piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

What is a Witness Statement?

What is a witness statement? What is it for? And what should it contain?   These are all questions which ought to be simple-enough to answer. However frequently it appears to those involved in litigation that the simple-enough answers are not always correct! Witness statements not infrequently go wildly beyond the confines of a lay witness’s actual knowledge of proceedings; opinions and hearsay are sneaked in; and witnesses sometimes appear to make sweeping legal submissions. It is not always easy to persuade a trial judge in a preliminary oral application ahead of a case to strike through offending paragraphs. One is often met with a rebuff that any offensive aspects of a witness statement will merely be judicially ignored.   A recent judgment of the Chancellor of the High Court, Sir Terence Etherton in J D Wetherspoon plc v Harris & Ors [2013] EWHC 1088 (Ch) may provide a litigator in such a situation with a useful authority, as well as affording guidance to anyone drafting witness evidence in a civil case.   In his judgment, the Chancellor exemplified the tenor of the latest round of CPR reform in advocating a back-to-basics and streamlined approach to witness statements.    The applicant (a firm which really does seem to have made a far greater than average contribution to the jurisprudence of personal injury law – now it seems, even from the Chancery Division) made the bold application to strike out the majority of a witness statement adduced by one of the defendant parties. This was upon the basis that the said witness statement contained little more than a recitation of facts based upon documents, commentary upon those documents, argument, submissions and expressions of opinion. In short, Wetherspoons thought the witness statement was improper and abusive.   Counsel for the two respondent parties submitted that as his clients were accused of dishonesty, and as neither party employed any personnel who had direct knowledge of the subject matter of the allegations of dishonesty, they were entitled to adduce evidence refusing the accusations with reference to the documents available in the case.    The Court disagreed and with reference to CPR 32.4 (and paragraph 7 of the Chancery Guide, 7th Edition), held that the witness could not give such opinion evidence orally at trial, nor could he comment factually upon events to which he had no first-hand knowledge or make submissions. Thus, it was held (whilst acknowledging that the said rules were not set in stone and in certain circumstances could be relaxed) that the witness could not give such evidence in written form as contained within the witness statement.  

When is a dentist not a dentist? Tooth whitening and the Dentists Act 1984

The nation's passion for cosmetic enhancement continues apace.  When I was a child we Brits were as perplexed by the American obsession with even shiny white teeth as the Americans were by our yellow snaggly tombstones.  Nowadays simply turning on the television can be blinding.  Every presenter, actor and popstar seems to bare even rows of bright, white veneers.  I am often reminded of one of my favourite episodes of Friends: "The One With Ross's Teeth".  After an ill advised teeth whitening treatment Ross ends up on a date caked in makeup and mute.  The enthusiasm for dental perfection has led to a huge industry in tooth whitening and a similar campaign by dentists against "illegal" tooth whitening.  It has also been a growth industry for healthcare lawyers.  This week the courts have turned their attention to whether tooth whitening constitutes the "practice of dentistry" within the meaning of s. 37(1) of the Dentists Act 1984.  In General Dental Council v Jamous the Divisional Court concluded that tooth whitening does indeed fall within this definition and, as a result, a person not qualified as a dentist is prohibited from providing this treatment.  This decision seems likely to cause quite a shake up in the industry and it will be interesting to see whether the issue is taken any further. 

Personal responsibility, unfortunate accidents and the liability of occupiers

Criminal lawyers are often asked how they can bring themselves to defend people who they know are guilty.  Actually, I am asked that not infrequently too...  But the more common dinner party accusation aimed at civil common law lawyers is: "Pft!  Nanny state!  People can sue for anything nowadays!  Don't people have to take some responsibility for themselves?"  I have two responses to this.  My usual one is to disappear behind my glass of wine before changing the subject.  The other is to say that yes, people bring some ridiculous claims, but it doesn't necessarily mean they win.  The newspaper reading nation has been shocked by publicity about some of the claims brought by police officers injured in the course of their duties that have been pursued.  I don't know any lawyers in our line of business who have.  One has the impression that the Court of Appeal were perhaps a little vexed by the case of Tacagni v Cornwall County Council and ors.  Judgment was handed down yesterday.  Ms Tacagni sued various parties.  Her claim was dealt with under the Occupiers Liability Act 1957.  After consuming eight drinks over a "long" evening Ms Tacagni was walking home in the dark with her partner.  They had no torch and she was wearing uncomfortable shoes.  The pair walked along a raised pathway that ran approximately two metres above and alongside a road until they decided that it was too dark and turned back.  Ms Tacagni's partner left her to go and call a taxi.  Ms Tacagni set off on her own, using a fence to guide her along the path. Following the line of the fence Ms Tacagni left the path, crossed 4.8 metres of grass and fell off the edge of the raised section onto the road below. The fence had been erected around an area of the pathway's retaining wall which had collapsed in 2001. The Court at first instance heard some evidence from the Defendant about concerns one of its employees had had about whether the fence was sufficient to protect cyclists and children.  The judge was obviously swayed by this criticism and found for the claimant, with a two thirds deduction for contributory negligence.  The Court of Appeal allowed the local authority's appeal and dismissed Ms Tacagni's claim.  Their lordships concluded that the evidence as a whole did not warrant the judge's finding that the local authority had unreasonably failed to guard against the risk of accident that in fact befell Ms Tacagni. It was hard to envisage that a person would be using the fence as a guide and that it would not have been obvious to them that they were departing from the path and crossing a significant portion of the grass. Accordingly, the evidence did not warrant the conclusion that the local authority had breached its common duty of care.  The judge had left out a material factor in his evaluation: the degree of care that was to be expected of an ordinary visitor under s.2(3) of the Act. So next time you find yourself at a dinner party being harangued about the state of the law and the fact that people are not expected to take care for themselves you can disappear behind your glass of wine secure in the knowledge that, for the purposes of the Occupiers Liability Act 1957 at least, from time to time the courts conclude that yes they do.   Image: © Bellemedia | <a href="http://www.dreamstime.com/">Dreamstime Stock Photos</a> & <a href="http://www.stockfreeimages.com/">Stock Free Images</a>  

"In Loco Parentis": the liability of schools when disaster strikes

Summer school trips were one of the high points of the year when I was a child. I don't think anyone wholly forgets the bubbling anticipation that comes with the prospect of a totally brilliant trip.  Some were better than others.  An adventure weekend to Windermere where we jumped out of canoes and walked rope bridges was amazing.  The day trip to Martin Mere Wetland Centre was less good.  We sat on the coach for an extra two hours because the driver got lost.  It rained.  I can barely express the excitement that accompanied the school Centenary special trip to Alton Towers.  School trip season is approaching again now that the summer term has begun and, as usual, I reflect on the current state of the law.  It distresses me when it is said that the law is making it impossible for schools to give the next generation the same opportunities we had.  Organising, planning and supervising trips is an intimidating task.  Whilst the law rightly expects schools to take their obligations seriously - planning trips with care - media hype about the perils of litigation is perhaps overstated.  As the Court of Appeal has demonstrated once again, even the most tragic of cases will not necessarily succeed if the school has done its job properly and the claimant cannot show that any errors that might be identified would have made any difference.  Judgment was handed down last Friday in Wilkin-Shaw (Administratrix of the Estate of Charlotte Shaw (Deceased)) v (1) Christopher Fuller; (2) Kingsley School Bideford Trustee Co Ltd [2013] EWCA Civ 410. On 4 March 2007 Charlotte Shaw was 14 years old and participating in a training event for the Ten Tors challenge as part of a team from her school.  The team had completed one day of the training weekend. On the second day their supervising teacher decided that they had proved themselves under supervision and that it was appropriate for the team to progress to remote supervision and carry out a planned walk unaccompanied, checking in at pre arranged points with teachers.  The group successfully completed the second leg of the day's planned journey and arrived at a check point about an hour earlier than expected.  The teachers who they expected to meet were not there.  The supervising teacher spoke to the leader of the group (a pupil) on the telephone and told them to wait.  It transpired that the two members of staff who were supposed to meet them had lost their way and missed the checkpoint. When the teachers contacted the supervising teacher they were told to return to their car. The supervising teacher then received a telephone call from a scoutmaster (T) who had encountered the children waiting at the checkpoint. He told the supervising teacher that the group was starting to get cold and should continue walking. The direct route to the next check point led across the Walla Brook, which was swollen with rain water and uncrossable at that point. The supervising teacher spoke again to the group by telephone and told them to start walking but not to cross Walla Brook but to go round its head.  After the children had started out on the next leg T became involved again and offered to show the group where he had crossed Walla Brook earlier. While attempting to cross, with T's assistance, Charlotte fell in.  She was swept away by the strong current and drowned.  At trial the case was against the school alleging vicarious liability for the supervising teacher's negligence.  That claim was dismissed. Last Friday the Court of Appeal gave judgment on the appeal.  The case on appeal was rather different than at first instance but the Court allowed it to be pursued.  It was argued on behalf of Charlotte's mother that the teacher who should have been present at the checkpoint to meet the children was negligent in getting lost and that had she been present the children would not have followed the advice of T, the scout master they met while waiting at the checkpoint. The Court of Appeal found that the teacher had been negligent, but concluded that it was highly speculative to consider what would have happened had she been at the checkpoint.  The Court considered the duties of a checkpointer and considered that she may well have checked the fitness of the children then sent them on their way, so that she would not have been present on their return when they met T.  Even had she remained at the checkpoint the intervention of T would have broken the chain of causation. Whilst it would be wrong to suggest that anyone should take cheer from a tragic case of this sort, schools should take comfort from the care and rigor with which this case was considered at both first instance and on appeal. I hope that the legacy of this case is to emphasise that exciting trips should be planned properly and carefully, with appropriate training and supervision, but happen they should. 

Long live the Litigant in Person

Some of the readership may have heard there was a move by the Civil Justice Council to rebrand LiP’s “Self Representing Litigants”.   This is now not going to happen. Lord Dyson, Master of the Rolls has stated:   “The term ‘Litigant in Person’ (LiP) should continue to be the sole term used to describe individuals who exercise their right to conduct legal proceedings on their own behalf “   See the short practice guidance by following this link:   https://dl.dropbox.com/u/18097599/annex-a-practice-guidance_litigants-in-person-2.pdf   This sensible decision is welcome as it was important to clear this up before "J day" as it is widely expected that there will be many more LiPs as a result of the costs reforms.    

English RTA Victim Sues MIB for Injuries in Accident Abroad: Applicable Law for Assessment of Damages?

    Bloy & Ireson v MIB [2013] LTL (QB, Manchester DR). This case arose out of a road traffic accident in Lithuania in which the Claimants (the First Claimant, a child, in particular) suffered very serious injuries. The Claimants were UK nationals domiciled in England. The tortfeasor, a Lithuanian national domiciled in Lithuania, was drunk at the time of the accident and was uninsured. The Claimants brought proceedings in the English Court against the MIB in reliance on regulation 13 of the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003. Under Lithuanian law, the liability of the Lithuanian MIB was limited to €500,000 (an award capped in this way would have left the Claimants very substantially undercompensated). Both the MIB and its Lithuanian counterpart were parties to an agreement signed by the compensation bodies in a number of European countries which aimed to define the obligations of those bodies and ensured that, where a compensation body provided compensation, it could obtain reimbursement from the compensation body local to the accident (the reimbursement available under the agreement was based on the local assessment). The issue was whether the MIB was liable to pay the Claimants compensation under the 2003 Regulations assessed in accordance with Lithuanian or English law. The court was asked to determine a preliminary issue in relation to the defendant MIB's liability to pay compensation to the claimants. It was submitted on the Claimants’ behalf that regulation13(2)(b) of the 2003 Regulations should be given its ordinary and natural meaning with the result that compensation should be assessed as if the accident had occurred in Great Britain and, therefore, with no cap on damages. By contrast, the MIB argued that, on a proper interpretation of regulation13(2)(b) and when considered alongside the European Directives it implemented, the Lithuanian cap on damages should apply. It was held that English law should apply to the assessment of damages and that there was no reason for regulation 13 to be given anything other than its ordinary and natural meaning. While regulation 13 was inconsistent with the agreement that the MIB had with equivalent bodies in Europe, there was nothing in the relevant European legislation that required any different interpretation of the 2003 Regulations. The Court applied the same reasoning as the Court of Appeal in Jacobs v Motor Insurers Bureau [2010] EWCA Civ 1208, [2011] 1 WLR 2609 (a case in which the MIB had obtained permission to appeal to the Supreme Court, but had then abandoned the same before the appeal hearing took place).

Applicable Law in Tort under Rome II and English Case Management Decisions

    It’s one of the oldest chestnuts in private international law and has been brought into sharper focus by the Rome II Regulation on applicable law in tort. Assume that the English Claimant is catastrophically injured in a road traffic accident in France. The Claimant sues the tortfeasor’s French insurer in the English Courts (in line with his right to do so under section 3 of the Brussels I Regulation and the Odenbreit (2007) decision of the ECJ). Liability is not in issue and it is agreed that, by reason of Articles 4 and 15 of Rome II, French law will apply to the assessment of the Claimant’s damages. The Claimant wishes to rely on a panel of English experts (medico-legal and non-medical) of the kind usually instructed in catastrophic injury claims case managed and tried in this jurisdiction. The Defendant insurer, by contrast, wishes to restrict the Claimant to the sort of expertise that a French Court would rely upon (usually, one principal expert and a very limited number of additional experts). The Defendant’s argument is that the English Court – required to assess damages on a French law basis – needs, so far as possible, to adopt and replicate the approach that would be taken by a French Court. The Claimant argues that the selection and instruction of expert witnesses is a matter reserved to the law of the forum (English law) by reason of Article 1.3 of Rome II. An issue of just this kind arose in the very recent decision of Tugendhat J in Wall v Mutuelle de Poitiers Assurances [2013] QB 53 (QB). The following preliminary issue was tried, “Does the issue of which expert evidence the court should order fall to be determined: (a) By reference to the law of the forum (English Law) on the basis that this is an issue of ‘evidence and procedure’ within Article 1.3 of Rome II; or (b) By reference to the applicable law (French law) on the basis that this is an issue falling within Article 15 of Rome II?” The academic writing on this issue was somewhat mixed and inconclusive. However, Tugendhat J resolved the preliminary issue – thought to be the first time this question had been tried in this jurisdiction – by accepting the Claimant’s argument: the instruction of experts is a matter of evidence and procedure and, therefore, a matter for the law of the forum (English law). There is an application by the French insurer for permission to appeal.

Claimant’s solicitors pay wasted costs in RTA case

  The defendant insurers in the case of Rasoul v Linkevicius (5th October 2012, Unreported), successfully obtained a wasted costs order against claimant solicitors in an RTA claim. The case is a warning to claimant solicitors in RTA claims where there is an allegation of fraud and parties/witnesses who do not speak English. For defendants it is a lesson in how clear allegations set out from early on can have devastating consequences.  The background facts are similar to those commonly encountered in practice. Following the RTA correspondence ensued between the claimant’s solicitors and the defendant insurers. A modest PI claim was made and the insurers questioned the bona fides of the claim. The Defence pleaded fraud clearly against the claimant. He served a witness statement which did not have an integral statement of truth – the statement appeared on a separate sheet of paper rather than being part of the body of the statement itself. Two witnesses provided statements with statements of truth. At trial the claimant gave no evidence as only spoke Kurdish and was illiterate. His statement had been in English and not translated. The husband and wife witnesses were Kurdish. The husband spoke reasonable English but had given his statement over the phone to a solicitor he had not met and at trial he said that his statement was a substantial expansion of what he told the solicitor. The other witness (his wife) spoke no English – her husband translated for her whilst the solicitor took the statement over the phone. She gave evidence that she had never spoken to the solicitor before the statement arrived. Unsurprisingly the case was dismissed and the judge referred to either the extreme incompetence on the part of the solicitors or an attempt to establish a case on fabricated evidence. The insurer made an application for a waste costs order against the solicitors. The judge made an order on the basis that there was no evidence of a proper signed statement from the claimant or the witness taken before proceedings were issued. Although an interpreter turned up at trial he was not allowed to be used as there had been no order relating to his attendance. The judge was critical that the witnesses were not seen face to face by the solicitors given the allegations of fraud. He concluded that proper competent work by the solicitors would have ensured that the case collapsed long before the trial took place. Defendants will be alert to the possibility of pursuing claimant solicitors where fraud has been alleged, there has been incompetence on the part of claimant solicitors which, had it not taken place, would have been likely to have meant the case would not have gone ahead. Claimants will want to see witnesses and take statements face to face where there are allegations of fraud. They must ensure that a proper ‘integral’ statement of truth is signed on the witness statement. If someone is unable to speak English it is essential that a translator is involved in the process of taking the statement, that the statement is translated, the translator makes an appropriate statement (see Practice Direction to Part 32) and the presence of a translator at trial is anticipated by a court order. Careful preparation needs to be undertaken so that solicitors can protect themselves by showing that a witness did give the evidence set out in the statement – even if they deny it at trial and seek to blame it on the solicitors.  

The Rolls Royce of hire claims...

  This is the latest round in the Court of Appeal in the battle over car hire (Singh v Yaqubi [2013] EWCA Civ 23). The rear door of Mr Singh’s Roller was dented in a road traffic accident. The car took 54 days to repair and the hire bill claimed from the defendant was £92,953.90. Mr Singh was in partnership with Mr Thakrar in a property development business and the Rolls Royce was one of the fleet of seven vehicles owned by the partnership. The judge dismissed the hire claim in its entirety. In doing so he admitted to anxious thoughts about ‘whether the ever increasing insurance premiums of the ordinary motorist, particularly one struggling to make ends meet and needing a modest car to go to work, should in some part be used so that the rich may continue at no expense to themselves to be filled with good things that they think they need.’ In response to Mr Singh’s case that he used the Rolls Royce ‘to maintain the correct impression’ in the circles in which he did business, the judge commented ‘well, what a testament that is to the superficial if not false nature of the warped values of society…’ The Court of Appeal discouraged such comments but concluded that the manner and openness of their expression encouraged a conclusion that the judge was well aware of his responsibility to decide the case on legal principles and in accordance with the evidence. The Court also dismissed the remainder of the appeal concluding that the burden was on the claimant to show a reasonable need for a replacement Rolls during the period of repair. The required need was the need of the partnership and that need was not self-proving. If need is not proved then questions arising out of the reasonableness of measures in mitigation do not arise. That principle had not been weakened by cases following Giles v Thompson.  An important point to note is that the need was put in issue in the defence. It was for the claimant to establish it and if successful, the defendant would have had to show that it had not been met in a reasonable manner. The Court commented that very large hire claims should be scrutinised very carefully. The judge was entitled to require specific evidence of need such as evidence of the actual use of the vehicle for business purposes before the accident and the use to which the hired vehicle was put during the period of hire. This is a helpful case for defendants where a large hire claim is made on the basis that the vehicle is needed for business use. However the Court contrasted business use with a claim by a private motorist. The evidential threshold for the private motorist to establish reasonable need is much lower. The court cited Lord Foscote in Lagden:  he said such a motorist may not be able to predict what particular use will be made during the period of hire; it may just be about convenience and not avoiding some financial loss he or she might otherwise have incurred. The battles continue…. (Image Courtesy of www.freefoto.com)

“Safe sex” – Part 2

Regular readers will recall the story so far in relation to this unfortunate “on the job” injury which raises important questions about activities which can properly be said to arise out of or occur in the course of employment.    The appellant, a female public servant, sued the Australian federal government after being injured while having sex on a work trip in a motel bedroom. A glass light fitting came away from the wall above the bed as she was having sex striking her in the face and causing injuries to her nose, mouth and a tooth as well as “a consequent psychiatric injury” described as an adjustment disorder.   The appellant’s partner’s evidence was that they were “going hard” and that he did not know “if we bumped the light or it just fell off”.  He added, not unreasonably, that he was “not paying attention because we were rolling around”.   The appellant claimed compensation because her injuries were caused “during the course of her employment” as she had been instructed to travel to and spend the night in the motel in a small town in New South Wales ahead of a departmental meeting early the next day.   The respondent, Comcare, the Australian government's workplace safety body, rejected the claim on the grounds that sexual activity “was not an ordinary incident of an overnight stay like showering, sleeping or eating”. That decision was upheld by the Administrative Appeals Tribunal.   However, on appeal to the Federal Court of Australia (FCA), the appellant’s counsel submitted that the accident was in truth “no different than slipping over in the shower”. In addition, “lawful sexual activity” should now be considered reasonable behaviour in a hotel room by an employee as “it's not the 1920s”.   Counsel for ComCare responded that people need to eat, sleep and attend to their personal hygiene but “you don't need to have sex”.   The judge, Nicholas J., allowed the appellant’s appeal - see PVYW v Comcare (No 2) [2012] FCA 395. The judge held that “While it is true that in determining whether an injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the applicant’s employment, there was nothing of that description in the present case which could justify a finding that the interval or interlude was interrupted by the applicant’s lawful sexual activity” – see [54] of the judgment.   Comcare appealed to the full court of the FCA which on 13 December 2012 dismissed its appeal – see Comcare v PVYW [2012] FCAFC 181.   In a carefully reasoned judgment the full court, presided over by Keane CJ., rejected Comcare’s essential submission that “an injured employee who claims to have been injured during an interval or interlude between periods of actual work must show both that the injury occurred at a place he or she was induced or encouraged by the employer to be and that the activity from which the injury arose was induced or encouraged by the employer, or was implicitly accepted”.   The court held that that the potential conditions for liability were not conjunctive in the sense that an activity test should be super-imposed on a place test. There was no combined or two-stage test. There was a single test which may be satisfied in either one of two ways. Further, the concept of, here, “a frolic of her own” was one which applies to wrongful acts. The court also made clear that “the views of the respondent’s employer about the respondent’s (lawful) activities were irrelevant, whether or not those views (if sought) may have reflected disapproval or indifference” – see [50] – [55] of the judgment.   This must be right. Why should being injured whilst having sex be any different to the claimant being injured whilst working out on one of the exercise bicycles or cross trainers in the motel’s gym provided that the injury occurred within an overall period or episode of work and negligence can be shown. Further, why should the employer approve when and how an employee has sex any more than where she chooses to have her breakfast?   Comcare is considering an appeal to the High Court, Australia's highest legal tribunal. In the meantime, common sense has prevailed, the judgment provides useful guidance on the scope of workplace injuries and I, for one, will in future double check the structural integrity of motel light fittings.