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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.  

Stroke Caused By Beauty Facial Case Settles

Claims against negligent beauticians and the like are not altogether uncommon. The injuries tend to be dermatological in nature consequent of some allergic reaction to an untested product. But who would have thought it possible, let alone likely, for someone to suffer a stroke as a result of a beauty facial treatment? Tragically that is what happened to Elizabeth Hughes after her visit to the spa at the Eastwell Manor Hotel. What should have been a weekend treat resulted in a serious stroke that left her disabled for life. Her claim, which otherwise would have been tried in the High Court this week, settled for an undisclosed amount. How did it happen? The medical experts on both sides were agreed that the stroke occurred as a result of a dissection to the carotid artery. The dissection was in all probability caused when beauty cream was massaged onto the sides of her neck by the beauty therapist. The issue was whether she was negligent or had applied an excessive degree of force. Unlike sports injury or deep tissue massages, where there are reported cases of stroke, this was a novel situation. This type of injury had not been encountered previously by beauty therapists. Mrs Hughes who was employed by the NHS as a nurse was left significantly disabled. Her disabilities prevented her from returning to employment in the nursing sector. The case has been watched closely by the beauty industry and the press. (http://www.mirror.co.uk/news/uk-news/nurse-disabled-stroke-after-allegedly-6798935) Elizabeth Hughes was represented by Edward Bishop QC and Kiril Waite at 1 Chancery Lane, instructed by Ciaran McCabe at Moore Blatch Legal Resolve.

Quantity not quality

The decision of Foskett J in Reaney v University Hospital of North Staffordshire NHS Trust  [2014] EWHC 3016 (QB) (rightly) caused some excitement in the legal blogosphere when it was handed down in October 2014. It appeared that he had extended the familiar eggshell skull rule by holding that a Defendant who had injured a woman with pre-existing care needs was liable to compensate for her full care needs not just the additional needs. That decision has now been overturned by the Court of Appeal [2015] EWCA Civ 1119  who draw a useful distinction between qualitatively and quantitatively different care needs. The Facts Mrs Reaney, was admitted to hospital in December 2008 with transverse myelitis. As a result she was permanently paralysed below the mid-thoracic level and classified as a T7 paraplegic. It was common ground that this was not caused by any negligence. As a result of a prolonged hospital stay she suffered pressure sores. It was admitted that this was caused by the Defendant’s negligence. As a result of the transverse myelitis she was always destined to be confined to a wheelchair for the rest of her life. It was found that but for the development of the pressure sores, the Claimant would have required some professional care, increasing as she got older. But as a result of the pressure sores and their resulting complications, she would require 24/7 care from 2 carers for the rest of her life. The Decision of Foskett J Foskett J with reference to Paris v Stepney Borough Council [1951] A.C. 367 held at ¶69 that while a Defendant is only liable to compensate for damage which he has caused or to which he has materially contributed, where he has made the Claimant’s position substantially worse he must make full compensation for that worsened condition. He therefore concluded that she was entitled to full compensation for all her care, physiotherapy and accommodation costs, including the care she would have required but for the negligence. The Decision of the Court of Appeal This conclusion was firmly rejected by the Master of the Rolls who held at ¶18 that the tortfeasor must compensate for the condition in which the Claimant finds herself only to the extent that it has been worsened by the negligence. The rule that a Defendant must take his victim as he finds him is, as the Defendant had argued before Foskett J (¶53), sometimes to a Defendant’s disadvantage and sometimes to their advantage. A Defendant who injures someone with a pre-existing vulnerability, such as the famous eggshell skull, is liable for the full loss flowing from his negligence. However, in this case, it was right that the loss should reflect that the Defendant had injured a T7 paraplegic who already had significant care needs. In fact before the Court of Appeal it was, perhaps surprisingly, common ground between the parties that if the Defendant’s negligence gave rise to substantially the same kind of care and other needs as her pre-existing needs, then the damage caused by the negligence was only the additional needs. However, if the care needs flowing from the negligence were qualitatively different from the pre-existing needs, then those needs were in their entirety caused by the negligence. This view was endorsed by Dyson MR at ¶19. The Claimant’s unsuccessful case on appeal was, therefore, that Foskett J had found the care needs arising from the tortious act to be qualitatively different and so there was no need to disturb his overall conclusion. The Master of the Rolls dealt with the question raised as to the position where there was no means of recovery of the underlying loss. He was firm that the ability to recover for the underlying loss was irrelevant and that a person can only ever be liable for the loss they have caused. Comment At first blush the Court of Appeal’s decision appears to have brought welcome clarity. Foskett J’s judgment, while perhaps giving an attractive result, was not easy to reconcile with the earlier authorities. However, as shown by the point taken by the Claimant before the Court of Appeal, it leaves open significant scope for argument as to when a care need is qualitatively different from pre-existing needs. Those advising both Claimants and Defendants will in future cases of this sort want to scrutinise carefully the differences between the care packages and be ready with arguments as to why those differences should be found to be qualitative or quantitative as appropriate. Finally, as unattractive as this result might seem, there is still nothing to stop a court applying the principle in Paris v Stepney Borough Council and making a higher award for PSLA to reflect the fact that the consequences of injury may be substantially worse for an already injured person.

CPR 35.1: When is expert evidence ‘reasonably required’? (1/2)

Expert evidence is often talked of in terms of parties’ ‘rights’, i.e. to a fair trial or for equality of arms. In the field of PI and Clinical Negligence, it is taken for granted that except in the clearest of cases, the Court will admit (often gratefully) expert opinion on condition and prognosis as well as liability and causation. However, two recent decisions in different divisions of the High Court are a reminder that the Court’s powers under Part 35 are framed in terms of the power to restrict rather than permit, the use of experts.   Background   CPR 35.1 ("Duty to restrict expert evidence") provides:   "Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings."   The White Book notes (at paragraph 35.1.1) that the underlying objective is to reduce the inappropriate use of expert evidence.   The courts have taken an increasingly strict line on this, particularly following the changes to civil procedure ushered in by LASPO 2012 (the so called ‘Jackson reforms’).  In Andrew Mitchell MP v News Group Newspapers Limited [2014] EWHC 3590 (QB) for instance, Warby J considered whether it would be appropriate to admit expert evidence:   "CPR 35.1 imposes a duty on the court to restrict expert evidence to that which is reasonably required. I do not, however, read this as imposing a test of absolute necessity. A judgment has to be made in the individual case, and it has to be made before the evidence is heard and evaluated. My conclusion was that evidence which it is credibly said could conclusively determine the single most important issue in the case meets the criterion in the rule."   British Airways Plc v Spencer and (and ors) [2015] EWHC 2477 (Ch)   In British Airways Plc v Spencer and 11 others (present trustees of the British Airways Pension Scheme) [2015] EWHC 2477 (Ch), the Deputy Master refused BA permission to rely on expert evidence. He held that ‘various points raised in the pleadings’ on which BA suggested expert evidence would assist were, in fact, ‘eminently capable of being determined by the judge at trial as issues of fact and law without the assistance of expert evidence...’.  BA appealed.  The appeal succeeded in part. Warren J encouraged courts to consider applications to rely on expert evidence in the following way: Whether, looking at each issue, expert evidence is necessary to resolve it. If it is necessary (not just helpful), it must be admitted. If the evidence is not necessary, whether it would assist the court in resolving the issue. If it would be of assistance, but not necessary, the court could determine the issue without it. Whether (in circumstances where the evidence would be of assistance but not necessary), in the context of the proceedings as a whole, expert evidence on that issue is reasonably required to resolve the proceedings (taking account of factors such as the value of the claim, the likely impact of the judgment, where the costs will fall, and the possible impact on the conduct of the trial).    Although the decision was fact sensitive, the court identified the following points in favour of allowing expert evidence:    The ‘very large’ financial implications of the decision for BA meant that it should be entitled to advance its best case. It would be undesirable to ’tie the hands of’ the trial judge. If the trial judge concluded that expert evidence would not assist, then he could decline to receive that evidence. The fact that BA would bear the costs of the expert evidence whatever happened, and that the trustees would bear no financial risk.    The full judgment is available at http://www.bailii.org/ew/cases/EWHC/Ch/2015/2477.html

Edward Bishop QC considers obstacles in claims for psychiatric damage

In Speirs v St George’s Healthcare NHS Trust (Unreported, December 2014) a mother claimed damages for psychiatric injury which she said had arisen as a result of the shock of seeing one of her daughters who had been seriously damaged during an instrumental ‘ventouse’ birth. The judge dismissed the mother’s claim on the grounds that she had not suffered a psychiatric injury as a result of the ‘event’ identified by the claimant. In an extremely helpful article, Edward Bishop QC, who appeared for the Defendant in Speirs, sets out what a secondary victim must prove to establish his or her claim. Namely: A close tie of love and affection with the person killed, injured or imperilled Physical proximity to the incident in time and space Direct perception of the incident That he or she suffered a recognised psychiatric illness as a result of witnessing a sudden, shocking event. As he says in his article, it is (d) which has arisen for particular consideration in recent case law. He goes on to examine the questions “did seeing the ‘event’ cause a ‘recognised psychiatric illness? What is meant by ‘an event’? And how ‘shocking’ must it be?” The article has been published in the October 2015 1 Chancery Lane Personal Injury Briefing and can be accessed via this link.

Fixed costs in RTA, EL and PL multi track claims

A claim which starts under the RTA protocol but proceeds on the multi track remains subject to the fixed recoverable costs regime. So held HHJ David Grant in the case of Qader v Esure (Unreported, 15th October 2015). The case concerned a claim for damages for personal injury arising out of an RTA. The value of the claim was pleaded at £5,000 to £15,000. The Defendant alleged that the accident had been staged by the Claimant and the claim was allocated to the multi track. At a CCMC a district judge ordered that “CPR 45.29A fixed costs will apply to the claimant’s costs. Costs management does not apply to this case.” The Claimant appealed. CPR rule 45.29A is to be found in Section IIIA of Part 45, which is entitled "Claims which no longer continue under the RTA or EL/PL Pre-Action Protocols - Fixed Recoverable Costs". Paragraph (1) provides as follows: "Subject to paragraph (3), this section applies where a claim is started under (a) the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents ("the RTA Protocol"); or (b) .... the EL/PL Protocol but no longer continues under the relevant Protocol or the Stage 3 Procedure in Practice Direction 8B." The judge found that the text of this rule is clear and states that section IIIA of Part 45 will apply when a claim is started under the RTA Protocol but no longer continues under that protocol or the stage 3 procedure set out in the Practice Direction 8B. The Claimant argued that the district judge’s ruling breached Article 6 of the European Convention of Human Rights as claimants' solicitors would not be willing to risk expending substantial sums in costs without certainty of recovery and would be unwilling to act on a ‘no-win no fee’ basis with such uncertainty. HHJ David Grant rejected this argument saying that the provisions of CPR rule 45.29J provided a material safeguard against such injustice. That rule allows the court in exceptional circumstances to allow costs greater than the fixed recoverable costs at the end of proceedings. The judgment of HHJ David Grant is well-written, compelling and seems right on the rules as they have been drafted. Many claims start out on the EL/PL and RTA protocols but are subsequently moved to the multi-track when it becomes clear that there are much more complicated issues and that the value might be more than originally anticipated. The rules and this judgment are likely to have far-reaching consequences although the provision in the rules for fixed costs to include 20% (RTA claims) and 30% (EL/PL claims) of the damages may go some way to mitigating the harsher consequences in claims which start out as low value but end up as high value. Stuck between the Scylla of paying very high court fees and the Charybdis of a fixed costs regime for a claim which starts under the relevant protocols, claimants’ solicitors will want to exercise great caution. Whether the rule committee intended or foresaw all of this is open to question.

Costs budgeting: are incurred costs untouchable?

How do you get around costs budgeting? One might have thought by incurring considerable costs before the CCMC: Practice direction 3E 7.4 states that the court may not approve costs incurred before the date of a budget. In CIP Properties Ltd v Galliford Try Infrastructure [2015] EWHC 481 Coulson J came up with an order which would prevent parties to litigation trying to get around the process. In the recent case of GSK Project Management Ltd v QPR Holdings Limited [2015] EWHC 2274 Stuart-Smith J made a similar order (will it become known as a ‘Coulson Order’ or a ‘CIP Order?) In GSK Stuart-Smith J was managing the costs in a dispute over works carried out at Queens Park Rangers’ Loftus Road ground. The claim was essentially for £805,675 of unpaid sums due under the contract and there was a counterclaim for defective works. The claimant’s costs budget was for £824,038 and it stated that over £310,000 had been incurred already. The budget therefore exceeded the sums at stake. The defendant’s budget was £455,554 in total although, as the judge commented, a comparison was not appropriate because of the very different hourly rates; comparing the hours was therefore more illuminating. ‘Broad brush’ or detailed approach? Stuart-Smith J commented that experience in the TCC had shown that most costs budgeting reviews can and should be carried out quickly and with the application of a fairly broad brush. He said that ‘only exceptionally will it be appropriate or necessary to go through a Precedent H with a fine tooth-comb, analysing the makeup of figures in detail.’ This, however, he considered an exceptional case because the aggregate sum was so disproportionate to the sums at stake and the length and complexity of the case. Proportionality: The judge’s starting point was that a case would have to be wholly exceptional to render a costs budget of £824,000 proportional for the recovery of £805,000 plus interest. It was not. There were no novel or difficult issues of law, there was only a handful of witnesses, trial had only been listed for 4 days and it was not a document heavy case. He took the view that good reason would need to be shown to justify more than half the figure of £825,000 on proportionality grounds. Reasonableness: the judge rejected the submission that his starting point should be the other party’s budget as parties have different roles and responsibilities. However he accepted he should have regard to it as it ‘may provide useful indicators’. The judge rebuffed a submission that the Defendant had underestimated the resources necessary for the litigation with the comment that such a submission would “probably require evidence and not mere assertion”. That evidence was not available. Pre-action costs: the lesson to draw from the judge’s comments is that if pre-action costs/hours are high then a judge is likely to expect solicitors to be ‘well on top of the case by the time of issue’. If little progress has been made the judge is likely to consider the time has ‘not been reasonably or proportionately incurred.’ The judge said that if he could approve pre-action costs he would have approved £13,500 rather than the £43,067 incurred. Issue/statements of case: the incurred costs for this phase were £246,908. The judge was very critical of the lack of explanation of what had been done during the hours billed given they were so high. He ultimately concluded that £115,000 would have been a reasonable and proportionate expenditure on this phase. Remaining phases: the judge took a hatchet to the remaining phases of the budget on the basis of what he considered reasonable and proportionate. By the time he had finished he had reduced it to £422,622 which, as “it turns out” (he observed), was almost exactly the same as his first assessment of proportionality of the sums being estimated. He then rounded the budget up to £425,000. The court’s difficulty: The problem for the judge was that his £425,000 would have involved substituting his figures for incurred costs which he was not entitled to do. The judge referred to the options Coulson J had set out in CIP Properties (AIPT) Limited v Galliford Try Infrastructure Limited [2015] EWHC 481 (TCC) namely: Order a new budget Declining to approve the claimant’s costs budget Set budget figures and allowing the relevant party to take their chances on incurred costs Refuse to allow any further costs Coulson J settled on (iii) but identified the difficulty: it potentially enabled the claimant to ride roughshod over the budgeting process. The incurred costs were untouchable (£310,000 in GSK ) in the budgeting process but if they were allowed on assessment, they would potentially enable the claimant to exceed the budget set at the CCMC. Coulson J’s way around this was to say effectively to any subsequent costs judge, “if you assess the costs incurred above my figure then you will have to reduce the amount for later work because my estimate will need to be adjusted accordingly.” He put it in a more judicial way setting out the figure he approved for each phase and making the following comment: “I take that figure into account when assessing each element of the prospective/estimated costs dealt with below. To the extent that the claimant recovers more than £x.xx on assessment under this head, it would mean that more work had been legitimately done in the earlier stages of the case than I thought, which would in turn mean that less remained to be done in the future. Thus the prospective costs figures approved below would fall to be reduced by an equivalent sum.” Stuart-Smith J adopted the same approach and stated “in this way the incurred costs/approved costs budget will be a total of £425,000.” He referred succintly to “97(a) of CIP Properties”. The judge concluded by describing the costs estimate as “grossly excessive” being overstated by almost 100%. He made the claimant pay the costs of the issue and ordered the claimant’s solicitors to bring the terms of the judgment to the attention of any paying client who had retained them and to notify the court when it had been done.

Sherlock Holmes in the Court of Appeal

"How often have I said to you that when you have eliminated the impossible, whatever remains, however improbable, must be the truth?”    The Sign of Four begins with a bored Holmes mired in cocaine addiction, much to the disquiet of Dr Watson. A young woman appears. She has a mystery that needs solving. Holmes solves it. He is cured from his addiction and, by the end of the book, the young woman is set to become Mrs Watson.    Amidst all the action comes the pronouncement quoted at the start of this post. It has become one of Holmes’ most enduring dicta on the science of deduction; so enduring, in fact, that his deer-stalkered head was reared in the Court of Appeal last month. The case was Graves v Brouwer [2015] EWCA Civ 595. It concerned a house fire, but the principles are of general application to many cases where a court is obliged to wrestle with competing theories as to causation.    Mr Brouwer and Ms Graves were next-door neighbours. Mr Brouwer was an odd man: he described himself as controlling to the point of being “anal”, a description the judge was happy to adopt. One day he decided to dispose of a small quantity of papers by burning them in the passage by the side of his house. He set them alight and then doused the ashes with a hose. Shortly thereafter, Ms Graves’ house caught fire. In due course she brought a claim against Mr Brouwer, alleging that the fire he started had somehow spread to her house.    Both parties instructed experts. They agreed that the chances of an ember containing sufficient residual energy to start a fire escaping from Mr Brouwer’s passageway and travelling to the eaves of Ms Graves house’ was small. However, the other possibilities were also not particularly attractive. One that was mentioned was “anting”, i.e. birds picking up smoldering cigarette ends and transporting them back to their nests. But there was no positive evidence of birds nesting under the eaves of Ms Graves house. The only other theory that was posited was that persons unknown had deliberately set fire to Ms Graves’ house, i.e. arson.   During cross-examination, Mr Brouwer’s expert was asked whether, if the court took the view that arson did not cause the fire, then on the balance of probabilities, the fire started by Mr Brouwer had to be the cause of the fire in the Claimant’s house, even if improbable. He replied in the affirmative.   The trial judge held that, but for the expert’s concession in cross-examination, she would have been minded to dismiss the claim on causation. But, having rejected the arson theory and the concession having being made, she felt compelled to find for the claimant on causation. She went on to find, however, that Mr Brouwer had not been negligent in the way he has carried out the “burn” and so the claim failed anyway. Both parties appealed. Ms Graves appealed the finding of negligence; Mr Brouwer cross-appealed the finding on causation.   The Court of Appeal took the opportunity to conduct a helpful exposition of the correct principles from the authorities, stretching back to the case in which Holmes made his first appearance in this field, namely The Popi M [1985] 1 WLR 948. That case was about a ship had been lost at sea. The trial judge was Bingham J (as he then was). The House of Lords held that he had fallen into error in deciding the case on causation because he had (albeit implicitly) translated Holmes’ dictum too willingly into a legal context.   What works in a fictional detective story does always not work in court of law. In practice, it is rare to be able eliminate all other possibilities. Some may exist but not have been suggested to the court; others will have been suggested but it will be impossible to eliminate them entirely due to deficiencies in the evidence. So it is incumbent upon a judge to step back and ask themselves whether a particular cause is more likely than not to be the correct one. The exercise is not one of identifying the least unlikely cause and then declaring that the correct one. If, having heard all the evidence, the judge remains of the view that the causal mechanism which establishes the claim is improbable then the claimant has failed to discharge the burden of proof and the claim must fail.    In Graves v Brouwer the Court of Appeal held, applying The Popi M, that the judge had been wrong to place the reliance she did on the expert’s answer in cross-examination. It went further. The question, it said, should not have been asked at all because it invite him to express a conclusion of question of mixed fact and law which it was the task of the judge to reach. The judge had, as a result, fallen into the same error as Bingham J in The Popi M by applying the Holmesian dictum too literally. She should have asked herself whether, all things considered, a flying ember from the fire started by Mr Brouwer was more likely than not to have caused the fire. She had not done so and hence had misdirected herself. So the Court of Appeal allowed Mr Brouwer’s appeal on causation. (It also, incidentally, upheld the judge’s finding on negligence for good measure). Judges may think they know all they need to know about probability because they apply the balance of probabilities every day. But if a judge as capable as the late Sir Thomas Bingham can get it wrong then any judge can get it wrong. Graves v Brouwer is a useful case to use if you want to ensure that they get it right.

Contribution, limitation and the Athens Convention

In South West Strategic Health Authority v Bay Island Voyages [2015] EWCA Civ 708 the Court of Appeal considered the scope of the Athens Convention and the nature of the time-bar in Article 16. In coming to its decision, the Court also considered sections 5(1) and 5(2) of the Carriage by Air Act 1961. In the main action, Dr Feest claims damages for personal injury arising out of an accident which occurred whilst she was a passenger on board The Celtic Pioneer in the Bristol Channel. Her original solicitors missed the two-year time limit for bringing claims under the Athens Convention against the carrier ('BIV'). She issued proceedings against her employer ('SWSHA') one day before the expiry of the three-year time limit under section 11 of the Limitation Act 1980. SWSHA brought a claim for contribution against BIV which was struck out by the district judge. His order was upheld on appeal.  The first issue for the Court of Appeal was whether claims for contribution are encompassed by Article 14 of the Convention which states “no action for damages for the …personal injury to a passenger… shall be brought against a carrier…otherwise than in accordance with this Convention.” On appeal, HHJ Havelock-Allan QC held that Article 14 encompassed contribution claims ([2014] EWHC 177 QB). The Court of Appeal disagreed. The Athens Convention only claims to unify ‘certain rules relating to the carriage by sea of passengers and their luggage’. It is not a complete code and does not encompass contribution claims which are autonomous and derive from the Civil Liability (Contribution) Act 1978. In reaching this conclusion the Court looked at Australian, US and Canadian cases on the equivalent provisions under the Warsaw and Montreal Conventions. The Court of Appeal then considered the nature of the time-bar under Article 16. The importance of this is that SWSHA would not have had a claim for contribution against BIV under the Contribution Act if the effect of Article 16 was to extinguish the cause of action rather than bar the remedy. The Court found that the effect of the words of Article 16 in the light of Financial Services Compensation Scheme Limited v Larnell (Insurances) Limited (in liquidation) [2006] QB 808 (which considered the similarly-worded section 14B of the Limitation Act 1980) was to bar the remedy – unless there was an international consensus upon the understanding of the provision. The Court looked at the French text and concluded that the natural meaning of the French words was to bar the remedy. This understanding was also consistent with language (‘Verjaehrungsfrist’) used in the German Commercial Code. Accordingly Article 16 operated to bar the remedy and not extinguish the cause of action and therefore SWSHA’s contribution claim survived. In reaching their conclusion on Articles 14 and 16 the Court of Appeal also looked at section 5(1) and 5(2) of the Carriage by Air Act 1961 which incorporates the Warsaw and Montreal Conventions into UK law. Of note is its comment that section 5(1) provides a time limit for actions against carrier’s servants or agents, which actions are not themselves within the scope of the Warsaw Convention. John Ross QC and Ian Miller of 1 Chancery Lane acted for the successful appellant.

Car vs Cyclist: Apportionment of liabilty

Fenella Sinclair (A protected person by her litigation friend & daughter) v Rachel Joyner [2015] EWHC 1800 (QB). The Claimant was cycling along a rural road. She was in the middle  of the road, standing on her pedals. She was not wearing a helmet. The Defendant was driving her car along the same road in the opposite direction. She had just come around a bend when she saw the Claimant. She had not been travelling very fast before the bend and she immediately slowed down to around 20 mph. That was the speed she was travelling when she passed the Claimant. Her evidence also was that she was as far over to the nearside of her lane as possible. As the car and and the bike passsed one another their wheels collided.  The Claimant lost control and fell.  She suffered multiple injuries, including a severe brain injury. She was left with a permanently impaired conscious level. The trial was liability only. The Claimant's case was that the Defendant had not kept a proper look out and had failed to properly assess the hazard presented by the Cliamant who was in the middle of the road stadning on her pedals. The Defendant maintained that as she approached and past the Claimant she was driving slowly and appropriately. She reasonably considered the Claimant to present a hazard which required her to do no more than slow down and drive past her. The Claimant lost control of her bike and deviated unexpectedly onto the Defendant's side of the road so that contact occurred. She (the Defendant) was not responsible for that. Mrs Justic Cox held: 1. The courts must not fall into the trap of imposing a counsel of perfection on car drivers. 2. Nevertheless, cyclists are amongst the most vulnerable of road users. The Highway Code expressly says so and advises car drivers to give them plenty of room. 3. The Claimant was on her side of the road but only just. She was also standing on her pedals. The evidence suggested that she was grimacing or loooking uncomfortable. 4. In all the circumstances, a reasonably prudent driver would have appplied the brakes immediately and stopped to allow the Claimant to pass safely. The Defendant did not do that and primary liability was therefore established against her. 5. In terms of contributory negligence, the Claimant should not have been riding in the middle of the road. Her conduct in doing so materially contributed to the damage and was negligent. 6. In assessing apportionment: "The causative potency of the motor vehicle is highly significant in assessing apportionment. There was a risk of very serious injury to the Claimant in this case if the Volvo were to collide with her...the appropriate apportionment of fault for the Claimant in this case is 25 per cent" 7. The Defendant had pleaded that failure to wear a helmet was contributorily negligent. It was not explored in evidence, however, and was not addressed in the Defendant's closing submissions. The judge said that there was no medical evidence adduced to show that failure to wear a helmet had made the injury worse. The allegation was therefore rejected.   Comment This strikes me as placing really quite an onerous burden on drivers. After all, the Claimant was in the middle of the road, on her pedals and approaching a bend. The Defendant was not speeding, she slowed down and she was as far over to the nearside as possible. To suggest that she ought to have stopped completely seems too high a requirement. The case is also worth a read because it involved live evidence from the parties' accident reconstruction experts. The Defendant's expert appears to have been so poor in evidence that, ultimately, counsel did not rely on him. The judge thought this was wise and was critical of his report and his oral evidence.   Sophie Mortimer