the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

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.

Delaney v Secretary of State for Transport - the “crime exception" is contrary to EU law

The High Court has held that the “crime exception", contained in clause 6(1)(e)(iii) of the Uninsured Drivers' Agreement 1999, is in breach of the United Kingdom's obligations under the EU Motor Insurance Directives and that the claimant is entitled to Francovich damages as a result therof ([2014] EWHC 1785 (QB); see www.bailii.org/ew/cases/EWHC/QB/2014/1785.html).   Given the widespread implications for both insurers and the State, it is likely this decision will be subject to appeal.    

Fighting Fraud - paying off for motor insurers and their customers?

Recent growth has been seen in the litigation market in the field of allegations of fraud in road traffic accident cases. Insurers (particularly certain insurers) have latterly been far more confident in fighting claims where there is good evidence of something untoward: dishonesty, such as contrived accidents, phantom passengers or exaggerated medical symptoms.   This strategy appears to be working. Miles Costello in The Times' Business Section reported yesterday that an analysis by EY of Britain's motor insurers annual profits to March 2014, shows they paid out less in claims than they received in premiums for the fist time since 1994. The article however quite properly cites other reasons for this, such as the ban on referral fees and restructuring of the fees recoverable under "new" CFAs. The knock-on effect has been felt by the motorist - this time in a good way - with a 16.6 per cent drop in premiums over the last year to March.   It would be interesting to see if this trend continues. Certainly as the new costs provisions become the norm, it is likely to. The effect of allegedly to be tighter "rules" for diagnosing whiplash injuries (if brought in) are likely to reinforce it as are bans on "distasteful" advertising and incentives such as free tablet computers and cash advances promised to potential claimants. 

Can a Defendant be required to disclose information about its insurance position? A recent decision with a sting in the tail

Any practitioner who has had to grapple with the issue posed in the title to this article will have come to realise that there are two conflicting decisions on the point.       In Harcourt v Griffin (2007) EWHC 1500 (QB), liability was admitted in a multi-million pound personal injury claim. The claimants expressed doubts about the wealth of the Defendants and made a request under CPR Part 18 to elicit the extent of any insurance cover.  Irwin J concluded that the court had power pursuant to CPR 18 to order a defendant to provide this information.   By contrast, in West London Pipeline v Total (UK) (2008) EWHC 1296, a £700m claim for property damage arising out of the Buncefield explosion, David Steel J took a very different view. He concluded that neither CPR 31 nor 18 gave the court power to disclose a copy of, or information about, a Defendant’s insurance policy.  He cited a number of earlier Court of Appeal and High Court decisions which had not been placed before the Court in Harcourt and suggested that Irwin J’s decision might well have been different if they had been.     In X, Y and Z v Various (2013) EWHC 3643 the Court was concerned with a huge group action (in excess of one thousands Claimants) bringing claims for personal injury caused by defective breast implants, an issue which received wide-spread publicity in the news. The claimants had serious concerns about the financial position of one of the Defendants and submitted that unless it had adequate insurance i) successful claims against it would not be met and costs (all incurred under CFAs) would not be paid and/or ii) the relevant defendant would collapse before or at the time of trial, with obvious consequences for the timetable and the resolution of the other claims.   Thirwall J (who is case-managing the breast-implant litigation) agreed with David Steel’s analysis of the power to order disclosure under CPR 18. She concluded that “the insurance position of the defendant is not a matter in dispute in these proceedings. Information about it does not relate to any matter in dispute”.   However, the Claimants had also sought disclosure of the same information under CPR 3.1(2)(m), which provides:   “except where these rules provide otherwise, the court may…take any…step or make any…order for the purpose of managing the case and furthering the overriding objective”.     The Defendant argued that this rule could not possibly be used to achieve, through the back door, that which was not possible under CPR 18 or 31. Parts 18 and 31 of the CPR were, the Defendant submitted, a “comprehensive and complete code which regulates the obtaining and use of documents and other information in civil litigation”.   Thirwall J disagreed. She concluded that whilst she should not order any information about whether the Defendant had sufficient funds to i) meet any order for damages and ii) meet any order for costs, she would order it to disclose whether it had sufficient funds to cover its participation in the litigation to the end of trial. This was a matter going directly to case management of the group litigation since if she were to “revise the directions now and it later transpired that (the Defendant) had been adequately insured all along, the litigation would plainly have consumed (indeed wasted) more than its appropriate share of the court’s resources for no good reason”.   One cannot help but feel some sympathy for the Defendant’s position. Some 6 pages (of 7) of Thirwall J’s judgment were devoted to the question of disclosure under CPR Part 18, in respect of which the application was roundly dismissed. To have allowed the application under an extremely broad ‘catch-all’ provision dealing with case-management plainly left a bitter taste in the mouth.   Nonetheless, the significance of the decision should not be overstated. The order was expressly limited only to information relevant to the Defendant’s financial position to the end of the trial. This was perhaps uniquely relevant in the context of huge group litigation with a total value of £13m. In smaller, single party claims it seems unlikely that there will be any equivalent necessity for the disclosure of such information. Information relating to the Defendant’s ability to meet a judgment or pay costs after trial remains effectively ‘out of bounds’.