piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

A risky business

The Claimant/Appellant in Robert Uren v Corporate Leisure & The Ministry of Defence was meant to be participating in a day which promoted his health.  It was on said day that his accident occurred.  He broke his neck after jumping head first into a shallow pool during a team exercise.   In its decision handed down last week, the Court of Appeal affirmed that an employer’s duty to undertake a risk assessment for a potentially hazardous activity was non-delegable: Regulation 3 Management of Health & Safety Regulations 1999.  However, if an employer in fact delegated this task to a contractor then such a risk assessment could theoretically still be deemed to be ‘suitable and sufficient’ even if it was not as detailed as it could otherwise have been.   This case at first blush appears to formulate a useful foundation to businesses allowing risk assessments to be carried out on their behalf.  Nevertheless, in fact it shows that great caution must be taken when asking another to perform this obligation.  Mere “tick-box” assessments were disapproved of but simple assessments would suffice if there were few variables.  The employer needs to assess the risk assessment produced thoroughly in any event.    In the instant case, the risk assessment carried out was not considered sufficient, hence there could not have been proper reliance placed upon it. Causation can often come to the rescue of deficient risk assessments but it is well established that there will usually not be any mileage in employers alleging that the risk of injury was only slight.    The Court of Appeal held that the judge at first instance did not pay sufficient regard to eye-witness accounts about how dangerous this game played by the RAF was and failed to take into account the differing views of the experts when preferring one over the other.  Accordingly, he failed to balance risk with societal utility commensurately, albeit a balancing exercise of this nature was the correct one.     Their Lordships were clearly emphasising that the risk assessment obligation was crucial, not only to employers but also to judges: who should not simply skip to the balancing exercise.   The successful appeal means that there will be a re-trial.  I will now let others take the risk of guessing what the final outcome will (or should) be…?

Dealing with the discount rate review

A settlement award of £7.85 million (capitalised current value) was recently agreed in the case of TBE v Royal Berkshire NHS Trust.  The award comprises a lump sum payment of £3,660,700 plus annual payments index linked to ASHE 6115 of £140,000 to age 19 and £225,000 from age 19 for life.    The case involved a 10 year-old claimant, TBE (name abbreviated to protect his and his family's privacy), who has severe cerebral palsy caused by medical negligence during his birth. The award of damages will be overseen by the Court of Protection and will be used to provide TBE with the 24 hour care, equipment, therapies and accommodation he will need for the rest of his life.    The order giving effect to the compromise of TBE’s claim included a mechanism for reassessing the multipliers used in calculating his claims for future losses at the conclusion of the review of the discount rate announced by the Lord Chancellor on 9 November 2010. The discount rate which was set at 2.5% by the Damages (Personal Injury) Order 2001 was based on yields generated by index-linked government stock (ILGS). However the rate has not been varied since 2001 and has become increasingly unrealistic in that a 2.5% per year real and net discount rate has not been achieved since the rate was first set.   Accordingly it was necessary for the parties to agree and for the order to include the matters which will in due course be reassessed. In particular, it was necessary to define (1) the “future life sum” (LS)  (2)  the full life multiplier (LM) representing a term certain from Table 28  (3) the “future earnings sum” (ES”) and (4) the earnings multiplier again representing a term certain from Table 28. The intention is that once the Lord Chancellor has concluded his review and determined any new discount rate, the new full life multiplier (“NLM”) and the new earnings multiplier (“NEM”) will be recalculated by reference to Table 28 using that new discount rate.   To arrive at the LS it is necessary to deduct (1) general damages and interest (2) past losses and interest (3) capital expenditure and other costs in the first year (4) CRU (5) any adaptation costs and other costs associated with the immediate purchase of a property.   The advantage to a Claimant of adjourning the issue of the discount rate is that as a result of the review the rate may be decreased resulting in a higher multiplier for future loss. However, careful consideration needs to be given as to whether this is appropriate. For example, the multiplicand under the principles in Roberts -v- Johnstone is also calculated by reference to the discount rate. It follows that a reduction in the discount rate, whilst increasing the multiplier, will decrease the multiplicand to which that multiplier is applied.  There is also the risk that the discount rate may be increased rather than decreased. In the present economic climate this seems unlikely. However, the economy, both in this country and abroad, may look very different in say 18 months or 2 years. Clients will therefore need to be given careful financial advice before agreeing the final form of order and legal advisers would be well advised to record both what that advice is and the fact that it has been given.       

RTA Insurer not liable for the 'same damage' as its insured

In Jubilee Motors Syndicate v Volvo Truck & Bus (Southern) Limited (2010) Jubilee, a road traffic insurer within the meaning of the Road Traffic Act 1988, had been ordered to pay damages following the settlement of a claim against its insured (Volvo) by an injured third party. Jubilee thereafter instigated contribution proceedings against its insured under the Civil Liabiliy (Contribution) Act 1978. Its argument was two-fold. First, it alleged that it was a "person liable in respect of the same damage" as its insured under section 1(1) of the 1978 Act. Alternatively, Jubilee  relied upon section 1(4) of the Act, which provided that "a person who has made or agreed to make any payment in bona fide settlement or compromise of any claim made against him in respect of any damage (including a payment into court which has been accepted) shall be entitled to recover contribution in accordance with this section without regard to whether or not he himself is or ever was liable in respect of the damage" Striking out the contribution claim, the Court held that the terms "same damage" and "in respect of" in s.1(1) of the 1978 Act had to be construed narrowly, in accordance with established case-law. Unlike any potential liability that Volvo might have owed the injured third party directly (i.e as the tortfeasor), Jubilee's liability was contingent on its contractual obligations under the policy of insurance. The 1988 Act did not render Jubilee liable for the third party's personal injuries as such, but rather to satisfy a judgment resulting from the third party's suffering of those personal injuries, as caused by Volvo. Jubilee had never caused the third party any loss or injury. It was never directly, or vicariously, liable for the third party's injuries and could not be regarded as a  'wrongdoer' of any kind.  The claim under s.1(4) of the 1978 Act was also struck out. That section could not be read as having a meaning different from, or extending beyond, the court's definition of "same damage" in s.1(1) of the 1978 Act. Both sections had to be read together. Do you agree with the Court's analysis in this case? Should it matter that Jubilee's liability to pay the agreed settlement with Volvo arose either from the Statutory framework under the Road Traffic Act 1988, or under the policy of insurance?      

B v Ministry of Defence [2010] EWCA Civ 1317

  Section 33 and causation: Personal injury claims issued three years after the date of knowledge are time barred pursuant to section 11 and 14 of the Limitation Act 1980. However, it is often assumed that where a fair trial can still go ahead, the Court will most likely dis-apply the three limitation period and exercise its discretion under section 33 of the same Act. The cogency of the evidence and the ability to defend a stale claim are the very important considerations when analysing the prejudice. However, careful consideration should be given to ‘all of the circumstances’, including a broad assessment of the merits of the claim. This point is illustrated well in the recent case of B v Ministry of Defence [2010] EWCA 1317. The Court of Appeal handed down judgment on 22 November 2010. The judgement is long but interesting in its analysis. The Court of Appeal held that: 1.      A fair trial could still go ahead despite the passage of time. 2.      The judge had erred in his broad assessment of the merits - the assessment was to be carried out objectively.  3.      The Court of Appeal found that the prospects of proving a breach of duty were not good, but were not poor either. 4.      The claims faced very great difficulties on causation: they would have to satisfy the "but for" test and could not rely on proving that any such breach had materially contributed’ to their injuries. 5.      The expert evidence was such that the Claimants could not satisfy the but for test. Consequently, the judge was wrong to exercise his discretion under section 33 because the Claimants’ prospects of establishing causation were hopeless.   

No liability for stressful disciplinary process: Dermott v LB Harrow

In a judgment handed down on 21 January 2011, McKay J dismissed a claim for psychiatric injury suffered by the claimant during a protracted disciplinary process. The claimant alleged a large number of breaches of his employer’s duty to take reasonable care to protect his health and a breach of the implied term of trust and confidence. The judge applied the guidance in Eastwood v Magnox [2003] 1 AC 403 and Hatton v Sunderland [2003] 1 AC 503. He dismissed all of the allegations bar one. He found that a lie told by the defendant to the claimant about the reason for a change in the composition of an appeal panel was sufficiently serious to amount to a breach of the implied term of trust and confidence. However, this single breach had not caused or made a material contribution to the Claimant’s injury. Andrew Warnock and Rebecca Grant acted for the Defendant.  

Should sperm donors be entitled to claim joint residency?

On 15 November 2010, the Court of Appeal adjudicated a custody battle over two children conceived by artificial insemination by a lesbian couple using donated sperm (the case of T v T). In this unusual case, the sperm donor had parental responsibility for the children and applied for further access. In June 2010, a Court at first instance granted the father joint residency, which allowed him equal access to the children, involving 152 night stays. The couple applied for a primary residency order on the basis that the original order "marginalised" the mother's partner’s rights. In its judgment dated 1st December 2010 ([2010] EWCA Civ 1366) the Court of Appeal refused to overturn the joint residency order on the basis that it was appropriate to include the father in the order in the event that the mother died.   

Emergency Services: Liability under the Human Rights Act

Following Lord Young’s report, personal injury funding is likely to be reduced and, as a consequence, claims under the HRA against emergency services may become more frequent, according to Edward Bishop who recently spoke on the topic at the Personal Injury Bar Association Winter Conference. One advantage of the HRA is that, in contrast to the common law, which adopts different approaches to different emergency services as regards the question of whether a duty is owed, the HRA treats the question more consistently. Section 6 of the HRA provides: It is unlawful for a public authority to act in a way which is incompatible with a Convention right. A number of convention rights may be relevant to actions against emergency services, including: a)      Article 2: Right to Life; b)      Article 3: Prohibition of Torture, Inhuman and Degrading Treatment; c)       Article 5: Right to Liberty and Security; and d)      Article 8: Right to Respect for Private and Family Life. The extent of the duties owed under the HRA was explained in Osman v UK ((2000) 29 EHRR 245). At paragraph 116 the Court held: bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources […] it must be established […] that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual […]  from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. However, as Edward highlighted, although the HRA provides a more consistent approach, it may also pose a number of difficulties for claimants. These include the following: a)      The Osman test is more difficult to satisfy than “ordinary” negligence, as explained by Baroness Hale in Savage v South Essex Partnership NHS Foundation Trust ([2008] UKHL 74 at paragraph 97); b)      There is no liability under the HRA for clinical negligence (Powell v United Kingdom (2000) 30 EHRR CD 362); c)       The claimant must be someone who “is (or would be) a victim of the unlawful act” (section 7(1) of the HRA); and d)      The limitation period for HRA claims is one year (section 7(5) of the HRA). Although this is likely to be extendable pursuant to section 33 of the Limitation Act 1980.

Limitation Periods and Abuse of Process

The Court of Appeal has recently attempted to bring some clarity to this area of the law which had become extremely complex.   The Historical Perspective The House of Lords in Horton -v- Sadler (2006) UKHL 27, overturned Walkley -v- Precision Forgings Ltd (1979) 1 W.L.R. 606, and held that s.33 of the Limitation Act 1980 gave a wide and unfettered discretion in relation to the second action to disapply the time limit of three years contained in s.11 of the Act, having regard to the degree to which the parties would be prejudiced and taking into account all circumstances. In Janov v Morris (1981) 1 W.L.R. 1389, the court found that delay in prosecuting an action could amount to an abuse where the default was "intentional and contumelious" or the delay had been "inordinate and inexcusable". This was not followed in Gardner v Southwark London Borough Council (No.2) (1996) 1 W.L.R. 561 (CA), which held: "...a plaintiff who for reasons of negligence, dilatoriness, lethargy or mistake fails to apply for a hearing date before the guillotine date and so suffers the consequences of Ord. 17, r. 11(9), cannot be treated as if he were guilty of wilful or contumacious disobedience" (my emphasis). In Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd (1998) 1 W.L.R. 1426 (CA), Lord Woolf held a "wholesale disregard of the rules is an abuse of process...". This found favour with Chadwick LJ in Securum Finance Ltd v Ashton (2001) Ch. 291 (CA), who held: "whether the claimant's wish to have a 'second bite of the cherry' outweighs the need to allot its own limited resources to other cases. The courts should now follow the guidance given by this court in the Arbuthnot Latham case. " Aldi Stores Ltd -v- WSP Group Plc (2007) EWCA Civ 1260; and Stuart -v- Goldberg Linde (2008) EWCA Civ 2 held that, although the decision whether to strike out a claim on the ground of abuse is ultimately a matter for the court's discretion, the finding of abuse was a judgment which was either right or wrong, albeit it involved an assessment of a large number of factors and might for that reason be hard for an appellate court to dislodge. The CPR introduced a stricter regime for compliance with court orders. May LJ in Vinos -v- Marks & Spencer Plc (2001) 3 All E.R. 784 (CA) and Godwin -v- Swindon BC (2001) EWCA 1478  held that there is nothing unjust in a system of limitation and parties who do not issue in time risk having their cases struck out.   The Present Case In Aktas -v- Adepta; Dixie -v- British Polythene Industries Plc [2010] EWCA Civ. 1170 (22/10/2010) the Court of Appeal (Rix LJ, Longmore LJ, Aikens LJ) specifically considered the question of when a failure to serve proceedings within the limitation period could by itself amount to an abuse of process. The court could find nothing to suggest that failure to serve in time is tantamount to abuse, nor in various other cases put forward by the defendants. Rix LJ, held that, even in this post-Horton era, the abuse of process point could succeed. He held: ·         A mere negligent failure to serve a claim form in time was not an abuse of process; it had never been held to be in any of the many cases cited to the court, nor in Rix LJ’s judgment should it be described as such, nor as being tantamount to such; ·         All the cases made clear that for a matter to be an abuse of process, something more than a single negligent oversight in timely service was required; the various expressions used are: inordinate and inexcusable delay / intentional and contumelious default /  wholesale disregard of the rules; ·         Abuse could not be assumed for failure to comply simply because the rules of service are strict; ·         Nor was misuse of court resources enough to turn such behaviour into an abuse; ·         Lateness in service in breach of the rules did not by itself amount to an abuse of process; ·         On the facts of the instant case, the breach did not prevent the court from exercising its s.33 discretion to allow the action to proceed.

No Human Rights Act duties in Fatal Accidents Act claims

In Morgan v Ministry of Justice [2010] EWHC 2248 QB the High Court has rejected an attempt to introduce Human Rights Act type duties into Fatal Accidents Act claims. The deceased claimant committed suicide whilst receiving treatment in the hospital wing of prison. The hospital wing was run by the NHS and not the Prison Service. The deceased’s estate brought a claim against the Prison Service under the Fatal Accidents Act. The estate argued that the Prison Service was subject to a non-delegable duty under the Human Rights Act to ensure that, whilst he was a prisoner of the State, reasonable care would be taken in respect of all aspects of the arrangements that were made for the deceased’s welfare. By that means, argued the estate, the Prison Service was liable for the NHS’ failure to carry out adequate assessments of the risk that the deceased would commit suicide. It was argued that it did not matter whether the medical staff were the servants or agents of the Prison Service: the non-delegable duty contended for made that issue irrelevant.  The High Court held that the Prison Service did not owe a duty of care either at common law or under the Human Rights Act in respect of the actions of NHS staff. It also held that the Crown Proceedings Act 1947 precluded claims against the Crown in respect of the actions of non-Crown bodies, and that the NHS was a non-Crown body.  

Lies, fraud, exaggeration and costs

Laws LJ suggested in Molloy v Shell UK Limited [2001] EWCA Civ 1272 that lying or grossly exaggerating claimants could be guilty of “a cynical and dishonest abuse of the court’s process” and questioned whether, when “faced with manipulation of the civil justice system on so grand a scale, the court once it knows the facts should entertain the claim at all save to make the claimant pay the defendant’s costs”. Since then, the Court of Appeal made clear in Shah v Wassim Ul-Haq [2009] EWCA Civ 542 that there was no general rule of law that the dishonest exaggeration of a genuine claim should necessarily result in the dismissal of the whole claim. Rather, if the claimant still manages to prove some loss, he will receive compensation for that.   But what about costs where a party has lied or exaggerated but been wholly or partly successful?     The starting point is that costs should follow the event. But this is not the end of the matter. The court can make a different order, having regard to all the circumstances. This specifically includes conduct before, as well as during the proceedings. Conduct includes the manner in which a party has pursued or defended his case or a particular allegation or issue, and notably whether there has been exaggeration – see CPR 44.3(4)-(5).   So the court has power to deprive a successful party of part or all of his costs – or even order that party to pay the other side’s costs – for reasons of conduct, including lying or exaggerating. The points that emerge from case law are as follows:-   1)     The court will start by looking at who’s “won”. 2)     In some cases, where a trial is all about exaggeration, the claimant can win “on paper”, and recover some money or beat a Part 36 offer, but the defendant can, in reality, be the winner and recover its costs (See Painting v University of Oxford [2005] EWCA Civ 161). 3)     Thereafter, the court will look at the matter in the round to see whether a different order should be made. 4)     The Court is entitled to mark its disapproval of lies by reducing the costs otherwise recoverable or even in a serious case ordering the successful party to pay the other side’s costs (See Widlake v BAA Ltd [2009] EWCA Civ 1256, v AXA and Direct Line [2009] EWCA Civ 1331). This is so even if the lies have not caused costs to increase. 5)     Often, costs will have increased because of the lies. For example exaggeration may well prevent a case from settling at an early stage, or lies might prolong a trial. Where this has been the effect, the court can make the party at fault pay for these increased costs (Painting, Widlake).