from exercising its s.33 discretion to allow the action to proceed.

No Human Rights Act duties in Fatal Accidents Act claims

In Morgan v Ministry of Justice [2010] EWHC 2248 QB the High Court has rejected an attempt to introduce Human Rights Act type duties into Fatal Accidents Act claims. The deceased claimant committed suicide whilst receiving treatment in the hospital wing of prison. The hospital wing was run by the NHS and not the Prison Service. The deceased’s estate brought a claim against the Prison Service under the Fatal Accidents Act. The estate argued that the Prison Service was subject to a non-delegable duty under the Human Rights Act to ensure that, whilst he was a prisoner of the State, reasonable care would be taken in respect of all aspects of the arrangements that were made for the deceased’s welfare. By that means, argued the estate, the Prison Service was liable for the NHS’ failure to carry out adequate assessments of the risk that the deceased would commit suicide. It was argued that it did not matter whether the medical staff were the servants or agents of the Prison Service: the non-delegable duty contended for made that issue irrelevant.  The High Court held that the Prison Service did not owe a duty of care either at common law or under the Human Rights Act in respect of the actions of NHS staff. It also held that the Crown Proceedings Act 1947 precluded claims against the Crown in respect of the actions of non-Crown bodies, and that the NHS was a non-Crown body.  

How quickly should an emergency caesarian section be performed? Goncalves v Newham University Hospital Trust

The cerebral palsy case of Goncalves v. Newham University Hospital Trust (QBD, Mr. John Leighton Williams Q.C. sitting as a Deputy High Court Judge 24.11.10) discusses the important question of how quickly an emergency caesarean section should be performed. The Claimant, Macmillan, a second twin, was born at 19.47 hrs on 19.01.96 at Newham University Hospital and suffers from teraplegic dyskinetic cerebral palsy as a result of oxygen deprivation shortly before, during and after his birth.  Macmillan’s twin brother was born in a healthy condition at 19.10 hrs.  The case was complicated by the hospital’s loss of the mother’s clinical records, the obstetric and midwifery notes and cardiotocograph (“CTG”) records and failure to call witnesses who recollected the emergency that occurred. The agreed expert evidence was that brain damage was unlikely to have resulted from hypoxia of less than 10 minutes and Macmillan would have avoided brain damage if the period of acute hypoxia had been less than 15 minutes.  The bracket for the damaging period of hypoxia was agreed by the paediatric neurologists to be 16-25 minutes. The Deputy Judge held that Macmillan’s breech presentation should have been discovered shortly after his brother’s birth and the obstetric registrar should have been present by 19.20 hrs if not earlier and he would have been able to detect the cord prolapse and bradycardia (which would have shown on the CTGs) promptly.  He held that the cord prolapse and bradycardia occurred at about 19.25 hrs to 19.30 hrs and accepted that there was a panic in the delivery room (as the parents described) and delay in securing the attendance of the obstetric registrar.  He concluded that the likely period of unnecessary delay was likely to have been approximately 8-10 minutes. The Deputy Judge held that:  “With the onset of asphyxia/hypoxia at about 19.28 hrs, with the obstetric registrar present and with the team ready to act, the mother could and should have been taken to theatre very quickly. Given that CS incision to delivery would take about 2 minutes, the absence of any recorded problem attending Macmillan’s delivery, and that speedy resuscitation was possible, it seems to me quite reasonable to have expected Macmillan to have been delivered and resuscitated, if such was necessary, within about 10 minutes.”  His conclusion therefore was that, but for the hospital’s negligence, Macmillan would not have suffered damaging asphyxia/hypoxia and would have been delivered unharmed.  Macmillan’s claim therefore succeeded on liability and causation.  There will be an assessment of damages hearing on a later occasion.

Savage v South Essex Partnership NHS Foundation Trust: will the Court of Appeal agree with the first instance decision?

In Anna Savage v South Essex Partnership NHS Foundation Trust [2010] EWHC 865 (QB), the Claimant claimed a declaration and damages under the Human Rights Act 1998 after her mother Carol Savage (“CS”), a patient detained in a psychiatric ward under the Mental Health Act 1983, absconded and committed suicide in July 2004.  The case had already been to the House of Lords on a preliminary point on the correct test for determining whether the NHS trust had violated CS’s article 2 right to life (Savage v South Essex Partnership NHS Foundation Trust (2008) UKHL 74, (2009) 1 AC 681).  Applying the test laid down by the House of Lords, Mackay J held that the Trust had violated article 2 and awarded £10,000 damages for just satisfaction. The issues were (a) whether the Trust knew or should have known there was a real and immediate risk of CS committing suicide (b) whether the Trust should have taken steps that would have had a substantial chance of preventing the suicide (c) whether the Claimant was a “victim” entitled to bring proceedings under the 1998 Act and (d) what remedies should be granted. The Judge was critical of the Trust’s failure to comply with its policies on risk assessment and observation and decided (a) the Trust should have known there was a real and immediate risk of CS absconding and that this – because her mental state was so poor that “anything could happen” –amounted to knowledge of a real and immediate risk of suicide (b) 15 or 30 minute observations should have been imposed and would have had a substantial chance of preventing the suicide (c) the Claimant, as CS’s daughter, was a “victim” and entitled to bring proceedings (this aspect of the decision has been recently approved by the Court of Appeal in Rabone v Pennine Care NHS Trust [2010] EWCA Civ 698) and (d) the Claimant was entitled to both a declaration and damages. The Defendant has sought and obtained permission to appeal and the case is due to be heard in the Court of Appeal in February 2011.  Do you think the High Court reached the right conclusion?    

St William's Group Litigation - Claimants fail to establish liability on appeal

Claimants, in what has been described as one of Britain’s biggest sex abuse compensation claims, have failed to establish liability against a lay religious order providing Brothers to work at a residential institution known as St William’s, Market Weighton. The 150 Claimants failed to establish that the De La Salle Order was vicariously liable for the alleged acts of abusers at St William’s during the period 1965 to 1992. At a Preliminary Issue Hearing the judge had held that the managers of St William’s, a committee of lay men and women and the employers of all staff, ran the approved school between 1965 and 1973 and therefore were vicariously liable for alleged acts of physical and sexual abuse by staff during this period. He had also held that the Diocese of Middlesbrough’s children’s societies, which became the statutory responsible organisations for St William’s following its change of status to a Community Home in 1973, were vicariously liable for abuse by staff from 1973 until its closure in 1992. In addition, all liabilities of the managers of the approved school were statutorily transferred to these societies. The Court of Appeal dismissed appeals by the Claimants and the Diocese of Middlesbrough’s children’s societies. Lord Faulks QC and Alastair Hammerton acted for the De La Salle Order, instructed by Cumberland Ellis LLP.

Micklewright v Surrey County Council - Causation in the context of tree branch cases

His Honour Judge Reid QC yesterday handed down judgment in the case of Joanne Micklewright (as Executrix of the estate of Christopher John Imison, Deceased) v Surrey County Council in the Guildford County Court. The Claimant was the executrix of the Deceased, who had tragically been killed when struck by a large branch which fell onto him from an oak tree on the verge of Wick Road, Virginia Water, as he unloaded a bicycle from his car parked in an adjacent lay-by. The Defendant accepted that it was responsible for the tree in question for the purposes of the trial. The main issue at trial concerned the condition of the tree prior to the failure of the branch (which failure occurred on a still, dry, sunny August day in 2007). Damages were agreed at £500,000, subject to liability. In his judgment HHJ Reid QC reiterated that the duty on the Defendant was to take such care as was reasonable in all the circumstances of the case, but that there is no obligation on an occupier or landowner to make his land completely safe. As regards trees on land, there must be some assessment of the potential risks presented by those trees, which requires inspection at appropriate intervals by a person with some training. The judge confirmed that there is no remedy in nuisance in such circumstances. See Noble v Harris [1926] 2KB 332. Further, the judge confirmed that causation is a live issue, so that there will not be automatic liability on a tree owner if he fails to make inspections, as it may be that the tree was suffering from a defect that would not have been revealed in any event. See Caminer v Northern & London IT [1951] AC 88 at 103. As HHJ Reid QC explained in paragraph 18 of his judgment: “It is necessary for the claimant to show that if the owner or occupier had complied with his duty on the balance of probability the defect or danger in the tree would have been noticed. It is important when considering whether the owner or occupier has complied with his duty to avoid using the benefit of hindsight.” In paragraph 21 the judge held that the applicable duty of inspection is a duty to perform “a quick visual check, carried out by a person with a working knowledge of trees as defined by the HSE”. The question for the court was as to whether such a check would have revealed the defect in this particular oak tree prior to the accident, leading to the removal of the offending branch. HHJ Reid QC found that the Defendant’s inspection regime at the time of the accident was inadequate, albeit steps had been taken since 2004 to put in place an effective inspection scheme, but there remained a backlog as regards inspections at the time of the accident, which needed to be cleared in order to meet the annual or bi-annual inspection regime that was suggested as appropriate for a tree at this location by the experts. Accordingly, the “central point in the case” was whether or not the accident would have been avoided had an adequate inspection system been in place at the time of the accident. On that issue, the judge effectively preferred the Defendant’s evidence. The experts disagreed as to whether the cause of the branch failure was internal decay or a phenomenon known as “summer branch drop”, whereby trees sometimes shed branches on warm, dry summer days. The judge held that it was of little importance what caused the branch to fall, as on any view the internal decay was certainly a factor in its failure. The judge held that the pruning wounds visible on the 200 year old oak tree were not defects that required any additional inspection. He similarly preferred the Defendant’s expert as regards a small area of discoloured bark on the tree, and with regard to the various further “defects” below. There was visible decay within the cut section of the branch that had fallen from the tree, and the judge held that there was “irrefutable evidence of significant internal decay. However this does not assist in resolving the question whether there were indicia from which on an appropriate inspection the internal decay and the danger to the integrity of the branch should have become apparent.” When considering the discoloured bark and cracking within the fallen tree branch that could be seen in some photographs the judge held that “On this state of the evidence I am not satisfied that the Claimant has established that there would have been an external crack visible on an appropriate inspection…I am prepared to assume in the Claimant’s favour that the discolouration was such that it could have been seen from the ground on inspection. However this is of little assistance to the Claimant since [the Claimant’s expert’s] evidence was that discolouration of the bark would not of itself prompt a detailed inspection by a trained arboriculturalist”. As regards the Claimant’s expert’s contention that there would have been discoloured foliage to be seen on the tree prior to the accident, the judge accepted the evidence of the Defendant and held that “In my judgment the Claimant has failed to show on the balance of probabilities that there were discoloured leaves on the failed branch”. HHJ Reid QC additionally held that the evidence did not support the contention of the Claimant’s counsel to the effect that the presence of extensive ivy on the tree should have resulted in an expert inspection, whether taken alone or in conjunction with other factors. The conclusion of the court was that “…the Claimant has failed to discharge the burden of proof on her. The balance of probabilities is that [the Defendant’s expert] was correct in his view expressed to the Coroner that this was an unforeseeable accident. Even if there had been a proper system of inspection in place, the defect in the branch would not have been revealed so as to enable the accident to be avoided. Whilst I have every sympathy for the Claimant in this tragic case, as the law stands and with there being no absolute liability for damage caused by highway trees, the result is that her action must fail.” So the claim was dismissed, notwithstanding the finding of a breach of duty. The lesson here is that causation can be a powerful tool in such cases, and that the court can and will understand the dangers of judging matters with the benefit of hindsight. Permission to appeal has been granted. Veitch Penny and Angus Piper acted for the Defendant