piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

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.

Lord Woolf Warns of Human Rights Conflict

Whatever your views about the Human Rights Act 1998 ("HRA"), most lawyers would admit that it has led to many interesting developments in the law, although not as many as were feared as we approached the turn of the century and the Act coming into force.  The approach of the courts in this jurisdiction has, for the most part, been reasonably restrictive although it is clear that in the arena of public and administrative law in particular, the HRA has had a pivotal role in shaping the law. For many personal injury lawyers the HRA impacts little on day to day practice, save for ticking the box on various court documents to confirm that there is no human rights issue in a claim.  Equally, whether one acts primarily for claimants or defendants, the HRA has an influence that cannot be ignored.  For example, the case of R (on the application of Middleton) v HM Coroner for Western Somerset [2004] AC 182 has changed not only the conduct of inquests where Article 2 of the European Convention on Human Rights ("ECHR") is engaged.  As coroners have become more used to conducting wide ranging inquiries and giving narrative verdicts the scope of even traditional inquests has expanded.  Further, if one acts for or against public bodies, an almost inevitable occurrence at some time during the career of most personal injury lawyers, the scope of the duty of care and the obligations owed by agents of the state to individuals in certain areas have also been influenced by the courts' recognition of Convention rights.  It has been well publicised that the government is considering the future of the HRA both as a result of longstanding policy objectives and also following dissatisfaction in some quarters about the influence of the Convention on difficult issues such as prisoner voting rights and whether those on the sex offenders register should have a right to appeal to have their name removed after a certain period of time.  David Cameron has announced an intention to set up a Commission to consider whether a UK Bill of Rights should be introduced. On Monday Lord Woolf, Lord Chief Justice from 2002 to 2005, was interviewed on Radio 4's Today programme.  Although Lord Woolf made it clear that he did not take issue with the setting up of a Commission to consider the issue of human rights, he warned: "We have got a stark option: either we accept the European Convention, or we don't accept it and decide to leave the Council of Europe. It's very difficult to do what [Justice Secretary] Mr Clarke indicated he would like to do when he's chairman of the relevant body, because there are 47 signatories in Europe which are signatories to the European Convention as well as ourselves. To try and amend that is a virtually impossible task...  If you have a further convention - a British convention [the Bill of Rights] - there's going to be a complication in the position, because you're going to have two conventions to which the courts are going to have a regard." Whatever one might think about prisoner voting rights and the sex offenders register, it is easy to anticipate that emotive issues such as these will lead to strong and often polarised views.  Further, whether one is for or against the influence of the ECHR within the UK, one can see that difficult issues such as these do not make a good platform on which to base a discussion about the influence of the HRA on UK law over the last decade.  The incremental and often restrictive approach of the courts in allowing HRA arguments to expand the law much beyond our pre-existing common law receives little attention in the media.  In addition the cases where the HRA is relied on to expand the rights of "the good" rather than "the bad" also usually do not make good press.  An objective and carefully considered discussion about the influence of the HRA, good and bad, across all areas of law over the last decade should be welcomed by all.  Ten years is a reasonable period to enable proper reflection on quite what impact the HRA has had.  However, one cannot help but wonder whether politicians should be reminded not to base that discussion and consideration primarily on hard and topical issues such as prisoner voting rights and the sex offenders register.  After all, at law school most students are taught the old adage: hard cases make bad law.  It seems equally likely that over reliance on hard issues can give rise to bad politics too. 

If he told you to jump off a cliff, would you jump off a cliff? Responsibility, liability and causation

It's the primary school teacher's well-rehearsed refrain.  It's also (almost) the facts of Johnson v Silverlink Trains Limited, heard in Coventry County Court on 23rd February 2011. Mrs Johnson was on her way back from seeing Robbie Williams, along with about 65,000 others. She rushed to Milton Keynes station where a throng of people was blocking the entrance. Mrs Johnson's case was that a station guard directed her under a cordon bearing the message 'Police- Do Not Cross'. As Mrs Johnson ducked under the cordon, she lost her balance and fell flat on her face, sustaining unpleasant injuries. The facts were in dispute and the judge actually found that Mrs Johnson had not been specifically directed to duck under the cordon. But even if she had been, the judge accepted the Defendant's argument that liability did not follow. Mrs Johnson was an adult, the risk of losing her balance going under the cordon was obvious, and at most the guard had permitted her, not obliged her to go under it. She freely and voluntarily decided to go under the cordon and that was the cause of the accident. Even if there was a breach of duty, there was a break in the chain of causation. What are the principles that determine whether a claimant’s actions are a ‘novus actus’ that breaks the chain of causation? Voluntary or Deliberate Act A key point is whether the claimant is properly in control of his actions or not. So where a claimant responds with a panic or reflex reaction to an emergency brought about by the defendant, he is not properly in control of himself precisely because of the emergency the defendant has caused. In such a case the claimant’s actions are unlikely to break the chain of causation. Corr v IBC Vehicles Ltd [2008] 2 WLR 299 was in this category. There, the claimant’s husband had committed suicide after suffering depression and post-traumatic stress disorder following an accident at work for which the defendant accepted liability. The question was whether the suicide broke the chain of causation. On the facts, the House of Lords held that the suicide, though a deliberate, conscious act, was a direct result of depressive illness, which impaired the deceased making reasoned and informed judgments about his future. The House of Lords contrasted this to a Canadian case where the court found that the deceased had made a conscious decision to end her own life, there being no evidence of disabling mental illness leading to incapacity in her facility of volition. So, unsurprisingly, when the court found that the claimant in Wilson v Coulson [2002] PIQR P22 QBD was, despite suffering brain damage in a road accident, still able to take a voluntary, deliberate and informed decision to take heroin, the defendant was not liable for the consequences of this. Reasonable The more unreasonable the claimant’s conduct is, the more likely it is to break the chain of causation. This comes from the House of Lords’ decision in McKew v Holland and Hannen and Cubitts (Scotland) Ltd [1969] 3 All ER 1621. The claimant in that case had injured his leg which was left liable to give way at any moment. He descended steep stairs with no handrail. The leg gave way and with no handrail or adult support he fell, sustaining serious injuries. The House of Lords considered the claimant had acted unreasonably: the weakness in his leg meant he should be careful. He was not and this failure broke the chain of causation. In rescue cases the rescuer’s conduct is very unlikely to be considered unreasonable, even when the claimant puts his own life or limb at risk. This is because “the cry for distress is a summons for relief”. Similar considerations apply where the claimant is dealing with an emergency. In Sayers v Harlow UDC (1958) 1 WLR 623 the claimant found herself locked in a public lavatory. She shouted and banged the door but no-one came to help. She tried to escape by climbing out and in so-doing placed her foot onto the toilet roll – which, as it was designed to do, rotated, causing her to fall. The defendant argued this was wholly unreasonable and won at first instance. The Court of Appeal disagreed: given the situation the claimant found herself by reason of the defendant’s default, trying to escape was reasonable and the accidental placing of her foot on the toilet roll was a misjudgment rather than something so unreasonable as to be a novus actus. Some caution is needed using “unreasonableness” as the touchstone. In the more recent case of Spencer v Wincanton Holdings [2010] PIQR P8 on similar facts to McKew but where the claimant succeeded Sedley LJ doubted “unreasonableness” was helpful, preferring to consider a formulation based on “fairness”. Value Judgment / Fairness Following on from Spencer, in Corr the House of Lords brought these threads together in terms of fairness. This requires a value judgment of the claimant’s actions looking at the facts in the round. So where an act is a voluntary, informed decision it may well break the chain of causation. Where an act is unreasonable, it may break the chain of causation. But an unreasonable act that is not truly voluntary or informed (such as suicide where the balance of the deceased’s mind has been disturbed by the defendant’s tort) will not. It’s important not to forget the exception to the rule too. In the particular case of police guarding a person in custody who had been identified as a suicide risk, the police are under a duty to ‘protect the person from himself’ as set out by the House of Lords’ decision in Reeves v Commissioner of Police for the Metropolis (2000) 1 AC 330. This exception comes about because of the particular and specific nature of the duty in question and as such is likely to be confined to custody cases.      

Claims and Counterclaims: RTA uplifts and settling on the day of trial

Slade J handed down judgment this week in an appeal concerning the question of whether the claimant's legal representatives were entitled to a 100% uplift on their costs, in accordance with the fixed uplift regime for conditional fee agreements in road traffic cases, where the case settled on the day of trial, but before the trial commenced.  She also addressed the vexed question of whether the difference in wording between CPR 45.16 and 45.17 means that solicitor's and counsel's uplifts should be treated differently. In Amin (1) Hussain (2) v Mullings (1) Royal Sun Alliance (2) [2011] EWHC 278 (QB) the facts were typical.  The first claimant (A) was involved in an accident with the first defendant (M) when driving the second claimant's car (H).  A and M blamed each other for the accident.  A brought a claim against M and M counter claimed.  One month before trial the quantum of A's claim was agreed, subject to liability.  By the time the matter was heard by the Recorder on the day of trial the parties had agreed to a 50:50 division of liability and all of M's counterclaim was agreed save for the amount he was entitled to for hire of an alternative vehicle, the only issue which the Recorder was asked to determine.  The Recorder ordered each party to pay the costs of the other of pursuing their claim and awarded each party a 100% uplift on the ground that both the claim and the counterclaim had concluded "at trial" within the meaning of CPR 45.15 and therefore both solicitor and counsel for A were entitled to 100% uplifts on their costs under CPR 45.16 and 45.17.  He gave judgment that "at trial" must include the date or time the trial is fixed to take place and include negotiations that take place on the day of trial to settle the claim or narrow the issues before the hearing commences.  It was submitted on behalf of M and M's insurer that the Recorder had erred in failing to distinguish between the hearing of the counterclaim, which related to the trial of M's claim and A's claim, which was wholly compromised before the hearinng commenced. Slade J held that the Recorder erred in concluding that "at trial" is not defined in CPR 45.  She said "it is clear from CPR 45.15(6)(b) that "at trial" means at a contested hearing.  As is clear from CPR 45.17(1)(a) and (b)(i) the rules recognise a distinction between a trial and the date fixed for the commencement of the trial.  Further, the rules recognise a distinction between the conclusion of a claim after and before a trial has commenced.  Settlement before a trial commences and conclusion by settlement after a trial commencese could both occur on the date fixed for the trial.  The trigger for entitlement to a 100% uplift in fees is  not a settlement on a particular date but a settlement or conclusion after a trial, defined as a hearing, has commenced." Slade J was went on to consider whether there should be any difference in the way solicitor's and counsel's uplifts should be approached arising out of differences in the wording of CPR 45.16 and CPR 45.17.  She considered two conflicting decisions concerning counsel's uplift under CPR 45.17 when a case settles on the day of trial but before the hearing commences.  She approved the decision in Sitapuria v Khan, an unreported decisoin of the Liverpool County Court on 10 December 2007 and declined to follow the decision in Dahele v Thomas Bates & Son Ltd an unreported decision of the Supreme Court Costs Office of April 17 2007.  She held that the meaning of CPR r.45.16 was clear. Its language was not to be given a different meaning to accord with a construction of r.45.17 in order to deal with a perceived lacuna in r.45.17 in relation to the uplift in counsel's fees, as had been done in Dahele.   This is an important decision to be aware of because is addresses two commonly encountered issues.  First, Slade J grapples with the knotty problem of uplifts for both parties where there is a claim and counterclaim but only part of one of the claims remains outstanding at the commencement of the hearing.  Secondly, she considers the difficulty of the competing decisions in Sitapuria and Dahele, both first instance decisions that are no more than persuasive and provides helpful guidance on the interpretation of CPR r 45.16(1) and CPR r 45.17(1), bearing in mind the differences in their wording.  The correct uplift to solicitor's fees where the claim settled before commmencement of the hearing, regardless of whether it was on the day of trial, was 12.5 per cent.  She then went on to say that the language of r.45.17(1)(a) was the same as that of r.45.16(1)(a).  There was no reason to distinguish it from the clear meaning of that provision.  If there were any doubt about the construction of r.45.17(1)(a), in the absence of any basis for ascribing a different meaning to the words "the claim concludes at trial", they should be construed consistently with their clear meaning in r.45.16(1)(a).  Although the proper construction of r.45.17(1) as it applied to the conclusion of claims on the day fixed for trial but before trial commenced was not immediately apparent, there was no lacuna in the rule.  On its proper construction such a settlement gave rise to an entitlement to an uplift in counsel's fees of 50 per cent in a fast track road traffic claim.  

Risk assessments in practice - Uren v MOD (Feb 2011)

Employers doubtless hope that their risk assessments will sit on their shelves gathering dust and will never need to be dug out (except, of course, to be updated) as part of a disclosure exercise. It is obvious that the purpose of the assessment is to encourage employers to think of risks to their employees and to get them to take steps to reduce those risks. But how far does an employer have to go when risk assessing? Can an employer delegate the exercise of carrying out a risk assessment? What is the point anyway of the risk assessment in personal injury litigation?   These questions were all considered in the recent case of Uren v Corporate Leisure (UK) Ltd and MOD (Unreported, 2nd February 2011).  Mr. Uren was employed by the MOD and was taking part in a game at a 'Health and Fun Day' (not in Afghanistan but RAF High Wycombe). The game involved retrieving plastic fruit from an inflatable pool with sides which were cylindrical and 1.04 metres high and with water 18 inches deep. Tragically Mr Uren dived into the pool head first and was rendered tetraplegic as a result of breaking his neck. The issue was whether the defendants were in breach of their common law duty of care. Accordingly the questions for the court were the magnitude of the risk and whether such risk could reasonably be reduced or eliminated. The defendants succeeded at trial but the claimant's appeal was allowed on the basis that the judge failed to give sufficient reasons for preferring the defendants' expert.   The Court of Appeal in Uren made some useful comments on risk assessments. Smith L.J. commented that it was obvious that the failure to carry out a proper risk assessment could never be the direct cause of an injury. It may be indirectly causative where it can be shown that some action could reasonably have been taken which would have prevented the injury had been a proper assessment been carried out. The role of the risk assessment at trial is therefore very often bound up with assessing the magnitude of the risk of injury as well as what steps could have been taken to prevent it.   One of the difficulties with those carrying out risk assessments is how far the assessor needs to go. There was some discussion in the case about the impossibility of considering every variable in a given activity. Smith L.J. commented that formal risk assessments are probably more effective in relation to static conditions or activities which are often repeated in a fairly routine way but they may be a less effective tool where a lot of variables may come into play. She expressed sympathy with the recommendation to 'keep it simple'. Defendants may well want to use this passage when being criticised for a simple risk assessment which does not cover every variable. Equally, when faced with a poor generic assessment (created simply to tick the box) claimants will want to draw attention to Smith L.J.'s comment that risk assessments are an 'opportunity for intelligent and well-informed appraisal of risk'.   On the question of whether the risk assessment can be delegated, Smith L.J. reiterated that it could not. However she said that where an employer used a contractor for an activity and satisfied himself that the contractor had carried out a thorough risk assessment, that might lead to the conclusion that the risk assessment carried out by the employer was suitable and sufficient even though not as detailed as would otherwise be required. In the case of Uren the two defendants had not even conferred and so the court had little difficulty in saying that the MOD could not properly rely on the contractor's assessment.