piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Assessing the cost of ATE Premiums

If anyone needs a reminded why the costs landscape for personal injury litigators has changed so dramatically they may not need look much further than the judgment of the Designated Civil Judge of the County Court at London, HHJ Walden-Smith, sitting with DJ Letham as assessor in the costs case of Banks v London Borough of Hillingdon, which has been commented upon in the legal press. The case concerned the correct assessment of an After-The-Event insurance policy, an issue which ranked high on the list of insurers' (and it seems the Government's) bugbears with the unreformed CFA system.   The underlying case was a straightforward, low-value, public liability tripper case. The successful claimant was awarded just under £7,000 in damages and costs were assessed/agreed save for a somewhat eye-watering £24,694 ATE premium. Master Gordon-Saker the costs judge cut this down to £9,375 on the basis that it was patently unreasonable for a premium to so extensively exceed the likely assured sum. This latter figure the Master considered would have been a maximum of £15,000, that is, the maximum amount such an insurer would have to pay out in costs should the claimant lose the case. He awarded half this sum, plus another 25 percent. Before the learned senior circuit judge it was argued that the costs master misdirected himself and should have considered the “basket of risk” for insurers, rather than applying some sort of common-sense approach on a case-by-case basis. The court overturned Master Gordon-Saker’s decision on the ground that he indeed erred and failed to consider the august guidance of the Court of Appeal in Rogers v Merthyr Tydfil CBC [2006] EWCA Civ 1134. The court held that it was for the paying party to adduce evidence that the premium was excessive and as this had not been available in the instant case, the costs master had no basis to conclude that the sum claimed was unreasonable (per, Kris Motor Spares Ltd v Fox Williams LLP [2010] EWHC 1008). This decision must be seen as victory for claimant litigators, given that it should serve as a persuasive reminder to trial judges to follow Rogers in the ever-diminishing rump of cases where such high ATE premiums are seen. The lesson for defendants is obvious: in cases where they are put on notice that, if successful, a claimant party will seek payment of what appears to be a very high ATE premium, it would be prudent to obtain evidence that lower premiums were available to support the conclusion that what is allowed should be assessed down. In the event that such information is not available until at or after trial, such a defendant would have little option other than to request that the matter be subject to detailed assessment, potentially at the expense of the claimant party.

Clean air: a claim under Article 2?

In February 2013 nine-year-old Ella Kissi-Debrah from Hither Green in South London died after suffering a severe asthma attack. “Can the courts be used to establish that we have a human right to clean air?” asked Nick Robinson on the Today Programme this morning. A report by Royal College of Physicians has apparently linked 40,000 deaths to pollution each year.  A successful case against the government would arguably put the government under considerable pressure as well as resulting in justice for affected families. Ella’s mother and her lawyer were interviewed on the programme. Ella had very severe asthma. According to the Today Programme, nitrogen dioxide levels around their home on the South Circular are double the EU legal limit. Her lawyer, Jocelyn Cockburn, a partner at Hodge Jones & Allen, commented that the coroner had not looked into pollution as a cause of death. The immediate objective, she said, was to try and get a wider investigation into pollution and whether it contributed to Ella’s death. She is seeking to do this by bringing a claim against Lewisham Council and the Mayor of London. She said that they were considering whether or not a case could be brought against the UK government under Article 2 of the European Convention on Human Rights (the Right to Life) on the basis that the government knew that Ella was at immediate risk. There is clearly a long way to go in terms of establishing causation and a claim, but this will be one to keep a close eye on. The full interview can be heard on http://www.bbc.co.uk/programmes/b07dkk07#play

Trial by ambush?

In Hayden v Maidstone & Tunbridge Wells NHS Trust [2016] EWHC 1121 (QB) Foskett J, albeit with “considerable misgiving”, allowed a Defendant to rely on surveillance footage that had been disclosed so late that it caused the trial date to be vacated. The decision is not so much of interest because of its outcome but for the judge’s more general comments on the issue of when surveillance evidence might properly be served. Facts It was held that from May 2015, when their pain management expert expressed the view that it was possible the Claimant was “grossly exaggerating for the purposes of financial gain”, the Defendant had every reason to commission surveillance evidence. Its failure to do so until January 2016 was unexplained and unreasonable. A series of lengthy but less culpable delays thereafter meant that the edited surveillance was finally served by post on 24 March, Maundy Thursday and received on Tuesday 30 March. The Defendant’s application to rely on it came before Foskett J on 8 April who decided that the Claimant should have time to consider her position and that therefore the trial due to commence in the week beginning 11 April had to be vacated. When it came back before him later that month he considered the events leading to that outcome and decided that the interests of justice required the evidence to be admitted. However, he declined to reserve costs to the trial judge holding that this was the “clearest possible case in which the order should be that the Defendant should bear the costs thrown away by the vacation of the trial date on the indemnity basis”. The Defendant was also ordered to pay the costs of the Claimant’s experts considering the surveillance, again on the indemnity basis Points of General Application  In reaching this decision Foskett J made a number of useful observations on the approach that parties and the court should take to surveillance evidence. Lawyers on both sides would be well advised to take those points on board, particularly Defendant representatives considering when to disclose footage. At paragraph 1 the judge explained that he was giving the Claimant time to consider whether she in fact wanted to oppose the application on the basis that this type of application can backfire on Defendants and represent a bonus to Claimants. It’s easy to see how unconvincing footage, presumably the high water mark of a Defendant’s case, might lend weight to a Claimant’s case. At paragraph 31, in the course of reviewing the authorities, he reiterated that the question of whether or not there is an ambush does not require a sinister motive to be shown but asks only whether the behaviour is otherwise culpable. Thus a Defendant does not have to be shown to be acting in bad faith or sharply – what matters is the effect of the conduct on the Claimant’s ability to deal with the evidence fairly. The judge observed at paragraph 34 that were it necessary to find a deliberate attempt to wrong foot the Claimant then this could only be done fairly in a mini-trial of the solicitor’s conduct. This is the sort of satellite litigation which is to be avoided. Reassuringly for those advising Defendants it is clear from paragraph 36 that his decision is not to be taken as altering the well-recognised position that a Defendant is entitled to wait until a Claimant has nailed his colours to the mast in a witness statement and/or schedule of loss before serving surveillance evidence. Having considered paragraphs 71 and 71 of Judge Collender QC’s decision in Douglas v O’Neill [2011] EWHC 601 (QB) he held that the fact that footage existed and more significantly had been seen by experts was not determinative of the question of whether permission to rely on it should be given. Experts are capable of putting such material out of their minds when giving evidence, just as they know not to reveal matters discussed without prejudice. In this case the judge notes that the Claimant’s solicitors perceived it was inappropriate for the experts to be shown the surveillance footage before permission to rely on it was given but does not really deal with whether they were correct. One can see that if the experts’ knowledge of the footage is, while not determinative, a relevant factor it might be improper to share it with experts and then make the application. Conversely the experts’ opinion might be required to decide whether to make the application. He observed that any inadequacy in the rules dealing with surveillance was a matter for the Civil Procedure Committee but noted that two cases on that issue were heard in the Royal Courts of Justice on the same day. At paragraphs 44 to 46 he questioned whether case management might resolve many such issues. It is the experience of the Senior Master that Claimants often seek an order specifying a date by which surveillance evidence must be served and this is frequently resisted by Defendants. It was suggested that it would be prudent for Claimants to raise the matter with the court as soon as they are in receipt of expert reports which suggest there might be an issue and indeed for the court to raise it of its own motion at the case management stage. Finally, at Paragraph 47, once a Claimant’s case as to the level of disability is clearly articulated and the Defendant has an expert opinion suggesting the claim is “suspect”, an obligation arises actively to obtain surveillance evidence if proportionate. This is not therefore a decision which particularly advances the law but it is a useful insight into how courts will approach applications of this nature.

Damages for abuse

The Claimant in KCR v The Scout Association [2016] EWHC 597 (QB) suffered sustained abuse by a Cub Scout Group Leader when a young boy in the 1980s. In 2003 the abuser was convicted of a large number of sexual offences against boys including the Claimant. As might be expected, given recent trends in this area of law, the Defendant admitted that it was vicariously liable for the abuser’s actions. The court was therefore concerned solely with the assessment of damages. The case had one feature that is depressingly common and one that is rather unusual. It is also, in more general terms, a helpful illustration of how courts may approach the difficult issues that cases of this kind throw up. It is often the case that victims of abuse are peculiarly vulnerable individuals. Sometimes this gives the abuser the opportunity to perpetrate abuse (for example, if a child is in care) or prevents the abuse being detected (because there is no-one the child can trust enough to confide in). The correlation (or at least frequent concurrence) of pre-existing vulnerability and abuse makes determining issues of causation in such cases difficult, because children who have experienced traumatic childhoods may already be destined to lead difficult adult lives in any event. In this case, the Claimant’s parents separated when he was four or five years old after his father had been violent towards his mother. He began using drugs in his teens and subsequently obtained his income principally from drug-dealing, with the exception of a few short-lived periods when he was in employment. He had a number of convictions for offences relating to drugs, firearms, dishonesty and violence.   The Claimant contended that he was entitled to a Blamire award for loss of earnings, past and future, on the basis that his inability to find sustained employment was a result of the abuse he had suffered. The Defendant accepted that the Claimant was entitled to general damages, but disputed the loss of earnings claim, contending that it was his “lifestyle choices” rather than the abuse that had prevented him being in sustained employment. The Defendant further contended that, even if factual causation was established, much of the Claimant’s loss should be deemed irrecoverable as a matter of public policy because it arose from the consequences of the Claimant’s own criminal conduct. After a careful analysis of the facts, the court preferred the Defendant’s case on causation. As a result, it did not have to go on to consider the application of the ex turpi maxim. It assessed general damages at £48,000 and dismissed the claim for aggravated damages with reference to Richard v Howie [2004] EWCA Civ 1127. The unusual feature of the case was that at the time he was subject to the abuse, and for some time afterwards, the Claimant and another boy effectively blackmailed the abuser when they realised they could demand from him rewards of money and material possessions in return for keeping quiet about the abuse. The Defendant contended that it should be given credit for the sums thereby extorted from the abuser by the Claimant. It was prayed in aid in support of this submission that the Claimant had himself described the payments in his witness statement to the police as “compensation”. Such a submission is so obviously unattractive that it is perhaps surprising that it was ever advanced and it is not at all surprising that it was rejected by the judge, who held (a) that the payments were gifts and hence could not properly be considered as compensation and (b) that as a matter of public policy the Claimant’s damages should not be reduced as the Defendant suggested. The judge reached the right conclusion, but for the wrong reasons. The payments were not gifts; they were, on the facts, part of a bargain between the Claimant and the abuser whereby the abuser sought to buy the Claimant’s silence so that he could continue to perpetrate abuse (of the Claimant and of others). The real reason the Defendant was not entitled to credit for the payments was that they did not relate to the subject matter of the claim, which was damages for the effect of the abuse on the Claimant in terms of pain, suffering, anguish etc. The abuser made the payments so that he could continue his abuse, not to compensate the Claimant for the effects of that abuse. Because the Defendant’s contention could have been dismissed for that reason, the resort to public policy was unnecessary and possibly unhelpful for future cases where the same or similar issues arise. There may be cases where it would be appropriate for a defendant to be given credit for payments made by an abuser. Suppose an abuser later repented of their abuse and wrote to their former victim expressing contrition for the harm they had caused and enclosing a cheque which the victim banked. Such cases are likely to be exceptional, but as and when they do occur then on what principle of public policy should a defendant who was vicariously liable for the abuser’s actions not be entitled to have that payment taken into account? There will be cases at the margins which will be difficult to decide, but the principle that should be applied remains whether the payments were genuinely compensatory or whether, as here, they were really the price that the abuser was willing to pay to avoid detection. A victim extorting money from an abuser may be unusual but it is not unprecedented. A case that sticks in the mind from criminal law lectures is R v Camplin (“the chapati pan case”) where the defendant murdered his abuser, who he had been blackmailing in return for not revealing the abuse of another boy called “Jumbo”: see the report from the Court of Appeal [1978] QB 254 at 257C. Many of the abuse cases currently working their way through the courts involve wealthy abusers who may have made payments to their victims. How to treat those payments is therefore an issue which the courts are likely to have to address again before too long.

Claims of alleged fraud not exempt from Denton

“The court cannot ignore that insurers are professional litigants, who can properly be held responsible for any blatant disregard of their own commercial interests.” - Gentry v Miller & Anor [2016] EWCA Civ 141 at 34. Such was the warning sent to insurers by the Court of Appeal earlier this month in allowing a Claimant’s appeal against a decision to set aside default judgment in what the Defendant’s insurer alleged was a fraudulent claim. The Facts The Claimant, Mr Gentry, alleged that he was in a road traffic accident with a Mr Miller on 17th March 2013 in a claims notification form valuing the claim at under £10,000. On 2nd April 2013 Mr Miller’s insurer admitted liability. On 8th April the Claimant’s solicitors wrote requesting immediate payment of the pre-accident value of his car (being £16,000) and warning that until that was received he was hiring a replacement vehicle under a credit hire facility. Proceedings were issued against Mr Miller alone on 3rd July and on 8th August the Claimant obtained default judgement. At no point in this period did the insurer instruct solicitors and it replied to only one of seven letters. In late August the insurer made a voluntary interim payment of £14,000 and a Part 36 Offer of £1,870. A further interim payment of £2,000 was ordered in September and paid. At a disposal hearing on 17th October 2013, DJ Benson awarded the Claimant damages of £75,089 consisting mostly of hire charges. On receipt of notification of this award the insurer instructed solicitors who, on 25th November, issued an application referring to CPR 13.3 (1). On 10th February 2014 those same solicitors applied to come off the record for Mr Miller, to add the insurer as the second defendant and to set aside both the default judgment and the order of 17th October. For the first time they alleged that Mr Gentry and Mr Miller were well known to each other and that the claim was a fraud. The application to set aside was granted by DJ Henthorn on 17th March 2014 and on 4th February 2015 Mr Recorder Gregory (as he then was) dismissed the Claimant’s appeal. The decision of the Court of Appeal The Court of Appeal considered the applications under CPR 13.3 and 39.3. In relation to the former Vos LJ was satisfied that the Defendant had demonstrated that it had a real prospect of successfully defending the claim but had to consider under CPR 13.3 (2) whether the application was made promptly. The delay to the application of 25th November was inexcusable. In particular Vos LJ noted that the insurer: Failed to adduce any evidence of its postal systems to explain how documents might not have reached it; Must have been aware after admitting liability at the beginning of April 2013 that it was at risk if it did not defend or attempt to settle the claim; Did not instruct solicitors or investigate fraud in the seven months after that admission; Was repeatedly warned of hire charge risks so that the suggestion that it believed the claim to be small and therefore impliedly not worth investigating did not hold water; In ignoring those warnings allowed the claim to grow; While not notified of the default judgment of 8th August as promptly as it might have been, clearly knew that proceedings were on foot when it made a Part 36 offer on 22nd August; Must also have been aware of proceedings when it paid the interim payment ordered by the court; Upon receiving costs schedules on 19th and 23rd September sent “ahead of the upcoming application hearing”, made no enquiry as to what that hearing was about. The court’s analysis then continued by application of the Denton test. It was common ground that Mr Miller’s default in not filing an acknowledgment of service was serious or significant. The fact that it was not served with the proceedings gave the insurer some reasonable excuse or explanation but it could and should have protected itself when it knew proceedings were being issued by appointing solicitors to accept service on behalf of Mr Miller. Finally, looking to all of the circumstances and in particular factors a) and b) it was held that “insurers are in a particularly good position to conduct litigation efficiently and proportionately and to comply with rules and orders”. It cannot avail an insurer who knows the risk from the moment it admits liability to say it was not a party at the time. The application under CPR 39.3 to set aside the order of 17th October, despite the insurer having notice, (although not a copy), of that order since 25th October, was not made until 26th February 2014. It had not been made promptly and therefore, even if the insurer could show it had a good reason for not attending the trial and a reasonable prospect of success, the application could not be granted. Again, it would in any event probably have failed the third stage of the Denton test. Key Lessons There are two key lessons for insurers arising out of this decision. The first is the reminder at the start of this post that insurers will be treated as professional litigants capable of protecting their own interests. The second is that a credible allegation of fraud is not a trump card. When weighing the competing policy interests of the desirability of testing the allegation of fraud against the requirement that there be finality of litigation, the latter at least can outweigh the former. At some point the insurer must be left to bring its own action in relation to the fraud.

Evidence and interim payment applications

  The High Court has given useful guidance (which serves as a warning) to defendants on their evidential obligations when defending applications for interim payments. In Sellar-Elliot v Howling [2016] EWHC 443 (QB) Sweeney J refused permission to appeal an interim payment order by Master Cook and held that it was not enough for a defendant to rely – when defending an application for an interim payment – on the defence (supported by a statement of truth) and a witness statement from a solicitor confirming that expert evidence supporting the defence had been obtained.   The defendant must go further and provide the court with some reasoned response to the claimant’s expert evidence (which had been unilaterally served to support the application in this case).  Even though – in accordance with court directions – the defendant had since served expert evidence disputing the claimant’s points, the court had to judge the interim payment application on the evidence before it at the time of the application.  In other words, and drawing on the Court of Appeal’s decision in Test Claimants in the FII Group Litigation v Revenue and Customs Comrs (No 2) [2012] 1 WLR 2375, the court must be satisfied that if the case went to trial on the material before the judge at the time of the application that the claimant would succeed and would obtain a substantial amount of money. Defendants therefore bear an evidential burden “to raise matters, on the basis of evidence, which would justify the court in concluding that a claimant would not succeed in obtaining substantial damages”  Sweeney J held that: “…the mere fact that the Defendant’s causation case was supported by reputable expert opinion, and that the Defendant’s expert would dispute the Claimant’s expert evidence at trial, did not mean that, on the evidence, the Claimant had failed to persuade [Master Cook] that the requisite test was met” The message for defendants would seem to be therefore that when a claimant chooses unilaterally to serve expert evidence to support an interim payment application, defendants must serve an argued and detailed expert response, even when the court has already directed that expert evidence is scheduled to be disclosed at a later date The case is on Bailli: http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2016/443.html&query=title+(+Sellar-Elliott+)+and+title+(+v+)+and+title+(+Howling+)&method=boolean                        

Vicarious liability: extension, extension, extension

 “The law of vicarious liability is on the move” are the opening words to the opinion of Lord Reed in Cox v Ministry of Justice [2016] UKSC 10 (quoting Lord Phillips in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56). The Supreme Court has handed down two judgments in the field of vicarious liability (Cox and Mohamud v WM Morrison [2016] UKSC 11) which continue to extend its scope. The five policy reasons for the vicarious liability relationship identified in the Christian Brothers case have effectively been narrowed to three in Cox - a case in which the Supreme Court found that the prison service was vicariously liable for the negligence of a prisoner working in a prison kitchen. In Mohamud the Supreme Court stuck to the articulation of the law in Lister v Hesley Hall [2002] 1 AC 215 but elaborated saying that the court has to consider (1) what functions or “field of activities” have been entrusted by the employer to the employee (a question to be approached “broadly”) and (2) whether there was a sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable. That broad approach meant that the employer of an attendant at a petrol station was vicariously liable for the attendant’s violent attack on the claimant on the petrol station forecourt. For more detailed analysis of these decisions see 1 Chancery Lane Personal Injury Briefing March 2016. Photograph courtesy of Freefoto.com                                                                 http://www.freefoto.com/thanks.jsp

Foreign Law in the English Courts

A number of the English lawyers who conduct PI litigation in cross-border cases have warned that the full implications of the Rome II Regulation (864/2007) – and the impact that it has on the assessment of damages awarded to English Claimants by English Judges – have yet to be felt. By way of recap, Rome II provides (in Article 15(c)) that once the applicable law of the tort has been identified it will apply (among other things) to the existence, the nature and the assessment of the damages to which the Claimant is entitled. In other words, (and by contrast to the previous position under the Private International Law (Miscellaneous Provisions) Act 1995) Rome II extends the reach of the foreign applicable law beyond the identification of heads of recoverable loss and into the assessment of damages process itself. This means a much greater role for foreign legal experts in the English Courts and it also means that English Judges may find themselves confronting (on a regular basis, given the volume of EU RTA claims in the English jurisdiction) vexed foreign law issues which have not been clearly resolved in the foreign jurisdiction from which they derive. In this sense, an English Judge may be called to determine (if you like “to make”) German/French/Lithuanian (delete as appropriate) law. Soole J confronted a dilemma of just this kind in the very recent case of Syred v PZU SA [2015] EWHC 254 (QB) (12.2.16): a PI claim by an English Claimant against a Polish insurer Defendant in respect of an RTA in Poland (to which the English Court applied the law of Poland). One of the issues confronting the Court was the assessment of (what we would call) general damages for pain, suffering and loss of amenity. Polish law provided no fixed scales or guidelines for such damages, but there was evidence that Polish Judges tended to use the non-pecuniary elements of a table or tariff published in an Ordinance by the Polish Labour Ministry. So far, so good, but the additional expert evidence was that the Polish Supreme Court had criticised the use of the Ordinance in this way. Despite this, the Polish lower Courts had continued to use the Ordinance and the Supreme Court had failed to provide an alternative method of calculation of such damages. What was the English Judge to do? The use of the Ordinance was (per Polish Supreme Court) unlawful where it was the sole method of assessment of general damages, however, it was a continuing convention of the Polish Courts to have regard to the Ordinance (in the "overall" assessment process) and it was, therefore, permissible for the English Judge to have similar regard in assessing damages (see, Wall v Mutuelle de Poitiers Assurance [2014] 1 WLR 4263 (CA)). Soole J went ahead and assessed damages accordingly. This looks like a pragmatic solution: after all, the Judge has to find some means by which to make the appropriate award. However, it also looks like an English Judge has resolved an issue of Polish law that the Polish Courts have yet wholly to resolve for themselves. One wonders whether Soole J’s decision will have any precedent value in Poland?

Part 36 Offer: derisory or genuine?

The case of Jockey Club Racecourse Ltd v Willmott Dixon Construction Ltd  [2016] EWHC 167 deals with two interesting questions: (1) does a Part 36 offer have to reflect an available outcome in the litigation to be valid? (2) when is it a genuine attempt to settle liability?  The case concerned a defective roof at the racecourse at Epsom. The claimant offered to settle the issue of liability on the basis that the defendant would “accept liability to pay 95% of our client’s claim for damages to be assessed.” The issues of liability were ultimately resolved by consent wholly in the claimant’s favour. The claim was pleaded at in excess of £5m. The judge endorsed the remarks of Henderson J in AB v CD  [2011] EWHC 602  in which he drew the distinction between a genuine offer or ‘merely a lightly disguised request for total capitulation’. A request to a defendant to submit to judgment for the entirety of the relief sought by the claimant was not an ‘offer to settle’ within the meaning of Part 36. An offer to settle had to contain some genuine element of concession on the part of the claimant to which a significant value could be attached in the context of the litigation. Henderson J considered in the context of a road traffic accident that the offer of 95:5 was derisory. In Huck v Robson [2003] 1 WLR 1340 the Court of appeal held that although no judge would apportion liability 95:5, that was irrelevant. The offer reflected the fact that most claimants prefer certainty to the ordeal of trial and uncertainty about its outcome. They did not think it was merely a tactical step to secure the benefit of the incentives provided by the rule but provided the defendant with a real opportunity for settlement. In Jockey Club Racecourse Edwards-Stuart J. found that, although the Part 36 offer of a 95:5 split was not an outcome available to the court, it did not prevent it being a valid offer. Nothing had been changed by the addition to rule 36.17(5) of subparagraph (e) which requires the court to consider whether the offer was a genuine attempt to settle the proceedings. The judge then went on to consider whether it would be unjust to order the consequences which flow from a failure to better a Part 36 offer. He did not order the consequences to flow from 21 days after the date of the offer but allowed the claimant to have costs on the indemnity basis from the earliest date after that by which “the Defendant could reasonably have put itself in a position to make an informed assessment of the strength of the claim on liability”. That conclusion sits uneasily with the comments of the Court of appeal in its harsh decision in Matthews v Metal Improvements Co Inc [2007] C.P. Rep. 27 where the judge was criticised for deciding the case on the basis of reasonableness. The answer to the two questions I posed above is: (1) a Part 36 Offer does not have to reflect an available outcome in the litigation to be valid although this is less likely to be an issue in personal injury where contributory negligence can reduce a finding that a defendant is liable. (2) A genuine attempt to settle liability is one where the offer is not derisory and is one in which there is ‘some genuine element of concession on the part of the claimant, to which a significant value can be attached’. This will depend on the facts of each case although in the context of a personal injury claim an offer of less than a 5% reduction would be risky where the value is not high.

Top personal injury decisions of the Court of Appeal in 2015

The Court of Appeal has made a number of important decisions in 2015 in the field of personal injury. As the year draws to a close, Ella Davis and I review some of the most important of them for the PI practitioner. They cover psychiatric damage, causation, quantum, the Athens Convention, jurisdiction, duties of care, vicarious liability and non-delegable duties... Psychiatric Damage Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588 was a case of a claimant claiming damages for psychiatric injury consequent on seeing the condition of a loved one brought about by the negligence of a defendant. Of the four requirements for recovery, the decision focused on whether C’s illness had been “induced by a sudden shocking event.” Three issues were at the heart of the case: (1) whether C had suffered a recognised psychiatric illness, (2) Whether there had been “an event” and (3) how “shocking” the event must be. Edward Bishop QC provided a masterly analysis of this and other decisions in the 1 Chancery Lane October 2015 PI Briefing. In brief, C’s wife became extremely unwell due to the negligence of D. C claimed he had suffered psychiatric injury as a result of the shock of seeing his wife’s sudden deterioration and appearance in hospital. The CA confirmed that courts should pay close attention to diagnostic criteria, that whether an event is ‘horrifying’ must be judged by objective standards and by reference to persons of ordinary susceptibility and that for an event in a hospital to be ‘shocking’ required something “wholly exceptional in some way so as to shock or horrify”. It also considered what was meant by an ‘event’ and ‘sudden’ finding that C had not been exposed to one event (“a seamless tale with an obvious beginning and an equally obvious end”) but a series of events with no “inexorable progression”. What had happened was not sudden, it had not caused an “assault upon the senses” but at each stage C had been conditioned for what he was about to perceive. Causation Reaney v University Hospital of North Staffordshire NHS Trust  [2015] EWCA Civ 119 was considered on this blog in a posting by Ella Davis “Quantity not Quality”. She rightly observes that the decision brings clarity to the law rather than any new departure. The CA considered causation in a case where a patient was a paraplegic requiring a care regime (due to non-negligent causes) but due to the negligence of D causing pressure sores, her care needs were increased. The question was whether D caused all her care needs or whether D was only liable for those needs less the needs which she would have had but for the negligence. The key issue was whether the pre-existing care needs were qualitatively different from those caused by the negligence or whether they were merely quantitatively different. The CA found they were only quantitatively different and therefore D was only liable for C’s increased care requirements. In future parties will doubtless pay careful attention to whether losses are qualitatively or quantitatively different as a result of negligence adding to a pre-existing condition. Causation and the Burden of Proof Graves v Brouwer [2015] EWCA Civ 595 concerned a house fire of unknown cause. Mr Brouwer set fire to a small bundle of papers in the passageway next to his house. Very shortly afterward the roof of his neighbour’s house caught fire. The experts agreed that the chances of an ember from the papers travelling to the eaves of the building and starting a fire were very low but, absent arson, were unable to come up with a more probable cause. The judge rejected arson as fanciful and found that, while the flying ember theory was scientifically improbable, the Claimant succeeded on causation. The Court of Appeal overturned her decision saying she had failed to ask herself the ultimate question whether the flying ember theory was more likely or not to be true. The fact that no other possible causes were identified, in large part because there was no investigation at the time, did not make it more probable than not the fire was caused by a flying ember. As Roderick Abbot observed in his blog post “Sherlock Holmes in the Court of Appeal”, the exercise is not one of identifying the least unlikely cause. The Claimant had failed to discharge the burden of proof and that was all the judge was required to find. Quantum Billett v Ministry of Defence [2015] EWCA Civ 773 concerns how courts should assess damages for loss of future earning capacity in circumstances where the claimant suffers from a minor disability, is in steady employment and is earning at his full pre-accident rate. Should the court follow the traditional Smith v Manchester approach or should the court use the Ogden Tables, suitably adjusted? C suffered from a minor Non Freezing Cold Injury (“NFCI”) which had a substantial impact on his day to day life in cold weather. The condition had less impact on his work as a lorry driver than it had on his leisure activities. The judge found that his loss of future earning capacity should be assessed by using Ogden Tables A and B, suitably adjusted, not by applying Smith v Manchester.  The CA upheld his decision that C had a minor disability clarifying that where a court considers whether an injury substantially limits a claimant’s ability to carry out normal day-to-day activities, the enquiry should be directed at what the claimant cannot do rather than what he can do. The CA overturned the judge’s decision to use the Ogden Tables: unadjusted they produced an unrealistic future loss; adjustment however was a matter of broad judgment which was no more scientific than the approach in Smith v Manchester. The judgment still leaves open the question when a disability becomes serious enough to engage the approach in Ogden Tables A and B and when and how those might be adjusted.  However as Andrew Spencer said in his blog on this case (Loss of future earnings and disability) the case is strong authority for retaining the Smith v Manchester approach in cases of minor disabilities with little effect on the claimant’s chosen career. Athens Convention In South West Strategic Health Authority v Bay Island Voyages [2015] EWCA Civ 708 the CA considered two issues relating to the Athens Convention (which governs personal injury to passengers at sea). The first was whether it extended to claims against carriers for contribution to liability of others and the second was the effect of the time bar prescribed by the convention. Dr Feest was injured in a boating accident in the Bristol Channel. The carrier was Bay Island Voyages (“BIV”). Dr Feest’s first firm of solicitors failed to issue against BIV within the 2 year time limit under the Convention and so she sued her employer SWSHA on the basis the accident occurred in the course of her employment. SWSHA joined BIV who successfully applied to have the Part 20 proceedings struck out. The Court of Appeal found that the provisions of the convention were not directly applicable to SWSHA’s claim against BIV. It also found that the time bar in Article 16 did not extinguish the cause of action but only barred the remedy: this was critical for SWSHA’s contribution claim as, if the limitation provisions had extinguished the right to bring the claim, under the provisions of the Civil Liability (Contribution) Act 1978 SWSHA could only have brought a claim within 2 years of the accident. Ian Miller, who represented SWSHA with John Ross QC, blogged on the case: “Contribution, limitation and the Athens Convention.” Jurisdiction Brownlie v Four Seasons Holding Incorporated [2015] EWCA Civ 665 involved the application of the Canada Trust gloss and a novel question about where damage in a tort claim was sustained. C bought an off package excursion in Egypt in which her husband was killed and she was injured. She booked the excursion by making a telephone call in England to the concierge at the hotel in Egypt. After the accident she brought proceedings in the High Court in contract and tort. She brought three tort claims (1) in respect of her own injuries; (2) as a dependant of her husband and (3) for the loss suffered by her husband’s estate. On appeal the court of appeal, applying the Canada Trust gloss – which is well set out and explained in the judgment - found that there was a good arguable case as to the identity of the defendant and as to whether the contract was made in England. This was not novel point of law: it was merely a finding that it was likely that C had called the concierge with proposals and he had accepted them. Given a contract for an excursion is made at the place where the words of acceptance are received, the contract was made in England. The novel point of law considered by the CA was the question of whether damage was sustained within the jurisdiction for the purposes of C’s claim in tort. This is the requirement of paragraph 3.1(9)(a) of the Practice Direction 6B (the tort gateway) for permission to serve out of the jurisdiction. The CA held the jurisdictional gateway should be interpreted consistently with Rome II and therefore the country in which the damage occurs should be the country where the injury was sustained regardless of the country in which the indirect consequences could occur. Thus the Claimant’s personal claim and the claim on behalf of the estate should be brought in Egypt. However, the dependency claim under the Fatal Accidents Act 1976 was not properly described as a consequential loss it was an independent loss and so the Claimant had shown a good arguable case that English law should apply to this claim. Matthew Chapman who appeared in this case with John Ross QC has blogged on it here. Duties of care and mental impairment In Dunnage v Randall [2015] EWCA Civ 673  the Defendant (“V”) was a paranoid schizophrenic who poured petrol over himself and ignited it, injuring his nephew the Claimant. V’s mental state was agreed to be grossly impaired. On a spectrum between completely healthy volition and absent volition he was at least 95 per cent impaired and probably 100 per cent absent volition. A number of helpful points arise from the three lengthy judgments given. First, the court rejected any need to differentiate between mental and physical impairment. Second, a person with a mental impairment owes a duty of care. Third, the standard of care should not be adjusted to take account of the personal characteristics of the Defendant, it is purely objective. Fourth, only Defendants whose attack or medical incapacity has the effect of entirely eliminating any fault or responsibility for the injury can be said not to have broken their duty of care. The Claimant’s appeal was therefore allowed. Interestingly the court noted that insanity is a defence in crime because criminal law is punitive whereas the function of the law of tort is to compensate victims. Vicarious Liability In Graham v Commercial Bodyworks Ltd [2015] EWCA Civ 47  the court had to determine whether an employer was vicariously liable for the acts of an employee who sprayed a co-worker’s overalls with thinning agent and then set them alight causing him considerable injury. Having looked at the Canadian authorities in sex abuse cases, the court considered that the starting point was to examine whether there was a close connection between the creation or enhancement of a risk by the employer and the wrong that accrues therefrom. In this case the employers created a risk in requiring their employees to work with paint thinners but there was not a sufficiently close connection between that risk and the wrongful act. The wrongful act did not further the employer’s aims and it was not related to friction, confrontation or intimacy inherent in the employer's enterprise. Where the employment does not require the exercise of force and there is no inherent friction, intentional conduct in the workplace, whether horseplay or more serious acts, will not normally give rise to vicarious liability. Vicarious Liability and Non-Delegable Duties The Court of Appeal in NA v Nottingham County Council [2015] EWCA Civ 1139 held that a local authority was not vicariously liable for the abuse of a child by the foster carers with which it placed her, nor did it owe her a non-delegable duty to protect her from harm. The relationship between the local authority and the foster carers was not sufficiently akin to one of employment to give rise to vicarious liability. On the issue of a non-delegable duty all three members of the court of appeal gave different reasons summarised in our November 2015 PI Briefing. In brief, Tomlinson LJ held that the local authority had discharged rather than delegated its duty in placing the child with foster carers. Burnett LJ held that what the Claimant sought to do was to expand the common law imposing a strict duty on local authorities on the basis that foster parents were not always able to satisfy a claim. Black LJ held that it would not be fair just and reasonable to apply such a duty; in fact it would be unreasonably burdensome and potentially harmful if it led to over cautious practice.