piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

"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.  

Are counsel’s doodles privileged?

    Do you doodle in meetings? Should you doodle in meetings?   There is both good news and bad.       The good news is that doodling may be good for you! A study by the University of Plymouth and published in Applied Cognitive Psychology suggests that doodling actually helps improve concentration and memory. Two groups of people were asked to listen to a boring telephone conversation. One group was doodling, the other was not. The doodlers remembered 29 per cent more information than those who had simply sat and listened.   The bad news at least so far as counsel is concerned is that any doodles may now have a wider audience than the doodler may have intended. In Hellard and another v Irwin Mitchell [2012] All ER (D) 71; [2012] EWHC 2656 (Ch) His Honour Judge Purle Q.C. sitting as a judge of the Chancery Division heard an application in a claim for alleged professional negligence against the defendant firm of solicitors.       The essential issue was limitation and, in particular, whether it was reasonable for the solicitors to rely on the advice of counsel and what counsel's advice had been. The solicitors applied for a declaration that the claimant trustee in bankruptcy had impliedly waived the obligations of the bankrupt’s former counsel to uphold legal professional privilege in respect of the subject matter of the claim.       It was common ground that the bringing of the claim had operated as a waiver of privilege with regard to the solicitors’ file including the solicitors’ notes of conferences with counsel and the deliberations of the solicitor including deliberations with counsel. The issue was whether privilege still attached to counsel’s own papers such as working papers and notes of conferences because counsel had not been joined in the claim.       The court held that privilege attached to confidential communications between the solicitors, counsel and their mutual client. Once privilege regarding those communications had been waived, any evidence as to those communications could be adduced - see [9], [12], [15] of the judgment.       Thus having waived privilege in relation to counsel's advice, the claimant could not pick and choose which bits of counsel's advice or deliberations could be withheld from the court. The waiver would therefore extend to all of counsel’s own working papers, deliberations and notes including, presumably, any doodles!       Despite the results of the Plymouth study, it seems that doodling does not always help with concentration and memory. One individual is quoted as saying:   “I always doodle, and I don't pay attention … It kind of hurts my memory”.   

Vicarious Liability for Sex Abusers: Catholic Child Welfare Society v Various Claimants (1) The Institute of Christian Brothers (2)

Just this morning, the Supreme Court has given judgment in the historic child abuse case of Catholic Child Welfare Society v Various Claimants (1) The Institute of Christian Brothers (2) [2012] UKSC 56. A fuller report will appear on the PiBlawg, no doubt in due course.     Lord Phillips, giving the sole judgement of the Court held that there are two stages in establishing vicarious liability: (a)    first whether the relationship between the abuser and the defendant was capable of giving rise to vicarious liability; and (b)   secondly examination of the connection that linked the relationship between them and the abuser’s wrongful conduct. Applying this test, the Institute, an unincorporated association, was vicariously liable for the acts of abuse committed by its members who worked in a school under a contract of employment with a third party.   This case may be of inadvertent pertinence in the coming years in light of what the Press suggest it likely to be a veritable avalanche of civil claims brought by victims of child abuse, brought in the wake of the allegations made against Jimmy Savile and others working at the BBC and other institutions. The nature of the employment is likely to be of paramount importance in such cases, especially in those where the alleged abuser is deceased and/or impecunious.   Lord Faulks QC and Alistair Hammerton of 1 Chancery Lane appeared for the Second Respondents.  

Delayed flight claims: Clear for takeoff (2/2)

The ECJ dealt a hammer blow to European airlines this morning in the long-awaited joined cases of TUI and Nelson (Cases C-581/10 and C-629/10). The full text will be available shortly but judging by the press summary, the Court has adopted almost verbatim the Opinion of Advocate General Bot.  This case confirms the decision in Sturgeon (Case C-402/07) that where an air carrier operates or intends to operate a flight either departing from or landing in a EU member state, and that flight is subject to a ‘long delay’ (meaning a delay of three hours or more), each passenger will be entitled to compensation on the following basis: EUR 250 for all flights of 1,500km or less; EUR 400 for all intra-Community flights of more than 1,500km and for all other flights between 1,500km and 3,500km; and EUR 600 for all flights not falling under (1) or (2) The Court confirmed that the temporal scope of its ruling is not limited to those passengers who issued proceedings before today’s judgment, and extends to any potential claim not already statute barred. This case clears the way for many thousands of claims that are currently stayed by court order or consent, to continue on to trial. It is anticipated that many fresh claims will also come forward. Airlines now face a potential liability running into the tens of thousands of pounds for each flight delayed by three hours or more. The ECJ did not however, regard this as a disproportional means of achieving the legitimate aims of the legislation, as long delays are rare (estimated at 1 in every200 scheduled flights) and in any event, airlines can rely on the defence that the delay or cancellation was caused by ‘extraordinary circumstances’.   Attention now turns to the ‘extraordinary circumstances’ defence; the new battleground in denied boarding litigation. Another consideration is how this new liability is to be paid for. Holidaymakers may find themselves paying more for their week in the sun as a result of the ECJ’s latest piece of teleological reasoning.