piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Top personal injury decisions of the Court of Appeal in 2015

The Court of Appeal has made a number of important decisions in 2015 in the field of personal injury. As the year draws to a close, Ella Davis and I review some of the most important of them for the PI practitioner. They cover psychiatric damage, causation, quantum, the Athens Convention, jurisdiction, duties of care, vicarious liability and non-delegable duties... Psychiatric Damage Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588 was a case of a claimant claiming damages for psychiatric injury consequent on seeing the condition of a loved one brought about by the negligence of a defendant. Of the four requirements for recovery, the decision focused on whether C’s illness had been “induced by a sudden shocking event.” Three issues were at the heart of the case: (1) whether C had suffered a recognised psychiatric illness, (2) Whether there had been “an event” and (3) how “shocking” the event must be. Edward Bishop QC provided a masterly analysis of this and other decisions in the 1 Chancery Lane October 2015 PI Briefing. In brief, C’s wife became extremely unwell due to the negligence of D. C claimed he had suffered psychiatric injury as a result of the shock of seeing his wife’s sudden deterioration and appearance in hospital. The CA confirmed that courts should pay close attention to diagnostic criteria, that whether an event is ‘horrifying’ must be judged by objective standards and by reference to persons of ordinary susceptibility and that for an event in a hospital to be ‘shocking’ required something “wholly exceptional in some way so as to shock or horrify”. It also considered what was meant by an ‘event’ and ‘sudden’ finding that C had not been exposed to one event (“a seamless tale with an obvious beginning and an equally obvious end”) but a series of events with no “inexorable progression”. What had happened was not sudden, it had not caused an “assault upon the senses” but at each stage C had been conditioned for what he was about to perceive. Causation Reaney v University Hospital of North Staffordshire NHS Trust  [2015] EWCA Civ 119 was considered on this blog in a posting by Ella Davis “Quantity not Quality”. She rightly observes that the decision brings clarity to the law rather than any new departure. The CA considered causation in a case where a patient was a paraplegic requiring a care regime (due to non-negligent causes) but due to the negligence of D causing pressure sores, her care needs were increased. The question was whether D caused all her care needs or whether D was only liable for those needs less the needs which she would have had but for the negligence. The key issue was whether the pre-existing care needs were qualitatively different from those caused by the negligence or whether they were merely quantitatively different. The CA found they were only quantitatively different and therefore D was only liable for C’s increased care requirements. In future parties will doubtless pay careful attention to whether losses are qualitatively or quantitatively different as a result of negligence adding to a pre-existing condition. Causation and the Burden of Proof Graves v Brouwer [2015] EWCA Civ 595 concerned a house fire of unknown cause. Mr Brouwer set fire to a small bundle of papers in the passageway next to his house. Very shortly afterward the roof of his neighbour’s house caught fire. The experts agreed that the chances of an ember from the papers travelling to the eaves of the building and starting a fire were very low but, absent arson, were unable to come up with a more probable cause. The judge rejected arson as fanciful and found that, while the flying ember theory was scientifically improbable, the Claimant succeeded on causation. The Court of Appeal overturned her decision saying she had failed to ask herself the ultimate question whether the flying ember theory was more likely or not to be true. The fact that no other possible causes were identified, in large part because there was no investigation at the time, did not make it more probable than not the fire was caused by a flying ember. As Roderick Abbot observed in his blog post “Sherlock Holmes in the Court of Appeal”, the exercise is not one of identifying the least unlikely cause. The Claimant had failed to discharge the burden of proof and that was all the judge was required to find. Quantum Billett v Ministry of Defence [2015] EWCA Civ 773 concerns how courts should assess damages for loss of future earning capacity in circumstances where the claimant suffers from a minor disability, is in steady employment and is earning at his full pre-accident rate. Should the court follow the traditional Smith v Manchester approach or should the court use the Ogden Tables, suitably adjusted? C suffered from a minor Non Freezing Cold Injury (“NFCI”) which had a substantial impact on his day to day life in cold weather. The condition had less impact on his work as a lorry driver than it had on his leisure activities. The judge found that his loss of future earning capacity should be assessed by using Ogden Tables A and B, suitably adjusted, not by applying Smith v Manchester.  The CA upheld his decision that C had a minor disability clarifying that where a court considers whether an injury substantially limits a claimant’s ability to carry out normal day-to-day activities, the enquiry should be directed at what the claimant cannot do rather than what he can do. The CA overturned the judge’s decision to use the Ogden Tables: unadjusted they produced an unrealistic future loss; adjustment however was a matter of broad judgment which was no more scientific than the approach in Smith v Manchester. The judgment still leaves open the question when a disability becomes serious enough to engage the approach in Ogden Tables A and B and when and how those might be adjusted.  However as Andrew Spencer said in his blog on this case (Loss of future earnings and disability) the case is strong authority for retaining the Smith v Manchester approach in cases of minor disabilities with little effect on the claimant’s chosen career. Athens Convention In South West Strategic Health Authority v Bay Island Voyages [2015] EWCA Civ 708 the CA considered two issues relating to the Athens Convention (which governs personal injury to passengers at sea). The first was whether it extended to claims against carriers for contribution to liability of others and the second was the effect of the time bar prescribed by the convention. Dr Feest was injured in a boating accident in the Bristol Channel. The carrier was Bay Island Voyages (“BIV”). Dr Feest’s first firm of solicitors failed to issue against BIV within the 2 year time limit under the Convention and so she sued her employer SWSHA on the basis the accident occurred in the course of her employment. SWSHA joined BIV who successfully applied to have the Part 20 proceedings struck out. The Court of Appeal found that the provisions of the convention were not directly applicable to SWSHA’s claim against BIV. It also found that the time bar in Article 16 did not extinguish the cause of action but only barred the remedy: this was critical for SWSHA’s contribution claim as, if the limitation provisions had extinguished the right to bring the claim, under the provisions of the Civil Liability (Contribution) Act 1978 SWSHA could only have brought a claim within 2 years of the accident. Ian Miller, who represented SWSHA with John Ross QC, blogged on the case: “Contribution, limitation and the Athens Convention.” Jurisdiction Brownlie v Four Seasons Holding Incorporated [2015] EWCA Civ 665 involved the application of the Canada Trust gloss and a novel question about where damage in a tort claim was sustained. C bought an off package excursion in Egypt in which her husband was killed and she was injured. She booked the excursion by making a telephone call in England to the concierge at the hotel in Egypt. After the accident she brought proceedings in the High Court in contract and tort. She brought three tort claims (1) in respect of her own injuries; (2) as a dependant of her husband and (3) for the loss suffered by her husband’s estate. On appeal the court of appeal, applying the Canada Trust gloss – which is well set out and explained in the judgment - found that there was a good arguable case as to the identity of the defendant and as to whether the contract was made in England. This was not novel point of law: it was merely a finding that it was likely that C had called the concierge with proposals and he had accepted them. Given a contract for an excursion is made at the place where the words of acceptance are received, the contract was made in England. The novel point of law considered by the CA was the question of whether damage was sustained within the jurisdiction for the purposes of C’s claim in tort. This is the requirement of paragraph 3.1(9)(a) of the Practice Direction 6B (the tort gateway) for permission to serve out of the jurisdiction. The CA held the jurisdictional gateway should be interpreted consistently with Rome II and therefore the country in which the damage occurs should be the country where the injury was sustained regardless of the country in which the indirect consequences could occur. Thus the Claimant’s personal claim and the claim on behalf of the estate should be brought in Egypt. However, the dependency claim under the Fatal Accidents Act 1976 was not properly described as a consequential loss it was an independent loss and so the Claimant had shown a good arguable case that English law should apply to this claim. Matthew Chapman who appeared in this case with John Ross QC has blogged on it here. Duties of care and mental impairment In Dunnage v Randall [2015] EWCA Civ 673  the Defendant (“V”) was a paranoid schizophrenic who poured petrol over himself and ignited it, injuring his nephew the Claimant. V’s mental state was agreed to be grossly impaired. On a spectrum between completely healthy volition and absent volition he was at least 95 per cent impaired and probably 100 per cent absent volition. A number of helpful points arise from the three lengthy judgments given. First, the court rejected any need to differentiate between mental and physical impairment. Second, a person with a mental impairment owes a duty of care. Third, the standard of care should not be adjusted to take account of the personal characteristics of the Defendant, it is purely objective. Fourth, only Defendants whose attack or medical incapacity has the effect of entirely eliminating any fault or responsibility for the injury can be said not to have broken their duty of care. The Claimant’s appeal was therefore allowed. Interestingly the court noted that insanity is a defence in crime because criminal law is punitive whereas the function of the law of tort is to compensate victims. Vicarious Liability In Graham v Commercial Bodyworks Ltd [2015] EWCA Civ 47  the court had to determine whether an employer was vicariously liable for the acts of an employee who sprayed a co-worker’s overalls with thinning agent and then set them alight causing him considerable injury. Having looked at the Canadian authorities in sex abuse cases, the court considered that the starting point was to examine whether there was a close connection between the creation or enhancement of a risk by the employer and the wrong that accrues therefrom. In this case the employers created a risk in requiring their employees to work with paint thinners but there was not a sufficiently close connection between that risk and the wrongful act. The wrongful act did not further the employer’s aims and it was not related to friction, confrontation or intimacy inherent in the employer's enterprise. Where the employment does not require the exercise of force and there is no inherent friction, intentional conduct in the workplace, whether horseplay or more serious acts, will not normally give rise to vicarious liability. Vicarious Liability and Non-Delegable Duties The Court of Appeal in NA v Nottingham County Council [2015] EWCA Civ 1139 held that a local authority was not vicariously liable for the abuse of a child by the foster carers with which it placed her, nor did it owe her a non-delegable duty to protect her from harm. The relationship between the local authority and the foster carers was not sufficiently akin to one of employment to give rise to vicarious liability. On the issue of a non-delegable duty all three members of the court of appeal gave different reasons summarised in our November 2015 PI Briefing. In brief, Tomlinson LJ held that the local authority had discharged rather than delegated its duty in placing the child with foster carers. Burnett LJ held that what the Claimant sought to do was to expand the common law imposing a strict duty on local authorities on the basis that foster parents were not always able to satisfy a claim. Black LJ held that it would not be fair just and reasonable to apply such a duty; in fact it would be unreasonably burdensome and potentially harmful if it led to over cautious practice.  

Autumn Statement for PI Lawyers

The government has released a summary of the Autumn Statement with 20 Key Announcements, the last of which will be of great interest to personal injury lawyers. It reads as follows: “20. People will no longer be able to get cash compensation for minor whiplash claims To make it harder for people to claim compensation for exaggerated or fraudulent whiplash claims, the government is ending the right to cash compensation. More injuries will also be able to go to the small claims court as the upper limit for these claims will be increased from £1,000 to £5,000. This means that annual insurance costs for drivers could fall by between £40 to £50 a year.” George Osbourne anticipates these changes “will remove over £1bn from the cost of providing motor insurance” and expects insurers to pass on that saving to consumers. There had already been speculation over the last week that the government was going to introduce its previously shelved plan to increase the small claims limit for personal injury claims when the insurance fraud taskforce reported next month. What is surprising though is the reference to “ending the right to cash compensation”. It is as yet unclear what it meant by this. Footnote 55 to the Autumn Statement gives some clarification by explaining that “Claimants will still be entitled to claim for ‘special damages’ (including treatment for any injury if required and any loss of earnings) but entitlements for general damages will be removed.” It will be interesting to see though how it will be decided that a case falls into the category in which there is no entitlement to general damages. Elsewhere in the Autumn Statement is a statement that the government will reduce the excessive costs to insurers of whiplash claims by “removing the right to general damages for minor soft tissue injuries”. This would seem to cover more than just whiplash injuries. There may also be interesting arguments where multiple injuries are involved. These problems are unlikely to be straightforward and may result in substantial argument, inevitably using court time. It seems likely we will have to wait for the report of the insurance fraud taskforce, due before the end of the year, for further details.  Keen readers who can’t wait until then might be interested in the research briefing published in advance of last Wednesday’s debate in Parliament. Otherwise, watch this space!

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.

Quantity not quality

The decision of Foskett J in Reaney v University Hospital of North Staffordshire NHS Trust  [2014] EWHC 3016 (QB) (rightly) caused some excitement in the legal blogosphere when it was handed down in October 2014. It appeared that he had extended the familiar eggshell skull rule by holding that a Defendant who had injured a woman with pre-existing care needs was liable to compensate for her full care needs not just the additional needs. That decision has now been overturned by the Court of Appeal [2015] EWCA Civ 1119  who draw a useful distinction between qualitatively and quantitatively different care needs. The Facts Mrs Reaney, was admitted to hospital in December 2008 with transverse myelitis. As a result she was permanently paralysed below the mid-thoracic level and classified as a T7 paraplegic. It was common ground that this was not caused by any negligence. As a result of a prolonged hospital stay she suffered pressure sores. It was admitted that this was caused by the Defendant’s negligence. As a result of the transverse myelitis she was always destined to be confined to a wheelchair for the rest of her life. It was found that but for the development of the pressure sores, the Claimant would have required some professional care, increasing as she got older. But as a result of the pressure sores and their resulting complications, she would require 24/7 care from 2 carers for the rest of her life. The Decision of Foskett J Foskett J with reference to Paris v Stepney Borough Council [1951] A.C. 367 held at ¶69 that while a Defendant is only liable to compensate for damage which he has caused or to which he has materially contributed, where he has made the Claimant’s position substantially worse he must make full compensation for that worsened condition. He therefore concluded that she was entitled to full compensation for all her care, physiotherapy and accommodation costs, including the care she would have required but for the negligence. The Decision of the Court of Appeal This conclusion was firmly rejected by the Master of the Rolls who held at ¶18 that the tortfeasor must compensate for the condition in which the Claimant finds herself only to the extent that it has been worsened by the negligence. The rule that a Defendant must take his victim as he finds him is, as the Defendant had argued before Foskett J (¶53), sometimes to a Defendant’s disadvantage and sometimes to their advantage. A Defendant who injures someone with a pre-existing vulnerability, such as the famous eggshell skull, is liable for the full loss flowing from his negligence. However, in this case, it was right that the loss should reflect that the Defendant had injured a T7 paraplegic who already had significant care needs. In fact before the Court of Appeal it was, perhaps surprisingly, common ground between the parties that if the Defendant’s negligence gave rise to substantially the same kind of care and other needs as her pre-existing needs, then the damage caused by the negligence was only the additional needs. However, if the care needs flowing from the negligence were qualitatively different from the pre-existing needs, then those needs were in their entirety caused by the negligence. This view was endorsed by Dyson MR at ¶19. The Claimant’s unsuccessful case on appeal was, therefore, that Foskett J had found the care needs arising from the tortious act to be qualitatively different and so there was no need to disturb his overall conclusion. The Master of the Rolls dealt with the question raised as to the position where there was no means of recovery of the underlying loss. He was firm that the ability to recover for the underlying loss was irrelevant and that a person can only ever be liable for the loss they have caused. Comment At first blush the Court of Appeal’s decision appears to have brought welcome clarity. Foskett J’s judgment, while perhaps giving an attractive result, was not easy to reconcile with the earlier authorities. However, as shown by the point taken by the Claimant before the Court of Appeal, it leaves open significant scope for argument as to when a care need is qualitatively different from pre-existing needs. Those advising both Claimants and Defendants will in future cases of this sort want to scrutinise carefully the differences between the care packages and be ready with arguments as to why those differences should be found to be qualitative or quantitative as appropriate. Finally, as unattractive as this result might seem, there is still nothing to stop a court applying the principle in Paris v Stepney Borough Council and making a higher award for PSLA to reflect the fact that the consequences of injury may be substantially worse for an already injured person.

Edward Bishop QC considers obstacles in claims for psychiatric damage

In Speirs v St George’s Healthcare NHS Trust (Unreported, December 2014) a mother claimed damages for psychiatric injury which she said had arisen as a result of the shock of seeing one of her daughters who had been seriously damaged during an instrumental ‘ventouse’ birth. The judge dismissed the mother’s claim on the grounds that she had not suffered a psychiatric injury as a result of the ‘event’ identified by the claimant. In an extremely helpful article, Edward Bishop QC, who appeared for the Defendant in Speirs, sets out what a secondary victim must prove to establish his or her claim. Namely: A close tie of love and affection with the person killed, injured or imperilled Physical proximity to the incident in time and space Direct perception of the incident That he or she suffered a recognised psychiatric illness as a result of witnessing a sudden, shocking event. As he says in his article, it is (d) which has arisen for particular consideration in recent case law. He goes on to examine the questions “did seeing the ‘event’ cause a ‘recognised psychiatric illness? What is meant by ‘an event’? And how ‘shocking’ must it be?” The article has been published in the October 2015 1 Chancery Lane Personal Injury Briefing and can be accessed via this link.

Health and safety and self-employment – where do the boundaries lie?

Regular readers of the piblawg will no doubt recall previous posts discussing the various implications of the Lofstedt report . Published in November 2011, it is of course more correctly referred to as the “Reclaiming Health and Safety for All Review”.  It included a large number of suggested reforms, all aimed at “reducing the burden of health and safety regulation on business, whilst maintaining the progress that has been made in health and safety outcomes”. To date, perhaps the most high profile (and significant) of its implications was of course the Enterprise and Regulatory Reform Act 2013 and its abolition of civil liability for breach of duty under health and safety regulations. We are of course now almost two years on from the coming into force of those changes. Despite this, questions as to what practical effect this change might ultimately have on personal injury practice remain unanswered as yet. It appears likely that further issues may soon arise, with another of the Lofstedt report’s recommendations about to enter into force on 1st October 2015. This is as a result of the coming into force of the Health and Safety at Work etc. Act 1974 (General Duties of Self-Employed Persons)(Prescribed Undertakings) Regulations. The Regulations are very short (hardly longer than their rather verbose title) and have only one practical purpose. This is to exempt the self-employed from the application of health and safety legislation. In this context, this refers to  obligations arising under the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999.  As a result, health and safety legislation will no longer apply to anyone who is self-employed unless their work activities “may pose a risk to the health or safety of another person (other than the self-employed person carrying it out or their employees)” Certain activities will not be treated as exempt activities, irrespective of whether or not they are being carried out by a self-employed person. In those circumstances, the existing regulatory framework will continue to apply. Work activities that will not be affected by the 2015 Regulations for this reason are identified within its Schedule. Essentially, they include what the HSE refers to as “high risk” activities. These are those involving: (1) agriculture and forestry; (2) work with asbestos or involving the sampling of it; (3) construction, including any activity giving rise to duties under the Construction (Design and Management) Regulations 2015; (4) any work to which the Gas Safety (Installation and Use) Regulations 1998 applies; (5) the “contained use” of genetically modified organisms; and (6) the operation of a railway. It seems unlikely that the description of any of these activities as potentially giving rise to a risk to the health and safety of another is likely to be contentious. What is rather harder to work out is who can (and should) assert that their work activities do not pose a risk to the health and safety of another and that they are thus outside the scope of more extensive regulation. The HSE estimate that 1.7 million people will fall within this category, but working out which side of the line a particular individual might fall is going to be more problematic and, inevitably, is going to provide fertile ground for argument. Putting aside questions of probability and foreseeability, pretty well any work activity might plausibly give rise to risks to others. Presumably therefore, although the Regulations do not actually contain any wording to this effect, the words “may pose a risk” is to be read as indicating that there is a threshold level of risk below which it can be treated as non-existent. Quite where that boundary might lie in practice is however harder to determine. For obvious reasons, there are not yet any decided authorities on the point and presumably will not be for some time to come. Nor is the HSE’s own guidance especially helpful. On the one hand, it suggests that the possibility that someone might be “burnt, scalded, crushed, trip over or fall” will mean that the threshold level of risk has been crossed and that the exemption will not be available. This is understandable. What is perhaps harder to understand is why it is then suggested that a baker working from home would not now be caught within the scope of health and safety law. This uncertainty is not only going to be problematic for personal injury lawyers dealing with these cases at some point in the future. In the very near future, many self-employed people are going to have to elect whether or not to treat themselves as outside the ambit of this area of regulation. Whilst the answer may be obvious in many cases, for those whose activities are perhaps closer to the line, the decision as to whether or not to ignore some more onerous requirements may be a difficult, costly and unwelcome one. Is the making of that decision merely one form of bureaucracy taking the place of another? Normal 0 false false false EN-US JA X-NONE It seems naïve to think that such a decision is not going to be the subject of regular challenge in the aftermath of an accident. Even if ultimately vindicated, the time, effort and money involved in having to deal with the inevitable consequences of this uncertainty are hardly consistent with the stated aims of the Lofstedt Review. Moreover, where individuals are found to have been in error in treating themselves as being outside the scope of more extensive regulation, the price of making the wrong call on this might be considerable…

Are there discernable trends in the RTA claims sector?

How effective have recent reforms been in reducing the number of road traffic injury claims and their associated costs? The Institute and Faculty of Actuaries reports there has been a slight rise in claims by 1.7% between 2013 and 2014 which is less than suggested by the portal where claims notifications are back to pre-LASPO* levels. Average costs of claims are also increasing again (by 3%). These conclusions are drawn by the Institute’s interim findings on 2014 data. The number of claims fell by 9.9% between 2012 and 2013 which is consistent with MoJ Portal Statistics. The reduction in average costs in 2013, following the introduction of LASPO, was 15%. Understandably, however, the Institute says that the long-term effects of legal changes (such as those introduced by LASPO) remain uncertain. The turnover of authorised personal injury claims management companies reduced from £455m in the first quarter of 2012 to £354m in the same quarter in 2013 and then to £238m in 2014. However the first quarter of 2015 saw turnover rise by 30% to £310m. Meanwhile motor insurance premiums have risen by an average of 2% per year between 2008 and 2015. That said, the first quarter of 2015 has demonstrated a reduction of 0.5%. Such reports will undoubtedly be watched carefully by all sides for trends and the government will want to tighten the system if it does not think it reducing costs can claims enough. At the moment the long term trends are not readily discernible. This may mean that the system will remain as it is for at least the short term. The report is packed with further data: Average car mileage per year has fallen by 11% since 2003 The total number of licensed cars has risen by 13% since 2003 The total mileage driven in 2014 is back to the 2003 level Congestion has increased year on year since 2011: the average speed in 2014 was 24.1 mph In 2014 there was a total of 194,477 casualties as a result of road traffic accidents In 2014, 1775 were killed, 22,807 were seriously injured and 169,895 slightly injured Pedestrians, pedal cyclists and motorcyclists account for disproportionately more casualties than would be expected given the distance travelled Liverpool remains the claims capital of the UK with 55% of claims arising out car accidents involving damage to property of another driver also involving a claim for personal injury (the national ratio is just above 30%). The lowest ratio of personal injury claims to property damage claims is in Scotland (20%) The highest ratios are in the North East (33%) and the North West (43%) The full report can be viewed via this link *LASPO - Legal Aid, Sentencing and Punishment of Offenders Act which came into force on 1st April 2013

Scrutiny of Medical Evidence & Physiotherapy Charges in low-value PI cases

I recently acted for an insurer in a routine low value personal injury case (to which QOCS applied) which had an unusual twist.   The claimant claimed damages for neck injuries sustained in a road traffic accident. He signed the Particulars of Claim which were vague as to the description of his injury, but which made reference to an appended medical report. The medical report was of the lamentably short “tick box” variety and concluded that the claimant had sustained a “soft tissue neck injury which resolved in around five months”. At the time of the examination by the GP expert around three months post-accident, the claimant complained of some ongoing symptoms.   Well, the Claimant’s social media persona begged to differ. The Defendant’s online sleuths obtained evidence that the Claimant actually undertook a half marathon a few days post-accident and an ‘Iron Man’ a few weeks after that. This was at a time when the medical report suggested that the Claimant’s symptoms were most acute (“moderately-severe” – whatever that means!).   The Claimant submitted a Notice to Discontinue.   His solicitors came off the record as acting for him.   The Defendant applied to have the Notice of Discontinuance set aside.   On the day of the listed hearing, the Defendant’s solicitors received a remarkably candid witness statement from the Claimant, who had procured the services of a direct access counsel. This expressed a great deal of regret for what had occurred and made a large number of serious allegations against the claimant firm of personal injury solicitors including: that the firm aggressively pursued the Claimant to encourage him to litigate when he was reluctant; indeed, that the firm “reminded” him that he may have sustained an injury despite his being unaware of it at the time and/or drawing any causal link with the index accident; that despite the Claimant telling the firm that his injury resolved in “about one week” she was pressured into attending physiotherapy sessions; the said physiotherapy sessions were arranged by the solicitors without any reference to any medical opinion; and he was persuaded to sign the Particulars referencing the medical report despite knowing the conclusion of the doctor therein to be incorrect. (This does not explain the complaints of ongoing symptoms however!).   The Claimant settled with the Defendant insurer with a Strike Out on the grounds of Abuse of Process by consent ant the payment of costs, however the case throws into an unpleasantly harsh light the tactics which many who may represent insurers and indeed the insurers themselves have long since suspected are employed by some less scrupulous law firms.   The lesson for such firms is of course obvious, but those for legal professionals representing defendant parties can be distilled thus in cases where the medical evidence appears formulaic (i.e. in the majority of routine Fast Track cases, particularly now costs for the provision of such evidence have been limited by the CPR): defendants should be less prepared to accept the conclusions of medical professionals as face value; claimants ought to me more rigorously cross-examined on the duration and significance of their symptoms; charges for physiotherapy charges should be more stringently scrutinised. These frequently are “evidenced” by invoices made out to the solicitors. Without further evidence of under what mechanism the claimant party is expected to meet these, they are arguably unproven losses. This may raise consumer credit points of course and potentially wider issues in cases where it transpires there is a connection between solicitors and physiotherapy providers. In my experience it is not unusual for the claimant to deny receiving such treatment or as many sessions as claimed for; the chronology also should be more carefully looked into. Perhaps Part 35 Questions should ask when was physiotherapy recommended and by whom? If it was the (medically-unqualified (and often formally legally-unqualified) “solicitors”, can the fact that a subsequent medical report makes reference to this in the “treatment received” section, undermine such a report or seriously be said to pertain upon its conclusion?

Contribution, limitation and the Athens Convention

In South West Strategic Health Authority v Bay Island Voyages [2015] EWCA Civ 708 the Court of Appeal considered the scope of the Athens Convention and the nature of the time-bar in Article 16. In coming to its decision, the Court also considered sections 5(1) and 5(2) of the Carriage by Air Act 1961. In the main action, Dr Feest claims damages for personal injury arising out of an accident which occurred whilst she was a passenger on board The Celtic Pioneer in the Bristol Channel. Her original solicitors missed the two-year time limit for bringing claims under the Athens Convention against the carrier ('BIV'). She issued proceedings against her employer ('SWSHA') one day before the expiry of the three-year time limit under section 11 of the Limitation Act 1980. SWSHA brought a claim for contribution against BIV which was struck out by the district judge. His order was upheld on appeal.  The first issue for the Court of Appeal was whether claims for contribution are encompassed by Article 14 of the Convention which states “no action for damages for the …personal injury to a passenger… shall be brought against a carrier…otherwise than in accordance with this Convention.” On appeal, HHJ Havelock-Allan QC held that Article 14 encompassed contribution claims ([2014] EWHC 177 QB). The Court of Appeal disagreed. The Athens Convention only claims to unify ‘certain rules relating to the carriage by sea of passengers and their luggage’. It is not a complete code and does not encompass contribution claims which are autonomous and derive from the Civil Liability (Contribution) Act 1978. In reaching this conclusion the Court looked at Australian, US and Canadian cases on the equivalent provisions under the Warsaw and Montreal Conventions. The Court of Appeal then considered the nature of the time-bar under Article 16. The importance of this is that SWSHA would not have had a claim for contribution against BIV under the Contribution Act if the effect of Article 16 was to extinguish the cause of action rather than bar the remedy. The Court found that the effect of the words of Article 16 in the light of Financial Services Compensation Scheme Limited v Larnell (Insurances) Limited (in liquidation) [2006] QB 808 (which considered the similarly-worded section 14B of the Limitation Act 1980) was to bar the remedy – unless there was an international consensus upon the understanding of the provision. The Court looked at the French text and concluded that the natural meaning of the French words was to bar the remedy. This understanding was also consistent with language (‘Verjaehrungsfrist’) used in the German Commercial Code. Accordingly Article 16 operated to bar the remedy and not extinguish the cause of action and therefore SWSHA’s contribution claim survived. In reaching their conclusion on Articles 14 and 16 the Court of Appeal also looked at section 5(1) and 5(2) of the Carriage by Air Act 1961 which incorporates the Warsaw and Montreal Conventions into UK law. Of note is its comment that section 5(1) provides a time limit for actions against carrier’s servants or agents, which actions are not themselves within the scope of the Warsaw Convention. John Ross QC and Ian Miller of 1 Chancery Lane acted for the successful appellant.

Car vs Cyclist: Apportionment of liabilty

Fenella Sinclair (A protected person by her litigation friend & daughter) v Rachel Joyner [2015] EWHC 1800 (QB). The Claimant was cycling along a rural road. She was in the middle  of the road, standing on her pedals. She was not wearing a helmet. The Defendant was driving her car along the same road in the opposite direction. She had just come around a bend when she saw the Claimant. She had not been travelling very fast before the bend and she immediately slowed down to around 20 mph. That was the speed she was travelling when she passed the Claimant. Her evidence also was that she was as far over to the nearside of her lane as possible. As the car and and the bike passsed one another their wheels collided.  The Claimant lost control and fell.  She suffered multiple injuries, including a severe brain injury. She was left with a permanently impaired conscious level. The trial was liability only. The Claimant's case was that the Defendant had not kept a proper look out and had failed to properly assess the hazard presented by the Cliamant who was in the middle of the road stadning on her pedals. The Defendant maintained that as she approached and past the Claimant she was driving slowly and appropriately. She reasonably considered the Claimant to present a hazard which required her to do no more than slow down and drive past her. The Claimant lost control of her bike and deviated unexpectedly onto the Defendant's side of the road so that contact occurred. She (the Defendant) was not responsible for that. Mrs Justic Cox held: 1. The courts must not fall into the trap of imposing a counsel of perfection on car drivers. 2. Nevertheless, cyclists are amongst the most vulnerable of road users. The Highway Code expressly says so and advises car drivers to give them plenty of room. 3. The Claimant was on her side of the road but only just. She was also standing on her pedals. The evidence suggested that she was grimacing or loooking uncomfortable. 4. In all the circumstances, a reasonably prudent driver would have appplied the brakes immediately and stopped to allow the Claimant to pass safely. The Defendant did not do that and primary liability was therefore established against her. 5. In terms of contributory negligence, the Claimant should not have been riding in the middle of the road. Her conduct in doing so materially contributed to the damage and was negligent. 6. In assessing apportionment: "The causative potency of the motor vehicle is highly significant in assessing apportionment. There was a risk of very serious injury to the Claimant in this case if the Volvo were to collide with her...the appropriate apportionment of fault for the Claimant in this case is 25 per cent" 7. The Defendant had pleaded that failure to wear a helmet was contributorily negligent. It was not explored in evidence, however, and was not addressed in the Defendant's closing submissions. The judge said that there was no medical evidence adduced to show that failure to wear a helmet had made the injury worse. The allegation was therefore rejected.   Comment This strikes me as placing really quite an onerous burden on drivers. After all, the Claimant was in the middle of the road, on her pedals and approaching a bend. The Defendant was not speeding, she slowed down and she was as far over to the nearside as possible. To suggest that she ought to have stopped completely seems too high a requirement. The case is also worth a read because it involved live evidence from the parties' accident reconstruction experts. The Defendant's expert appears to have been so poor in evidence that, ultimately, counsel did not rely on him. The judge thought this was wise and was critical of his report and his oral evidence.   Sophie Mortimer