piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Schedules, Counter Schedules and the Gadget Generation

    No self-respecting Schedule of Loss is now complete without a hefty claim for “Assistive Technology” items. The response in most Counter Schedules is that the Claimant is likely to have possessed all or some of the items being claimed in any event. The fact is that UK parents now spend a combined £2.25 billion a year or just under £300 per year per household on technology for their children.   This information comes from research on behalf of E.ON UK, one of the UK’s large energy providers.   http://pressreleases.eon-uk.com/blogs/eonukpressreleases/archive/2014/07/25/2376.aspx   We are truly the “gadget generation” in that today’s children possess an average of 4 gadgets each.   Staggeringly, parents with children aged under 5 spend even more. On average a “techie tot” is given gadgets costing £395 per year. Not surprisingly, it is teenagers aged 15-17 who are the most “plugged-in” typically owning 7 devices each.   The trend continues into adulthood. From age 18, parents of males spend over £717 a year on gadgets for their sons. Females aged 18 and over have just under £1,000 worth of gadgets bought for them by their parents per year.   It will come as no surprise to readers not in these age groups to learn that most (56%) of parents acknowledge using their children's “technology hand-me-downs”. 32% of parents also confessed to not being as “tech-savvy” as their children. Most worryingly of all, 14% of parents admitted that they could not even match their “techie tots” when it comes to knowing their way around the latest gadgets.   Perhaps the Counters Schedulers have a point?

The ever-ageing 13-Year-Old Compensation Discount Rate

There has been a further delay to the much-anticipated and important decision on the discount rate to be applied to compensation. And this comes almost two years after conclusion of the consultation on the question of whether the current rate of 2.5% should be modified.   This issue is of course of extreme importance to anyone involved in injury litigation. The legal professions are somewhat divided as to whether the rate should be increased or decreased, along (usually) respectively defendant and claimant lines.     Chris Grayling, the Justice Secretary (as he is more commonly known rather than Lord Chancellor) has now announced that he wishes to appoint  panel of three financial investment experts to analyse all the responses to a consultation on the discount rate that closed as long ago as October 2012. It has been widely reported that the government’s initial response to its consultation was that successful claimants were prepared to invest in higher-risk investments than currently assumed. However, further research published in August 2013 the diametric opposite! The tender process for the appointment of these experts has yet to be completed.   The further delay prompted an understandably outraged response from the Association of Personal Injury Lawyers (APIL), who with some justification accuse the Government of ‘dragging its heels’ on the issue of a discount rate that has been set at the same level for 13 years. In the Ministry of Justice’s somewhat testy reply Mr Grayling said he saw ‘no reason’ to publish a timetable setting out how long the decision will take. (Perhaps he sees little reason to attempt to garner favour with lawyers, recognising bridges and boats may have been well-burned?)   It is unclear when anything approaching a final decision will be reached. Clearly it is unlikely to be in the lifetime of the current Government. The only seemingly sure advice, is for anyone interested not to hold their breath!

A Judgment for What? The Effect of Default Judgments

Where a defendant admits breach of duty but wishes to contest causation, injury and quantum, it has in the past been common practice for it to allow judgment to be entered in default of Acknowledgment of Service or of Defence and to proceed to contest the remaining issues at an assessment of damages hearing.  An alternative course of action, which in the short term is more expensive, is to file a Defence making appropriate admissions and then for the claimant to seek entry of a judgment for damages to be assessed. In Symes v St George’s Healthcare NHS Trust [2014] EWHC 2505 (QB), the claimant was referred to hospital in October 2008 by his GP with a lump on his face which turned out to be a malignant tumour.  In January 2009, a consultant decided that he should have an urgent superficial parotidectomy, but that was not carried out prior to May 2009, when it was found that the tumour had invaded the facial nerve and there had been metastasis to the lungs, leading to the need for a total parotidectomy and the loss of the left facial nerve and inoperable lung cancer.  In 2011, an open admission was made that there had been a breach of duty in failing to identify that the lump was suspicious of malignancy and in the delay in operating, but the defendant’s solicitors made it clear that its view was that the invasion of the facial nerve and the metastasis to the lungs were not attributable to either breach of duty. Proceedings were initially struck out for non-service, but on re-issue, the claimant pleaded his causation case in detail in the Particulars of Claim.  The defendant did not enter an Acknowledgment of Service or a Defence.  Master Roberts entered judgment in default of Acknowledgment of Service and set a date for a directions hearing.  The parties agreed the terms of an order before the hearing and the Master ordered that the parties would have permission to rely on expert evidence on “quantum, condition and prognosis” from experts in oncology and care.  The defendant continued to reiterate in discussions between solicitors that the claimant’s case on quantum was in dispute, save that it was accepted that there was a liability to pay damages for pain and suffering during the delay in treatment.  However, it was not until the claimant sought an interim payment of £50,000 that his advisers expressly asserted that the default judgment precluded the defendant from contesting the pleaded allegations of causation.  Whether or not the claimant was entitled to that interim payment depended largely on whether the claimant was correct as to the effect of the default judgment. At first instance, in a judgment given on March 21st 2014, the Master upheld the claimant’s contention.  He ruled that the Particulars of Claim stood as a template for the default judgment and that the defendant accordingly could not contest causation.  He castigated the defendant for having acted in a manner contrary to the overriding objective and having failed to comply with the obligation in CPR 16.5 to respond properly to the Particulars of Claim by serving a Defence. On appeal, Simon Picken QC, sitting as a Deputy High Court Judge, allowed the appeal.  In his judgment, the deputy judge reviewed the case law in some detail.  In particular, he closely examined the leading case on the subject, Lunnun v Singh [1999] CPLR 587, which had followed an earlier decision of the Court of Appeal refusing permission to appeal in Turner v Toleman [1999] unreported, January 15th.  The judge held at [62]-[63] that he was bound by the decision of the Court of Appeal in Lunnun to conclude that the default judgment established no more than that the defendant was in breach of duty and that the breach had caused some damage.  There was no special rule applicable to clinical negligence cases: at [64].  Lunnun remained good law following the introduction of the CPR: at [65].  He also said that as a matter of principle that since the defendant admitted part of the claimant’s pleaded case on causation (that the delay in treatment led to pain and suffering) there was no basis to construe the default judgment as extending to the other consequences which were said to follow from the breaches of duty: at [66]-[68]. The deputy judge then went on to consider whether the defendant had acted contrary to the CPR.  The rules did not state that the effect of a default judgment for damages to be assessed precluded a claimant from contesting a pleaded case as to causation: at [83].  It followed from the decision as to the effect of the default judgment that the defendant had been entitled not to serve a Defence and so there was no breach of CPR 16.5: at [84]-[85].  Accordingly, while it “would have been more sensible” for the defendant to serve a Defence, it was not in breach of the rules for failing to do so: at [86]-[87].  Nor was the defendant in breach of the overriding objective, since it had made its position clear in correspondence to the claimant’s advisers, if not to the court: at [89]-[91].  The claimant’s advisers accepted that they had known that the defendant’s solicitors were under what they regarded as a misapprehension.  In those circumstances, both parties should have brought the misunderstanding before the court at an earlier stage: at [92].  In Parkhouse v North Devon Healthcare NHS Foundation Trust, at a hearing on May 6th 2014, this course had been taken where default judgment had been entered but at a directions hearing, the defendant had made it clear that causation was in dispute.  Master Roberts himself denied that there was any need for the directions order to make clear that it was open to the defendant to contest causation, although in the event a recital was inserted to that effect. The extent to which, in clinical negligence cases, the practice of allowing default judgment to be entered in this way is followed is not clear.  Anecdotally, it appears that both courses of action are utilised by defendant’s solicitors.  Even though the practice has been legitimised (subject to any further appeal to the Court of Appeal) by the decision in Symes, nevertheless the modest cost savings in not serving a Defence in a case where there is a clearly pleaded case in causation are surely outweighed by the need to ensure that both parties are absolutely clear about the extent to which the critical issue of causation is being contested.

Coroners, Consistency and Change

  Harold Macmillan is famously said to have observed that:   “There are three bodies no sensible man directly challenges: the Roman Catholic Church, the Brigade of Guards and the National Union of Mineworkers”.   To this list should perhaps be added the Royal British Legion.   The Coroners and Justice Act (CJA) 2009 contained legislation to reform the process of death investigation and certification in England and Wales to deal with the shortcomings of single doctor death certification identified in the Shipman Inquiries. It also created the new office of Chief Coroner (CC).     In October 2010, Jonathan Djanogly, then Parliamentary Under-Secretary of State for Justice announced that some of the provisions of the CJA 2009 would not be implemented. These included the office of CC.   Following widespread public criticism, including a message to all members of parliament from the Royal British Legion which appeared prominently in a number of national newspapers, the government relented.   Kenneth Clarke, then the Justice Secretary, announced that he had “listened and reflected on the concerns” and the office of CC would be created after all.   In May 2012 the Lord Chief Justice in consultation with the Lord Chancellor appointed Judge Peter Thornton Q.C. as the first CC of England and Wales.   On 1 July 2014 the CC presented to the Lord Chancellor his first annual report which can be downloaded free of charge from the government’s website:   https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/330652/chief-coroner-annual-report-july-2014.pdf   The report covers the period from 25 July 2013 to 30 June 2014 and contains information which will be of interest and help to all lawyers doing coronial work. In particular the report includes sections on:   The training of and the guidance now provided to coroners. The appointment of coroners and the merging of certain coroner areas. Investigation and inquest processes. Delays in investigations. Prevention of future death reports.   As the report recognises much work still needs to be done. But the CC can take credit for the fact that more hearings are now held in public, all hearings are recorded, most inquests are or soon will be held within six months and there is now better and earlier disclosure to interested parties.   Currently in England and Wales there are 99 separate coroner areas. We await with interest next year’s report to see if the CC’s stated intention to reduce these to about 75 areas, each being an appropriate size in terms of numbers of deaths reported geographically and special work - prisons, major hospitals, mental health institutions and airports – will result in further improvements to the coronial service overall.

A Head for Heights

  “… I was out in the garden with my stepladder today. Not my real ladder. I don't get on with my real ladder …” I was reminded of this old one liner when reading the latest instalment of the government’s Red Tape Challenge This is the revised guidance issued by the Health and Safety Executive (HSE) on working at height. This is now much simpler and sets out in clear terms what the law requires and the nature of an individual's responsibilities. It should be part of every personal injury lawyer’s tool kit. The new guidance is available free online: http://www.hse.gov.uk/pubns/indg401.pdf More than 1 million British businesses and 10 million workers are estimated to carry out jobs involving some form of working at height every year. The Work at Height Regulations (WAHR) 2005 (SI 2005/735) set out the law as it applies in Great Britain. These regulations have not changed. However key changes to HSE guidance include: Simple advice about the dos and don'ts of working at height. The dispelling of some of the persistent myths about health and safety law (Example – “I am working at height if I’m walking up and down a staircase at work. No, you are not. Work at height does not include walking up and down a permanent staircase in a building”). Targeted advice to help businesses in different sectors manage serious risks sensibly and proportionately. Helping workers to be clearer about their own responsibilities for working safely. The new guidance was produced with the support of various bodies including the British Retail Consortium, and the trade unions. It is also timely. Falls remain one of the biggest causes of serious workplace injury with more than 40 people killed and 4,000 others suffering major injuries every year. For lawyers, the guidance sets out clearly and informatively what employers need to do to protect their employees when they are working at height whilst at the same time making clear what can reasonably expected of employees to take responsibilities for their own safely. The emphasis is less on formal qualifications and more on competence. This means having the necessary skills, knowledge and experience for the work being carried out. Hardly new advice but a valuable reminder nonetheless!  

Occupiers rights........

The National Press seem to enjoy the facts of a personal injury claim, decided last week in the High Court by John Leighton-Williams QC, sitting as a Deputy High Court Judge. The case was Lisa Driver v Roman Painted House Trust and Dover City Council. It arose from a night out in July 2007, where Mrs Driver had sometime after midnight fallen down a 20 foot embankment which lay behind a three foot wall on land owned by the Council and used by the Trust as a carpark. The claim was brought under the Occupiers Liability Act 1957 and the Claimant contended that she was a lawful visitor. Both Defendants contended that she was in fact a trespasser, and the 1984 Act applied, given that she was in the carpark after midnight and long after the Museum had closed. The Judge accepted the Defendants’ submissions on that point, and found that the Claimant had been drinking more than she admitted and had entered the carpark unlawfully with an intention of “having a wee”, rather than for any legitimate purpose. The claim was dismissed with costs, on the basis that the wall was not dangerous or a trap. Angus Piper acted for the Council (Judgment 11th April 2014). The judge accepted Mr Piper’s submission that as between the Defendants there was a joint occupation of the site. This claim followed a similar success for Angus Piper a week earlier, when he acted for Sheffield City Council in a claim by a Council tenant who had slipped on ice in the backyard of the house that he rented from the Council. That claim was dismissed by Recorder Phillips QC sitting in Sheffield County Court.

Scuppered by the Athens Convention

The Athens Convention has long been a trap for the unwary claimant who either doesn’t appreciate that accidents at sea are governed by the Convention or that there is currently a 2 year limitation period. Most of the reported cases on the Convention deal with the consequences of one or both of these mistakes. However the judgment in the case of Feest v South West Strategic Health Authority [2014] EWHC 177 (QB) (handed down today) now poses a trap for defendants wanting to bring contribution proceedings. Dr Feest was injured as a passenger on a 9 metre RIB (rigid inflatable boat) in the Bristol Channel. She was on secondment from the Health Authority and on a corporate team building exercise being run by Bay Island Voyages when she fractured her spine. Dr Feest’s claim against the Health Authority (as her employer) was issued just before expiry of the 3 year time limit. The Health Authority brought a Part 20 claim against Bay Island Voyages. This was struck out by a district judge on the grounds that the time limit under the Convention is 2 years. The Health Authority appealed. The appeal hinged on the distinction between a cause of action being time barred and a cause of action being extinguished. In common law jurisdictions for the most part when time expires, it acts as a bar to the remedy. In civil jurisdictions it said to extinguish the cause of action altogether. The significance of this is that a right of contribution under the Contribution Act is only available where the cause of action has not been extinguished. Hence the appeal was concerned with whether the limitation period under Article 16 of the Convention barred the remedy or whether it extinguished the right to sue. HHJ Havelock-Allan QC found on appeal that, although Article 16 uses the language of an action being ‘time-barred’ after a period of 2 years, it extinguished the cause of action. Albeit that the Convention has been incorporated into domestic law and modified for domestic voyages, it must be ‘construed on broad principles of general acceptation’. The judge found that if he was ignorant of the English rules he would interpret Article 16 as extinguishing the right to sue. Interestingly the Montreal Convention actually uses the words ‘the right to damages shall be extinguished’ but the Carriage by Air Act 1961 actually includes a saving provision for contribution proceedings. The Merchant Shipping Act 1996 has no equivalent – arguably because the legislators interpreted the Athens Convention as a time-bar. Either way, in the unlikely event that a Claimant’s claim is issued within 2 years of an accident, Defendants will need to act swiftly to bring contribution claims within the same 2 year time period. (The author, Ian Miller, was counsel for the Health Authority and was led by John Ross QC)

The Problem with some Uncooperative Litigation Friends

What happens when you are involved in litigation where a party’s interests (either your client or the other side’s) are represented by litigation friend who refuses to cooperate with you or other people involved in the case? In many cases, surely the answer is simply to apply to the court for the recalcitrant litigation friend to be replaced for the best interests of the protected litigant. However it is clear that notwithstanding the manifest damage being caused by an uncooperative litigation friend, their removal may be anticipated to do more harm than good. Such was the case in M (a child by his father & litigation friend) v LB of Lambeth (Defendant / Pt 20 Claimant) & Hyde Southbank Homes Ltd (Pt 20 Defendant) [2014] EWHC 57 (QB). Here C had suffered a serious injury after falling from a window, aged four. His own medical expert stated that C had probably suffered a brain injury and there was "significant brain impairment". However, the defendant's experts stated that C's impairments "were consistent with his pre-injury functioning" and on balance were probably "secondary to his inherent pattern of development and may have been contributed to by social and cultural factors". In short, the experts were poles apart. C’s litigation friend was no longer prepared to co-operate with medical experts and was not amenable to putting in place the support recommended for C. He and C’s mother had instructed C's solicitor to settle the claim as soon as possible. Sensibly worried about the situation they found themselves in, C's solicitors sought the court's guidance upon whether the litigation fiend’s appointment should be terminated, and whether the case should be settled even though it remained unclear whether C had suffered a brain injury and what his disabilities might be in the future. However, the Court held that as the litigation friend was also C’s father, even should a new litigation friend be appointed, it would be unlikely that C’s parents would become any less uncooperative as they were being presently and would probably continue to hinder C’s best interests. Against this background, it was held that the best (or perhaps the “least worse”) course in this particular case was for C’s solicitors to seek to negotiate settlement on the basis of the existing medical and other evidence, as instructed by C’s father and current litigation friend. Clearly this was a far from ideal position for either C or indeed the Defendant Party. Without greater clarity as to C’s medical position there was inescapably a risk of significant injustice to both sides. However when faced with such an unusual situation, the Court held there was little positive it could do, rather than risk making the position worse. This must have weighed heavily upon Mr Justice Tugendhat’s mind when he later came to approve the settlement the Parties reached.

Want to live longer … Move to Dorset!

Dorset is the birthplace of Thomas Hardy. Hardy loved the Christmas season and his novels, short stories and poems are full of references to it. My favourite Hardy novel “Under the Greenwood Tree” begins on Christmas Eve.  Dorset now has another attraction. It has the highest average life expectancy in the UK with men living to 83 years and women to 86.4 years. The Office for National Statistics has recently published its “Interim Life Tables, England and Wales, 2010-2012”.  http://www.ons.gov.uk/ons/publications/re-reference-tables.html?edition=tcm%3A77-325699 These will be of interest to personal injury lawyers tempted to spend part of the Christmas period doing schedules or counter schedules. The headline points are that life expectancy in England and Wales has increased by more than a year in the past decade. However, the distribution of life expectancy across England is still characterised by a north-south divide with people in local areas in the north generally living shorter lives than those in the south. Boys are also narrowing the gap on girls when it comes to life expectancy in England and Wales. The ONS reports that baby girls born 30 years ago were expected to live six years longer than boys. Now it is less than four. This is because fewer men now work in heavy manual labour which historically had high death rates as a result of industrial accidents. They are also less prone to diseases that affected workers in certain industries, such as mining. In contrast, women who might once have stayed at home have taken on the stress of working. In addition, many women also care for children or ageing relatives or both as well as providing for their family financially. Kathy Gyngell, a research fellow with the Centre for Policy Studies, observes that   “We are increasingly seeing more women suffering from what were once male diseases – heart disease, high blood pressure, even baldness”. In case you were wondering men in Blackpool have the lowest average life expectancy at 73.8 years while the lowest for women is in Manchester at 79.3 years. As well as Christmas, Thomas Hardy also had a view on old age: “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”. Florence Emily Hardy, “The Later Years of Thomas Hardy” (Macmillan, 1930). To late developers everywhere, Happy Christmas!

Accidents at sea: the limitation traps for claimants and defendants

The Athens Convention is notorious for catching out PI practitioners with its current two year limitation period* for accidents at sea. Indeed the few reported cases on it are mainly concerned with whether it is possible to extend time (Higham v Stena) or whether a cause of action exists outside the Convention (Norfolk v My Travel) – both resulted from a failure to issue in time. Judgment is shortly to be handed down in a case which may make life even more complicated for the personal injury practitioner. The issue is whether Article 16 of the Athens Convention extinguishes the cause of action or whether it bars the remedy. This fine distinction rarely troubles most personal injury practitioners but it has historically been a feature of our, and other, common law jurisdictions. In the UK we have, with exceptions, a system of limitation which stops a litigant accessing a remedy on the expiry of a period of time. Exceptions include claims relating to land and defective products. Other jurisdictions have a system of prescription which means that when time expires, the cause of action is extinguished. Why does this matter? Because under section 1(3) of the Civil Liability Contribution Act 1978 a party may claim a contribution from another tortfeasor who is liable for the same damage, except where the cause of action against that other tortfeasor has been extinguished. Where that is the case the contribution claim cannot proceed after the expiry of the time limit and there is no 2 year limitation period under section 10 of the Limitation Act 1980. In The Celtic Pioneer the judge heard arguments on the third party claim last week. The claimant was employed by the defendant and was seconded to another organisation. Whilst with that organisation she was injured on a boat trip. Her (former) solicitors missed the 2 year limitation period against the boat company and she sued the defendant (a strategic health authority). The defendant sought to bring in the carrier which successfully struck out the defendant’s claim on the basis that the cause of action was extinguished by Article 16 of the Athens Convention. The appeal was heard last week. The twist is that Article 16 is couched in the language of being a ‘Time-bar’ to an ‘action being brought’ which contrasts starkly with the equivalent provisions of the Warsaw and Montreal Conventions which refer to the cause of action being ‘extinguished’. The defendant argued that regardless of the language of a ‘time-bar’, Article 16 extinguishes the cause of action on the expiry of the 2 year limitation period. Claimants may miss the 2 year time limit but there is the potential that this judgment will catch out defendants wanting to bring third party proceedings and not realising that they must also bring their claims within 2 years of the accident. Indeed the same logic would apply to other international conventions given the force of law in the UK. Watch this space for the result... (John Ross QC and Ian Miller were counsel for the Appellant in The Celtic Pioneer).   *The limitation period may technically be suspended or interrupted up to a limit of 3 years under Article 16.3 or extended by agreement under Article 16.4F Photograph: Ian Britton FreeFoto.com