the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Man walks into a bar...

A personal injury claim in Chambers has just come to its conclusion (it is hoped) with the defendant’s successful appeal from a district judge to the circuit judge.  The district judge had held the defendant county council liable for the claimant’s unusual highway tripping injury, but on appeal that decision was overturned.  The claimant had been walking home in the early hours on a Saturday night after a party.  Needless to say, the district judge accepted his account of an abstemious evening in which he scarcely touched a drop.  Being sober, he then walked home on a route he knew where there was a Victorian piece of iron work at knee height installed in the pavement at the entrance to the local common.  It was the remains of an old kissing gate which had been used to keep livestock from wandering off the medieval common where there were grazing rights, and was now effectively a bar stretching across the whole width of the pavement, with space to go around it to the side.  There were no streetlights nearby and our hero walked straight into the bar and fell face first towards the ground.  He sued the county council because it was the highway authority, but made no claim under the Highways Act 1980.  His claim was for negligence only.  The problem was that no-one knew who had installed the kissing gate many moons ago, who had modified it some time later or who was responsible for maintaining it now.  No-one at county hall could be found who thought the council maintained it.  But it was considered by the local worthies to be an interesting part of the local heritage. The district judge found that the council was subject to a duty of care, having “assumed responsibility” by dint of carrying out routine maintenance inspections of the highway itself, ie because it knew of the presence of the iron structure.  On appeal, the circuit judge pointed out that the postman probably also knew of its presence, but he hadn’t assumed any responsibility.  No basis for a duty of care was discernible.  Unlike the notorious case of Shine v LB Tower Hamlets (child leapfrogging over a wobbly iron bollard), the council had not installed the structure and were not liable of the obstruction. So the moral of the story: carry a torch when wandering around heritage sights at night.

Fraudulent personal injury claims and contempt of court

 Mrs Justice Cox has reminded us of the test and standard to be applied in applications for committal for contempt of court arising out of allegedly fraudulent personal injury claims.  In Montgomery v Brown [2011] EWHC 875 the Defendant made a range of allegations that C had lied about a substantial loss of earnings claim.  Mrs Justice Cox confirmed the test that a person is guilty of contempt of court if, in legal proceedings, he interferes or attempts to interfere with the administration of justice. Putting forward a dishonest claim, suppressing documents which should be disclosed and making false statements of truth were all examples of contempt. The court had to be satisfied, to the criminal standard, that the statements made by C were false, that he knew them to be false when he made them, that at the time they were made they would have, if persisted in, been likely to interfere with the course of justice in some material respect and that he knew that they would be likely to so interfere (Kabushiki Kaisha Sony Computer Entertainment Inc v Ball (Contempt of Court) (2004) EWHC 1984 (Ch) applied).   On the facts, contempt was not made out; however the case is a useful reminder of the test to be applied and the standard it must be proved to.    

Knit at your peril...

I’ve long believed that knitting is a rather odd pursuit. I learnt in childhood that the results rarely justify the hours of effort: misshapen Christmas presents and unwanted scarves still litter cupboards at home. However, I didn’t believe that knitting was actually dangerous. It seems that I was wrong. As a result of a recent Supreme Court decision we now know that knitting – at least on an industrial scale – can cause hearing loss. The Supreme Court appeal concerned the liability of employers in the knitting industry of Derbyshire and Nottingham for hearing loss that employees suffered during the years prior to 1 January 1990 (being the date when the Noise at Work Regulations 1989 came into force). The key issue for the Supreme Court Justices was whether liability could be established at common law and/or in breach of statutory duty pursuant to section 29(1) of the Factories Act 1961 in respect of an employee able to prove a noise-induced hearing loss as a result of exposure to noise levels between 85 and 90dB(A)lepd. The appeal is Baker v Quantum Clothing Group & Anor. [2011] UKSC 17 (judgment was delivered yesterday and a report is in today’s Times and on Lawtel).

When is an agreement not an agreement?

The Claimant suffered very significant injuries at 8 months old which have left her with life long cognitive and physical impairments. The Defendant admitted liability, including causation, at an early stage.  Proceedings have been issued and, thus far, there has been a great deal of co - operation between the parties. Indeed, this even extended to agreement in respect of (1) a substantial interim payment and (2) a costs order whereby the Defendant would pay the Claimant's costs to date in an agreed amount. Very recently the parties attended court for directions and for an order setting out the terms of the aforementioned interim payements.  The night before the hearing it was quite clear both from discussions between the fee earners and from the face of the documents that agreement had been reached as to the date on which the interim payments would be made. In fact the claimant's solicitors had compromised on the amount of the costs on the understanding that  the payment would be received before the end of their financial year. At court however, a different fee earner was in attendance from the Defendant's solicitors and wanted an extra week to make the payments on the basis that the Easter bankholidays would cause difficulties with raising a cheque by the originally agreed date. The extra week took the deadline outside the Claimant's solicitor's financial year. The District Judge gave the Defendant the additional week. Was this the right decision? For what its worth, I do not think so. It makes a bit of a mockery of the consensus that had been reached by the solicitors. Also (and this is not necessarily  a concern for the court), it does not bode well for future relations between the parties....  

Personal injury damages, a cunning new way of increasing claim value

It seems to me that claimant lawyers have done all they can to raise the quantum of personal injury claims on the care side of the special damages spectrum (we have long been familiar with the concepts of 24 hour paid care; "night awake" carers; 2 carers for certain types of claimant; private medical treatments; adapted properties; adapted vehicles; spare wheelchairs, etc etc), and combined damages under this head can now approach £10m for a young person in the most serious of cases. By comparison, the loss of earnings claimed in such cases is typically a relatively modest sum. But the latest plan to raise overall damages, particularly in cases where the medical care side may not sound in substantial damages at all, is to argue for business losses well beyond the actual earnings level of a given claimant at the time of an injury. It works like this: mature adult claimant is earning (say) £50,000 a year at time of injury and has a loss of earnings multiplier of (say) 20. Ergo, future loss of earnings by the conventional route is £1m. That is seen as a derisory sum by hungry claimant litigation lawyers. Get the right claimant and you can attempt to persuade the court to ignore the conventional approach of actual earnings at the time of accident. Instead, evidence is gathered that the individual claimant was on the verge either of massively increasing his or her existing earnings and has lost the chance to do so (as in Johnson v Fourie, which was heard this February in the High Court, judgment currently awaited, in which a sum in excess of £60m was claimed by this method), or claim that a new business was in the pipeline, wholly different to previous employment, which would have led to earnings and/or profits in excess of £10m (as in the recent claim of XYZ v Portsmouth [2011] EWHC 243 QB  Are there other examples of this approach? How often is it successful? Does this represent a developing area in the law on "loss of a chance"? Any other comments?!    

Credit Hire: The Never-Ending Story

It is coming up to nine years since the CA gave judgment in the conjoined test appeals in Clark v Ardington & Others. Many had hoped that their Lordships decision would have put an end to the ongoing battle between the motor insurers and the credit hire industry. It did not. In fact, in many respects Clark gave rise to an increase in the volume of claims proceeding in the county courts on satellite issues. Credit hire litigation has a habit of making a comeback in more ingenious ways than Madonna (that is to say the mega-popstar), and I am not talking about adopting kids from Africa! The most recent guise has been the spate of test cases on enforceability. I don’t propose to use this posting as an in-depth analysis of these judgments; it is a pointer to those who are unaware of the litigation under the Cancellation of Contracts Made in a Consumer’s Home or Place of Work etc Regulations 2008. Yes, the length of the title along with the inclusion of abbreviation ‘etc’ in it says it all. It is probably best described as a turgid bit of consumer law. Like the Consumer Credit Act 1974, the 2008 Regulations were never designed with regulating credit hire as its purport. By chance credit hire agreements entered into by individuals, not companies, fall within its scope. The purpose of the 2008 Regulations is, inter alia, that the consumer’s rights to cancel an agreement be set out in the proscribed way and manner. Failure to do so renders the agreement irredeemably unenforceable as against the consumer. And so the argument goes: if the agreement is unenforceable between hirer and credit-hire company, the former cannot recover the charges from the tortfeasor as that would amount to an unjust enrichment. Because of the pitfalls in non-compliance, some credit-hire organisations have chosen to re-structure their agreement in order to comply. However judges in the county courts are reaching inconsistent decisions on the question of whether the 2008 Regulations have been complied with. Take for instance the decision by HHJ Vosper QC in Guerro v Nykoo (2010) Swansea CC. In that case a compliant notice of cancellation had been served on the hirer but because the terms and conditions, incorporated in a separate document, made no mention of it, the agreement was found to be in breach of the 2008 Regulations. In Orley v Viewpoint Housing Association Ltd (2010) Gateshead CC, HHJ Armstrong reached a different conclusion on more or less identical facts. Both judgments, at least at first blush, appear to be fully reasoned. Whilst there is uncertainty in the law there will always be work for lawyers. However in this field it is unlikely that there will be finality, for the foreseeable future.

How far do you have to go to prove that someone is a malingerer...?

The answer is: quite far – If you read the recent judgment of Field J in the case of Noble v Owens [2011] EWHC 534 (QB). For those who can’t be bothered to trawl through 30 pages, here are the facts. C sustained severe personal injury in a motorcycle accident. Liability was admitted and damages were assessed in 2008 in the sum of almost £3.4million.  C bought a property with his partner and enjoyed a relatively quiet life until he was snapped by the investigators doing things that he claimed he could not do and would never be able to do. The insurer appealed to the CA who found that there was a case to answer in fraud and remitted it back for a re-trial. The insurer relied on a number of matters to demonstrate that C was a malingerer. Firstly the video footage, secondly that he had provided false accounts to the Inland Revenue, thirdly that he had done virtually none of the things that he said he would do concerning his future care and assistance claim. Lastly that he’d lied about a number of matters in order to make the medical evidence suit his claim. Now, don’t get angry! But this was apparently insufficient to persuade the court that he was dishonest or malingering. The fact that he’d cheated the Revenue and had not put his damages to the use that he declared that he had, was not of itself probative of his dishonesty.  It was a matter for him to spend his money how he so chose. His explanation that he appeared to be fitter and more active on account of his over-dependency on painkillers was accepted by the court. The footage of him walking unaided did not demonstrate malingering but a determination to succeed in regaining mobility. The judge was very much influenced by his demeanour in court and the general manner in which he answered questions. Thus the allegation of fraud was dismissed. In the current climate, where the Press and Media bemoan the enveloping miasma of the ‘Compensation Culture’, it is cases like this that add to the list of examples of where the law is going wrong. I’m sure there must have been some cogent evidence to have persuaded Field J to find for the Claimant; but one can see the press having a field day with this (excuse the pun!).

We can all now resile from pre action admissions

In Woodland v Stopford [2011] EWCA Civ 266 handed down today the Court of Appeal again considered the law on resiling from pre action admissions when it dismissed an appeal by the Claimant of the decision of HHJ Holman who had permitted the Defendant to resile from their pre action admission. The claim arises as a result of the infant Claimant suffering an hypoxic brain injury during the course of a school swimming lesson on 5th July 2000. The Claimant was left severely disabled as a result of this injury and the claim is valued at between £2 and £3 million. After an initial denial of liability a pre action admission of liability was made by the Defendant on 27th November 2007. The Defendant then made an interim payment. Thereafter however the Defendant purported to retract that admission in further pre action correspondence on 27th July 2009. The claim was then issued on 25th November 2009 and the pre action admission was pleaded. There then followed cross applications made by the Claimant for Judgment on the admission and by the Defendant for permission to resile from the pre action admission. The applications came before HHJ Holman in April 2010. The applicable law was contained within CPR 14.1A and in particular paragraph 7.2 of the Practice Direction which sets out a non exhaustive list of factors for the Court to consider when hearing such an application. In relation to the Practice Direction HHJ Holman held that the fact that no new evidence had come to light was not fatal to a party wishing to resile. New evidence coming to light was simply one of the matters that the Court must have regard to. In addition HHJ Holman found that the reason why the Defendant had changed their mind about admitting liability was unclear. This absence of information again did not bar the Defendant from succeeding in their application. The clear inference that HHJ Holman formed was that the Defendants had simply misjudged the value of the claim when making the admission. In all the circumstances HHJ Holman permitted the Defendants to reslie from their admission. The main grounds of appeal raised were that there had been no new evidence relied on by the Defendant and that there had been no explanation given to explain the Defendants change of mind. Reliance was placed upon the decision of Steel J in American Reliable Insurance v Willis [2008] EWHC 267 (at present cited in the White Book) that these factual issues were crucial for a Court when deciding whether a party should be permitted to resile. In that case Steel J had described the requirement to show why a party had changed its mind and to evidence the same as a threshold requirement for the party making such an application.      The Court of Appeal held that American Reliable was an unusual commercial case on very different facts. The Court held that it would be “quite wrong” to lift Steel J’s observations out of context and elevate the factual issue of why a party had changed its mind on an admission to a threshold test. Instead the Court has a wide discretion under CPR 14.1A and the listed factors are not listed in any hierarchical order. In this case the Defendant had changed its mind mainly following a second careful appraisal of the known facts. This was an adequate explanation to found such an application. The Judge had carefully considered all of the listed factors he was required to consider and had come to a decision he was entitled to come to.    As a result the Claimants appeal was dismissed and the Defendant was permitted to resile from their pre action admission.    

Safety on the slopes

I have recently returned from a long weekend in the Three Valleys, thankfully with all limbs and joints operating as they ought to.  My first skiing experience was in 2006 and this year has definitely presented the most challenging conditions I have encountered.  Little snowfall (or "Few Snow" as the signs charmingly declare at the top of some runs), warm conditions and use of articificial snow to boost what nature has provided has led to thin cover, ice at higher levels and bumps and slush lower down.  That said, hats off to those runing the resorts because many runs remain in remarkable condition considering. Inevitably there are those unluckier than me, who are returning home with the assistance of crutches and plaster casts.  Much of the time accidents occur because of "operator error" or sheer bad luck.  Collisions do occur however and claims can arise out of them.  Without even getting started on the helmet debate, an issue for another time, it is worth noting that rules for the slopes do exist and they can be of assistance when considering a claim arising out of a ski accident.  These are put in place by the FIS (International Ski Federation) and can be found online at: http://www.fis-ski.com/uk/insidefis/fisgeneralrules/10fisrules.html And for your perusal, here they are: 1.     Respect for others A skier or snowboarder must behave in such a way that he does not endanger or prejudice others. 2.     Control of speed and skiing or snowboarding A skier or snowboarder must move in control. He must adapt his speed and manner of skiing or snowboarding to his personal ability and to the prevailing conditions of terrain, snow and weather as well as to the density of traffic. 3.     Choice of route A skier or snowboarder coming from behind must choose his route in such a way that he does not endanger skiers or snowboarders ahead. 4.     Overtaking A skier or snowboarder may overtake another skier or snowboarder above or below and to the right or to the left provided that he leaves enough space for the overtaken skier or snowboarder to make any voluntary or involuntary movement. 5.     Entering, starting and moving upwards A skier or snowboarder entering a marked run, starting again after stopping or moving upwards on the slopes must look up and down the slopes that he can do so without endangering himself or others. 6.     Stopping on the piste Unless absolutely necessary, a skier or snowboarder must avoid stopping on the piste in narrow places or where visibility is restricted. After a fall in such a place, a skier or snowboarder must move clear of the piste as soon as possible. 7.     Climbing and descending on foot A skier or snowboarder either climbing or descending on foot must keep to the side of the piste. 8.     Respect for signs and markings A skier or snowboarder must respect all signs and markings. 9.     Assistance At accidents, every skier or snowboarder is duty bound to assist. 10.   Identification Every skier or snowboarder and witness, whether a responsible party or not, must exchange names and addresses following an accident.

A Victory for Common Sense?

Tomasz Krysztof Kmiecic, was a carpenter. In June 2006 he tried to fix a leaky garage roof at a Mrs Isaacs’ substantial and valuable home when he fell from a ladder. He shattered his right elbow and injured his hip and thigh. He is now permanently disabled and can never work again as a carpenter and general builder.   The firm that contracted Mr Kmiecic (on £60 to £80) a day did not have insurance. So Mr Kmiecic, turned to Mrs Isaacs for compensation.   Mrs Isaacs was a very house-proud person. Her house had pristine white carpets. Rather than allow Mr Kmeicic to access the part of the roof he was working on and thus have to risk footprints on the carpet, Mrs Issacs gave Mr Kmeicic a ladder to use.   It was Mr Kmiecic’s case that Mrs Isaacs should be construed as his employer. It was argued that by giving a workman instructions to undertake work, a homeowner met the ‘control test’ under as prescribed under the relevant workplace safety regulations. Thus, it was argued, Mrs Isaacs by giving Mr Kmiecic a ladder to use rather than allowing him to walk through her house, breached a duty of care owed to Mr Kmeicic and/or under the Construction (Health, Safety and Welfare) Regulations 1996 and Work at Height Regulations 2005.   Mr Kmiecic’s claim was dismissed by Swift J following a hearing on 11/11/09 and 22/1/10 ([2010] EWHC 381 (QB)). Mr Kmiecic appealed.   On 22/2/11 in an as yet unreported judgment, the Court of Appeal dismissed Mr Kmeicic’s appeal and held that "Mr Kmiecic did not come under Mrs Isaacs' control merely because she forbade him access to her garage roof through her son's bedroom. ... The safety of temporary construction sites is better ensured by focusing the responsibility on employers and others who are equipped to assess how that would be best achieved. ... common sense had prevailed”. A victory for common sense and the homeowner, but not so for unfortunate Mr Kmiecic. This is especially so, when it appears, (as Swift J pointedly noted), that the ‘real culprit’ in this matter was Mr Kmiecic’s uninsured "cowboy" employer.