piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

New law - fundamental dishonesty in PI claims

The government brought into force last week a new law preventing claimants from recovering damages for personal injury when they have been fundamentally dishonest, unless it would cause substantial injustice. In the case of Summers v Fairclough Homes Ltd  [2012] UKSC 26 the claimant was injured in an accident at work and claimed more than £800,000 from his employer. Surveillance revealed him to have grossly exaggerated the effect of his injuries. At trial he was found to have fraudulently misstated the extent of his claim but the judge declined to strike out his claim and awarded £88,716. The defendant appealed and the Supreme Court held that it had jurisdiction to strike out the claimant’s statement of case but that it would only be done in exceptional circumstances, not least as the judgment on liability amounted to a possession for the purposes of the ECHR. The claim was not struck out. Section 57 of the Criminal Justice and Courts Act 2015 looks as though it would have changed the outcome of Summers dramatically. Here are some of the ingredients and likely problems: ‘fundamental dishonesty’ - the defendant has to prove on the balance of probabilities that the claimant has been ‘fundamentally dishonest’  - a concept which the courts have been grappling with since its introduction in CPR Part 44.16(1) as an exception to the rules on qualified one way costs shifting. Considerable uncertainty remains as to the difference between ‘dishonesty’ and ‘fundamental dishonesty’. ‘primary claim or a related claim’ – the fundamental dishonesty must be ‘in relation to the primary claim or a related claim’. It will be interesting to see how far the courts will go in construing ‘a related claim’ which is defined at s.57(8) as “a claim for damages in respect of personal injury which is made (a) in connection with the same incident or series of incidents in connection with which the primary claim is made, and (b) by a person other than the person who made the primary claim.” ‘application by the defendant’ - the court cannot dismiss the claim under s.57 unless an application is made by the defendant for its dismissal. ‘substantial injustice’ – the court ‘must dismiss the primary claim’ unless satisfied the claimant would suffer ‘substantial injustice’ if it were dismissed. Again, it is not clear what the difference is between ‘injustice’ and ‘substantial injustice’. How is a judge to decide? Would the depriving a claimant of £88,716 amount to a substantial injustice? It is likely that the courts will want to give very careful thought to the needs of the injured claimant (care, economic etc) and consider how well they will be met in the event that the money is not paid over. What will happen to claims for gratuitous care which a claimant is supposed to hold on trust for the providers of that care? They may have nothing to do with the claimant’s dishonesty and yet might find themselves deprived of thousands of pounds for the hours they have given. I anticipate that a large body of case law will quickly grow up around this section. Recording damages – the court must record the amount of damages it would have awarded the claimant and then deduct them from the amount it would otherwise have awarded the defendant in costs. The dismissal of the claim under s.57 must be taken into account in a sentence handed down in any subsequent criminal proceedings S.57 only applies to claims issued after 13th April 2015. Mr Summers may well have been £88,716 poorer had this section been enacted prior to the issue of his proceedings. It will be interesting to see how often section 57 is pleaded and what the courts make of the concepts of ‘fundamental dishonesty’, ‘substantial injustice’ and ‘related claims’.

Personal Injury and the Party Manifestos

Is there anything in the parties' manifestos which might affect the field of personal injury? Reforms since 2010 include a new fixed costs regime, costs management/budgeting and greatly increased court fees. Civil liability has been removed for breaches of health and safety regulations. But what is being promised for the future? The Conservative Manifesto includes a pledge to reform human rights law. It would scrap the Human Rights Act and introduce a British Bill of Rights. The intention is that this will break the formal link between British Courts and the European Court of Human Rights making the Supreme Court the ultimate arbiter of human rights matters in the UK.  More is said in the section on the European Union: the Bill will remain faithful to the basic principles of human rights but “will reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of wider society.” The manifesto also pledges to continue “the £375 million modernisation of our courts system, reducing delay and frustration for the public.” A commitment is also made for an ongoing review of legal aid. The Labour Manifesto takes the opposite view on the Human Rights Act. It states that Labour would protect it and reform rather than walk away from the European Court of Human Rights. The manifesto is silent on what that reform would be. The manifesto also includes a pledge that access to legal representation would not be determined by personal wealth but would remain available to those who need it. The Liberal Democrat Manifesto states that the Liberal Democrats would protect the Human Rights Act and enshrine the UN Convention on the Rights of the Child in UK Law. It specifically states that the Liberal Democrats would take “appropriate action to comply with decisions of the UK courts and the European Court of Human Rights.” The Liberal Democrats have a commitment to introduce a Freedoms Act which would “cut back on the petty over-regulation of everyday life… permitting swimming in open bodies of water.” (Tomlinson v Congleton springs to mind…). They would “carry out an immediate review of civil Legal Aid… and court fees, in consultation with the judiciary…” They would “reverse any recent rises in up-front court fees that make justice unaffordable for many, and instead” spread the fee burden more fairly. They would also retain access to recoverable success fees and insurance premiums in asbestosis claims and where an individual is suing the police. There is also a pledge to support innovation like the provision of “civil justice online” and expansion of ADR. The UKIP Manifesto states that the burden of complying with EU laws on health and safety can be overwhelming for small firms. The manifesto has a commitment to repeal EU Regulations which stifle business growth. As to human rights, UKIP would remove the UK from the jurisdiction of the European Court of Human Rights and make the UK’s Supreme Court the final authority on matters of human rights. It would repeal the Human Rights Act and introduce a UK Bill of Rights which would complement the UN Declaration of Human Rights and “encapsulate all the human and civil rights that UK citizens have acquired under UK law since Magna Carta.” The Green Manifesto states it will “move towards a written constitution with a Bill of Rights” it also has a commitment to keeping the Human Rights Act and retaining the UK’s membership of the ECHR. There is a pledge to “restore the cuts to Legal Aid, costing around £700 million a year” although it is not clear whether this has anything to do with personal injury. It is interesting that none of the political parties have a commitment to reinstate civil liability for breach of health and safety regulations made under the Health and Safety at Work Act 1974.   Trivia Comparative lengths of the manifestos: Conservatives:                 84 pages Labour:                            86 pages Liberal Democrats:          158 pages UKIP:                              76 pages Green:                              84 pages   Commitment requiring more explanation: “Ban high-frequency Mosquito devices which discriminate against young people.” (Liberal Democrats)

Employer not liable for employee killed in air disaster

Yesterday, Mr Justice Coulson delivered an extensive judgment in the case of Cassley and Others v GMP Securities Europe LLP & Sundance Resources Limited [2015] EWHC 722 (QB), in which he dismissed the claim for damages brought by the estate of the Deceased (James Cassley) against his employer (GMP) and its client (Sundance), an Australian mining company, who chartered the ill-fated flight. This case was heard only weeks after the decision in Dusek v Stormharbour Securities LLP [2015] EWHC 37 (QB) in which an employer was found to be liable for the death of its employee on facts that were superficially similar to the present. The judgment is of significance to the developing field of employer liability in negligence for death of and/or injuries caused by third party carriers to its staff when engaged in overseas travel. In particular, the judgment provides guidance as to the standards of care that are expected, and perhaps more significantly not to be expected, from employers. GMP were successfully defended by John Ross QC and Kiril Waite instructed by Berrymans Lace Mawer LLP. In 2010, Sundance had approached GMP, who were the London division of a Canadian investment bank, with a view to retaining their services in raising capital for its mining project in Nabeba, Democratic Republic of Congo. The Deceased was a corporate finance executive employed by GMP. He was invited to join Sundance’s board of directors on a private charter flight from Yaoundé, Cameroon to an airstrip used by the mine project in the Congo. Tragically, the flight never reached its destination. The aircraft struck the side of a mountain ridge some 70km short of the airstrip and all aboard were killed. The claim against GMP was brought both for breach of statutory duty and in negligence at common law, based on the non-delegable duties owed by an employer to its employee. The central allegation in the case was that GMP made no risk assessment and no enquiries into the air carrier chartered for the flight. It was asserted that, had they done so, the results of those enquiries would have led them to conclude that it was not safe for the Deceased to have boarded the flight to the Congo. Moreover it was contended that the risk assessment for this one-off trip ought to have been undertaken by an aviation consultant or auditor who also would have known what enquiries to make.   On the undisputed facts, there had been a last-minute change in the air carrier for the flight to the Congo, which GMP did not know nor could reasonably have been expected to know. Accordingly any risk assessment or enquiries made would have been in respect of the original carrier. The factual matrix was complicated by the fact that prior to the Deceased boarding the flight, Sundance required that GMP sign a confidentiality agreement which included a clause that purported to require that it would indemnify Sundance for any injury or death caused to the Deceased. That agreement was never properly executed and not therefore binding. In closing the Claimants sought to advance a new case on causation based on this agreement, namely that no reasonable employer, who had been asked to sign such an agreement, would have permitted its employee to board the plane. Coulson J found that whilst GMP was in breach of its own internal health and safety policy and had failed to make any enquiries about the flight with Sundance, who were the flight charterer, these failings did not amount to an operative breach of duty. He rejected the contention that a company such as GMP ought to have instructed an aviation consultant from the outset. In his judgment Coulson J gives consideration to the types of enquiries that a reasonable employer should make, such as consulting the FCO website. However on the facts of this case, those enquiries would have made no difference to the outcome. Ultimately the claim against GMP failed on causation. There was no evidence before the court that the original air carrier, which GMP had expected would be used, was anything but safe. Even assuming that GMP had found out about the last minute change in carrier, the results from any enquiries that it could reasonably have been expected to make would have led it to reach the conclusion that the substitute air carrier was a safe carrier choice for this flight. The Claimant's new case on causation based on the confidentiality agreement was also rejected by Coulson J. It was a complete non-sequitur for an employer faced with such a document to simply deny its employee entry on board the flight.  The claim against Sundance also failed on the ground that, although Sundance had assumed a duty of care to the Deceased, it had undertaken reasonable enquiries into the suitability of the substitute carrier it selected for the index flight. Claims against employers whose staff are injured or killed in aviation disasters have become something of a burgeoning area in the arena of employer’s liability. This judgment will provide valuable guidance to those involved in this expanding field of litigation.  

Records of Inquest: the conclusion is... use your boxes correctly and keep it succinct

For those of you practising in coronial law, the Chief Coroner's Guidance No. 17 was published on 30 January 2015. It contains some useful and succinct guidance on short form conclusions and narrative conclusions, including: how and when they should be used (as alternatives or together); the correct approach to the three stages of the conclusion (i.e. fact finding, box 3 of the Record of Inquest and box 4 of the Record of Inquest); standards of proof; and a summary of the 'ingredients' of the common short form conclusions. The guidance is by no means a full and comprehensive review of the law, but it certainly provides clarity and is likely to be a useful reference when dealing with submissions on conclusions.   The guidance can be downloaded at http://judiciary.go.uk/related-offices-and-bodies/office-chief-coroner/guidance-law-sheets/coroners-guidance/ 

“ .. Friends, Romans, personal injury lawyers ...!”

Or so Mark Antony might have said if Shakespeare had been around to reflect on the amendments to the CPR which come into effect on 6 April 2015. All the talk is of the changes to Part 36. But what of the new Part 87 which is being introduced as part of the continuing drive to replace Latin terms with simpler English language.   I confess to a fondness for Roman law having been made to study it as a student. I dutifully worked through “ius civile” (law of citizens), ius gentium (law of peoples) and other concepts. I learned about “ferae naturae-propter privilegium” (qualified property in animals) on which some modern legislation such as the Bees Act 1980 is based. Sadly I have not yet had the opportunity in practice to deploy this knowledge or what Justinian had to say about the sale of chariots and other “res corporalis”.   That is not to say that Roman law is irrelevant to personal injury lawyers.   Fairchild v Glenhaven Funeral Services Ltd and others [2002] UKHL 22; [2002] 3 All ER 305; [2003] 1 AC 32 is the seminal authority on indivisible injury in negligence cases. The claimants were negligently exposed to asbestos by multiple employers but were permitted to “leap the evidentiary gap” such that their employers were held jointly and severally liable.   Less well known are the references in Lord Rodger’s judgment to Roman jurisprudence and his observation [at §157] that “in a certain form, problems with unidentifiable wrongdoers had begun to exercise the minds of Roman jurists not later than the first century BC”. Lord Roger comments [at §158] on “D 9 2 51 Julian 86 digesta” written in the second century AD in which Julian discusses the “Lex Aquilia” and [at §159] on the later writer Ulpian in “D 9 2 11 2 Ulpian 18 ad edictum” both of whom considered the situation where a slave was killed by a number of people in such a way that it was impossible to say whose blow had caused his death.   On his way to finding causation proved in Fairchild, Lord Rodger notes [at §160] that “classical Roman jurists of the greatest distinction saw the need for the law to deal specially with the situation where it was impossible to ascertain the identity of the actual killer among a number of wrongdoers”.   The new Part 87 continue the process set in motion by Lord Woolf in June 1996 when he published his review of the civil justice system and writs gave way to claim forms, plaintiffs became claimants (although they remain plaintiffs in other jurisdictions such as Hong Kong) and hearings in camera would hence forth be hearings in private. Now, from 6 April 2015, habeas corpus “ad subjiciendum” becomes habeas corpus “for release”.   In “Beyond the Fringe” the great Peter Cook reflected that “I could have been a Judge but I never had the Latin for the judgin’”.   There is no longer any need for Peter or for others to worry.

Retiring gracefully ... and gradually?

Most personal injury lawyers think a lot about retirement. This can be their own, in my case usually when grappling with costs budgets, but is more likely to be that of the party whose claim they are advancing or opposing. The date of retirement is crucial to the value of a loss of earnings claim.   Most personal injury schedules claim full time working to age 68 or even 70. Most counter schedules contend for retirement at age 65.   However, new research shows the way people view retirement is changing. Nearly two-thirds of people aged over 50 no longer think that working full time and then stopping work altogether is the best way to retire and around half would still like to be in work aged between 65 and 70.   YouGov surveyed more than 2,000 retired and non-retired people aged over 50.   https://yougov.co.uk/news/2014/11/05/concept-gradual-retirement-attracts-non-retired-ad/   The survey showed:   39% of over 50s not currently retired said that working part time or flexible hours before stopping work altogether would be the best way to retire. 48% of those under 65 and not currently retired would still like to be in work between 65 and 70. 36% of retirees say their advice to others would be to “consider switching to flexible or part time work for a period first” before stopping work altogether. 33% of those over 70 and still working said they did so because they enjoyed it.   The survey also suggests that some non-retired people over 50 both in and out of work were ready to learn new skills. Nearly half (47%) said they were interested in attending training courses to learn new or to update existing skills.   There are lessons here for both schedulers and counter schedulers. An absolute retirement age of 65, 68 or even 70 may now be unrepresentative. Gradual retirement is increasingly the trend at least in England and Wales.   In “The Later Years of Thomas Hardy” (Macmillan, 1930), Florence Emily Hardy reports the author’s observation that:   “The value of old age depends upon the person who reaches it. To some men of early performance it is useless. To others, who are late to develop, it just enables them to finish the job”.   I cannot promise still to be working beyond age 70. If I am, I can promise it will not be on costs budgets!  

Holding out for the Heroism Bill

The Social Action, Responsibility and Heroism Bill (dubbed by some the “Sarah Bill”) is being returned to the House of Commons, with amendments, following its final reading in the House of Lords on 6 January 2015. The much-maligned and exceptionally brief Bill seeks to introduce a requirement that courts deciding negligence and/or breach of statutory duty cases and in determining the standard of care give consideration to whether the activity or omission complained of was for the benefit of society, whether the person carrying out the activity demonstrated a “predominantly responsible approach” in protecting a person’s safety or other interests and whether (in emergency situations) the person intervened “heroically”.   Clause 4 in particular makes clear that the Bill is aimed predominantly at personal injury cases, although it will apply to non-personal injury cases. Critics of the Bill have suggested that it is largely being promoted by the Government to further protect employers and to appease the insurance industry. Indeed, the Bill has been criticised on several grounds, mostly as being a mere publicity stunt by the Government but also for its vagueness. The Sarah Bill is designed to afford greater protection to volunteers and employers who might otherwise be deterred from performing worthwhile deeds or organising events due to the risk of finding themselves on the end of a negligence claim. The Bill survived an attempt in December 2014 at the Second Reading to remove most of its (four) clauses. At the Third Reading, clause 3 (the social responsibility clause) was amended such that (in assessing the standard of care) the individual’s approach towards protecting the safety and interest of others must have been “predominantly”, rather “generally”, responsible. Clause 4 was also amended, removing the words “and without regard to the person’s own safety or other interests” to make clear that the clause applies equally to those cases where the person (sorry, hero(ine)) assess  the risks to their own safety or other interests before intervening (as well as those where they did not assess the risks). The amended Bill will be considered by the House of Commons on 2 February 2015. If the Bill is passed, there are potentially difficult questions for the judges on the ground to answer. The Bill is somewhat unhelpfully brief and uses terms which are somewhat “foreign”. The first difficulty is going to be determining when a defendant’s action was “for the benefit of society or any of its members.” The clause has a potentially enormous scope. Employers, particularly in the public sector, are likely going to try to fit themselves under this clause. But even if they do, you may well ask, so what? It is only a factor for the judge to consider and is by no means a defence. There is no indication of what weight, if any, judges will place on this factor. Judges will also have to decide on what is meant under clause 3 by a “predominantly responsible approach” in protecting the safety or other interests of others. Again, the potential scope of the clause is vast. Will it apply, for instance, to all medical professionals? Will it apply to any attempt by an employer to introduce some health and safety measure? And what is the tipping point for an approach to be categorised as “predominantly responsible”? There is potential for a stream of cases on that issue alone, unless of course there is a judicial reluctance to engage with the clause and it goes the way of section 1 of the Compensation Act 2006. It is also questionable how many cases will fall under clause 4 (the heroism clause). But for those that do, what do we mean by acting “heroically”? This is an entirely foreign legal concept and is open to a sliding scale of judicial interpretation.  Are doctors acting “heroically” in emergency situations or will the clause only apply to the volunteer, have-a-go hero(ine) which the Government seems to have intended? The Bill, as is stands, is brief, vague and uses terms to which the legal world is not accustomed. Although cases might throw up interesting questions on how to interpret the Bill, one has to wonder whether it will all be for nought. Chris Grayling MP himself has said, "The bill will not change this overarching legal framework, but it will direct the courts to consider particular factors when considering whether the defendant took reasonable care." If judges do not engage with it or consideration of these particulars factors makes no material difference in practice, will defendants even bother to try to fit their cases under one of the clauses? Much like section 1 of the Compensation Act 2006, it will be judicial appetite that determines how effective the Bill’s clauses become. Given the criticism of the Bill in judicial circles, do not expect that appetite to be very strong.  

Prosecution of PI Fraud

Any regular reader of the PIBlawg will be aware that I have an interest in fraudulent personal injury claims, being involved as I am in numerous cases where a vast range of fraud is alleged by Defendant parties (also see http://bit.ly/1vRcuWT; http://bit.ly/1znwXHI; http://bit.ly/1GokHKm).   In recent years there appears to have been a change in culture of insurers, who are far more prepared to fight claims on the basis of that they are fraudulent. There have been many high-profile news articles suggesting that fraudulent road traffic accidents cost each motor insurance policy holder up to £100, but this is falling due to the rise in claims being run to trial alleging foul play: a pour encourager les autres approach?   The courts too appear now more prepared to commit PI fraudsters to prison, but recently the police and CPS stepped in to prosecute a man who deliberately "slipped" on a wet bag in a supermarket. Waheed Iqbal was seen on CCTV feigning a slip of a Lidl store in Bradford which is well worth a watch on the BBC website at http://www.bbc.co.uk/news/uk-england-leeds-30352231.   At trial at Bradford and Keighley Magistrates' Court, he was found guilty of two counts of fraud by false representation. He was sentenced at Bradford Crown Court to a 10-month jail sentence, suspended for two years.   The CCTV shows Mr Iqbal was wheeled out of the Lidl store to an ambulance but it is reported that an insurance fraud investigation team later found he asked the paramedics to stop before they reached hospital, alighting the vehicle unaided and returning straight back to the Lidl store to request the incident was reported.   It seemed that this may not have been Mr Iqbal’s first attempt at a false PI claim. The BBC reported that Police also discovered he staged another "accident" with a punchbag in a gym so he could make a PI claim.   This case must also represent another risk to would-be fraudulent PI litigants: even if for commercial reasons a committal is not pursued by a defendant insurer at the successful conclusion of a trial where fraud is found, the matter may well be taken up by the CPS.

Rome II and the Law of the Tort

Those with an interest in the Rome II Regulation (there must be someone else out there) may already be familiar with the recent decision of Slade J in Winrow v Hemphill & Anor. [2014] EWHC 3164 (QB). This short piece focuses on one aspect of the judgment. First, however, a quick recap. The claim arose out of a road traffic accident in Germany in November 2009. The Claimant was a UK national, domiciled in England, who was living in Germany at the time of the accident (having moved there with her British Forces husband several years before the accident). The Claimant returned to England around 18 months after the accident and continued to live in England at the time of trial. The First Defendant was also a UK national. She was also an Army wife and her husband served with the Army in Germany. The First Defendant, like the Claimant, later moved back to England. The Second Defendant insurer was registered in England/Wales. It was the insurer of the First Defendant at the time of the accident. The Claimant was a rear seat passenger in a vehicle driven by the First Defendant. The vehicle was involved in a head-on collision with a vehicle driven by a German national. It was not in issue that the accident was caused by the negligent driving of the First Defendant. Accordingly, liability was not in issue and judgment was entered. The parties continued (and continue) to fight the causation and quantum issues. The preliminary issue trial before Slade J concerned the applicable law of the tort and, more particularly, under Art. 15(c) of Rome II, the law to apply to the assessment of the damages to which the Claimant would be entitled: should damages be assessed, as the Claimant argued, according to English law (on application of Art. 4(3) of Rome II) or should they be assessed, as the Defendants argued, according to German law (by reason of Art. 4(1) of Rome II)? Slade J determined the preliminary issue decisively in the Defendant insurer’s favour: German law was to be applied. However, in the course of her judgment she stated (para 45 if you’re really interested), “I do not accept the contention ... that the circumstances to be taken into account in considering Article 4(3) will vary depending upon the issues to be determined and ... the stage reached in the proceedings. Nor do I accept the submission that ‘the centre of gravity’ of the tort when liability was conceded and only damages were to be considered depended upon circumstances relevant to or more weighted towards that issue.” The question I leave you with is why this is so. In Winrow liability was conceded and only causation and quantum remained to be dealt with. Most dispassionate observers would accept that causation and quantum were more closely connected to England (where the Claimant lived at the time of trial and was experiencing ongoing loss and where medico-legal experts were based) than Germany. If – as Art. 4(3) – directs” all the circumstances of the case” are to be considered in determining whether the tort/delict is more closely connected with one country (England) than another (Germany), it would seem artificial (at best) and, more ambitiously, wrong (in law) to put out of mind the fact that liability was no longer in issue and, therefore, was no longer a relevant consideration. Some of the textbook writers – particularly those wedded to a more certain/less discretionary approach to the identification of the applicable law of the tort – might (like Slade J) baulk at the approach advocated on behalf of the Claimant. However, there may – in this limited way – still be room for English common law inroads into (even) the Rome II regime so that some weight is given to the issues actually in dispute before deciding which law ought to be applied to them.

Compensating an injured foetus?

In what circumstances is an unborn child entitled to compensation for injuries caused by a mother? That is the question facing the Court of Appeal today. A mother drank heavily during pregnancy despite warnings from social workers and antenatal medical staff that it risked harming her unborn baby. The baby was born with foetal alcohol syndrome and has since suffered from developmental problems. The mother is no longer in contact with the child who is being cared for by a local authority. That authority brought a successful claim before the Criminal Injuries Compensation Authority on the grounds that the mother’s behaviour constituted the crime of poisoning under section 23 of the Offences Against the Person Act 1861. However the decision was overturned in the Upper Administrative Tribunal. The media reported that the Upper Tribunal’s decision was made on the grounds that an unborn child is not a person in law and therefore no criminal offence could have been committed. If the report is correct, this is a curious conclusion as a criminal offence can be committed against a foetus under the Infant Life (Preservation) Act 1929. It is easy to forget that the Abortion Act 1967 makes an exception to that law on child destruction where the provisions of the Act are complied with. One wonders whether the perhaps unspoken dilemma for the Upper Tribunal was that its decisions might beg the following question: if a criminal offence can be committed against a foetus and if the child is entitled to be compensated for the injuries it has suffered, how is it that the law appears to make it so easy to take the life of an unborn baby under the Abortion Act 1967? Did it fear that it might upset the current uneasy status quo?