piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

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

Fraudlent claims and contempt of court: if you can't do the time ...

  Regular readers of this blog will have come across several posts dealing with allegations of fraud or exaggeration.  Indeed, allegedly fraudulent accidents appear to be occupying an ever increasing proportion of the court’s time.  The recent decision of Spencer J in Homes for Haringey v Barbara Fari and Piper Fari therefore serves as a stark and welcome warning to any budding fraudsters.   Mrs Fari brought a claim for personal injury after tripping outside her home, seeking compensation of £750,000.  According to her witness statement, Mrs Fari was left with severe pain and significantly limited mobility, such that everyday tasks were difficult for her to perform.  Her schedule of loss included a substantial claim for care from her husband, which would allegedly be required for the rest of her life.  Mrs Fari had provided such an account of her disabilities to her medical experts, and Mr Fari also produced a witness statement in support of his wife’s claim. Unfortunately for Mrs Fari, Homes for Haringey arranged for video surveillance.  The results painted a very different picture.  Mrs Fari was filmed going about her daily activities without any real difficulty, and it was apparent that she did not require any such care and assistance from her husband.  In light of the surveillance evidence, Mrs Fari’s claim was struck out in October 2012 on the basis of her “gross exaggeration”. Homes for Haringey subsequently brought committal proceedings against Mr and Mrs Fari.  Mrs Fari argued that she could not read or write, that she had signed her witness statement and schedule of loss without understanding their content, and that her medical experts had misunderstood her. Mr Fari claimed that he signed his witness statement without reading it.  Unsurprisingly, these arguments held little sway with the court.  It was held that those documents must have prepared on the basis of instructions, and Mr and Mrs Fari were in contempt of court for their serious and deliberately false representations.   Passing sentence last week, Spencer J held that those who made false claims had to expect to go to prison.  Mrs Fari had argued that the Article 8 rights of her dependant children would be affected should she be sentenced to imprisonment.  Those submissions were rejected, and Mrs Fari was sentenced to 3 months imprisonment.  Mr Fari was sentenced to suspended sentence of two months’ imprisonment for his role in the claim. This will undoubtedly be welcomed by insurers, and clearly demonstrates that the courts will protect the public interest and adopt a robust stance against those bringing such exaggerated claims.   

A defendant's nightmare?

  A Defendant’s Nightmare?   Sarah Davison would normally get to her desk by 6 a.m., work for twelve hours and often head out thereafter to meet and entertain clients. Sleep felt like it was secondary to achievement. She worked in a macho environment and her boss was a man who, in the words of Andrews J, “does not suffer fools gladly, or indeed at all”. But Mrs Davison was well-paid: at the time she left on maternity leave to have her first child she was earning over £200,000 a year. When, after giving birth to that child, she suffered a career-ending injury as a result of clinical negligence, the resulting claim was always going to be of the size that makes defendants and their insurers wake up in a cold sweat in the middle of the night.   Andrews J’s judgment on damages (Sarah Davison v Craig Leitch [2013] EWHC 3092 (QB)) makes interesting reading. A court called upon to assess loss of earnings in such a situation is engaged in a difficult exercise, perhaps best characterised, to borrow one of my favourite judicial dicta of Lindsay J, as “a glance at a crystal ball of, so to speak, only a low wattage” (see Douglas v Hello! Ltd (No.5) [2003] EWHC 786 (Ch)). There are often a number of variables and changing any one of them can have a significant effect on the ultimate award.   One approach is to consider a number of possible scenarios, determine the probability of each of them occurring, and then multiply that figure by what would have been earned in each scenario; that can sometimes be the only way to do justice, particularly where a person had a chance of a “big break” which, had it occurred, would have lead to very significant rewards. The kick-boxing claimant in Langford v Hebran [2001] PIQR Q13 is a good example of this approach being applied; it works best where there are a limited number of clearly defined possible scenarios; where they are more numerous, or the lines between them more blurred, the calculation can become unwieldy.   The more traditional approach, and the one adopted by the court in Davison, is simply to make a best guess as to how the claimant’s career would have progressed absent the tort. This will inevitably involve scrutiny of the claimant’s pre-accident career and abilities. Andrews J was clearly impressed by the evidence on this point of Mrs Davison’s ex-boss, a man so busy he had to give evidence “via video link ... en route to catching a plane”. There may also be a need, particularly in a volatile or cyclical industry such as financial services, to assess what the future demand would have been for a person’s services.   Andrews J broadly accepted the Claimant’s evidence on these two points; where she differed was as to the likelihood of the Claimant continuing in her pre-accident role as an equities trader once her three children were born, holding “it highly unlikely that when Mrs Davison returned to work after her maternity leave ... she would have had the appetite to return to the stresses of the trading floor and face the prospect of never seeing her three small children during the week ... However much she would like to believe otherwise, in my judgment it is far more likely that she would have moved to a less stressful position within the bank, involving shorter working hours.”   The judgment is also interesting for its award of £6,500 for loss of congenial employment. Given the description of Mrs Davison’s working life at the start of this post, one may well question whether it can really be described as “congenial”. Andrews J justified the award on the basis that Mrs Davison’s “future is uncertain and any work she does undertake in future is likely to be fairly solitary and considerably well paid”. This is curious reasoning. The fact that the Claimant was likely to be paid less was, of course, compensated by an award for future loss of earnings. It might be said that her earnings are relevant to what was in effect an award for loss of status, but here again surely one has to look at all the circumstances of her pre-accident employment. Andrews J found as a fact that the most likely future for the Claimant would be running her own small business, possibly as an interior designer. Of course, that would lack the stimulus and status of a job in the City, but it would also lack its stresses and uncertainties. Can it really be said, taking everything into account, that the Claimant’s overall quality of life would undoubtedly be the poorer? Less well-paid, certainly; but less congenial? - it is perhaps to be doubted. There is a danger that awards under this head will become routine in all cases where a claimant is unable to pursue their chosen career. Perhaps the Law Commission’s suggestion that this should not be a separate head of damage at all, but rather should be considered as part of the award for PSLA, deserves reconsideration.        

“Safe sex” – Part 3

Sex activity is “in every sense a personal choice”.   Ordinarily this truism might not find its way into legal submissions and certainly not submissions by the Solicitor-General of the Commonwealth of Australia. However, ordinarily injuries at work do not arise from a “vigorous” sex session in a motel bedroom.   Regular readers will recall the story so far in relation to this unfortunate “on the job” injury which raises important questions for personal injury and employment lawyers in the UK about the types of activities which can properly be said to arise out of or in the course of employment.    The respondent, a female public servant sued the Australian federal government after being injured while having sex on a work trip in a motel bedroom. The respondent’s partner’s evidence was that they were “going hard” when a glass light fitting came away from the wall above the bed striking her in the face and causing both physical and psychological injuries.   The appellant claimed compensation because her injuries were caused “during the course of her employment” as she had been instructed to travel to and spend the night in a motel in a small town in New South Wales ahead of a departmental meeting early the next day.   The respondent, Comcare, the Australian government's workplace safety body, rejected the claim on the grounds that sexual activity “was not an ordinary incident of an overnight stay like showering, sleeping or eating”. That decision was upheld by the Administrative Appeals Tribunal.   Nicholas J. allowed the appellant’s appeal - see PVYW v Comcare (No 2) [2012] FCA 395. Comcare appealed to the full court of the Federal Court of Australia (FCA) which dismissed its appeal – see Comcare v PVYW [2012] FCAFC 181.   In particular, the FCA rejected Comcare’s submission that an injured employee must show both that the injury occurred at a place where he or she was induced or encouraged by the employer to be and that the activity from which the injury arose was induced or encouraged by the employer or was implicitly accepted. It held that the potential conditions for liability were not conjunctive in the sense that an activity test should be super-imposed on a place test. There was no combined or two-stage test. There was a single test which may be satisfied in either one of two ways.   Comcare appealed to the High Court of Australia which on 30 October 2013 by a majority of 4-2 allowed the appeal and rejected the respondent’s claim for compensation – see Comcare v PVYW [2013] HCA 41.   The judgment of the majority was given by Chief Justice French AC. The essential enquiry in each case was “how was the injury brought about?” Sometimes the injury will have occurred at and by reference to the place where the employee was. Usually, however, it will have occurred while the employee was engaged in an activity.   The majority held at [38] that “when an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity?  When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment”.    It follows that where an activity was engaged in at the time of the injury, the relevant question is not whether the employer induced or encouraged the employee to be at the place where the injury ocurred because such inducement or encouragement is not relevant to the circumstances of the injury.   Put another way, an employer is not liable for an injury which occurs when an employee undertakes a particular activity if the employer has not in any way encouraged the employee to undertake that activity but has merely required the employee to be present at the place where the activity is undertaken.   Two justices dissented. Bell J. held at [106] that “consideration of the connection between the circumstances of the injury and the employment relation would be to add complexity at the cost of certainty and consistency”. Gageler J. agreed holding at [159] that “The particular activity in which the respondent was engaged at the time she was injured does not enter into the analysis”.     The High Court’s decision means that in Australia an employer will not become, in reality, an insurer for an employee in respect of any activity carried out at a place which the employee has been induced or encouraged by the employer to be. It also provides useful guidance to UK lawyers who may be called upon to deal with unusual work place related injuries.   The decision also restores certainty and structure to the law of employers' liability in Australia – something which was sadly lacking in the motel light fitting in question!  

Personal Injury practices safe 'at this stage'

“Will they or won’t they?” has been the question for many personal injury lawyers wondering whether their practices were about to disappear into oblivion with the raising of the small claims limit. The question has now been answered: “not at this stage”. The government clearly thinks that it would be good to raise it. However it does not intend to do so ‘at this stage’ because it might have an adverse effect on victims of RTAs with genuine injuries. It wants to develop safeguards before an increase in the limit is considered. The government has also responded to the consultation on its proposal to set up panels of independent medical experts. It intends to go ahead with this with the intention of having experts who give better advice on whiplash injuries. The view is that only reports from accredited medical experts would be accepted in evidence in whiplash claims. Reports will be in a standardised format and the government intends to stop experts being paid by those who favour a certain outcome. Further work is to be done before a proposal is published. You may or may not have been aware that the transport select committee had recommended reducing the limitation period for road traffic cases involving personal injury from three years. The government has made it clear it does not intend to do so. Such a move would make the law of limitation more complicated and would cause a massive surge in litigation – at a point when the court system is struggling in any event. The government has also suggested measures to challenge fraudulent or exaggerated claims. These include better data collection in order to establish the extent of the problem, prohibiting settlement without a medical report and the sharing of data by insurance companies with claimant solicitors to help claimant lawyers carry out ‘know your client checks’. Whether this will really make any difference is open to doubt – one school of thought is that vehicle technology (dashboard cameras, speed recording devices etc) will only really make a difference.

CA suggest no need for causation in HRA claims?

The Court of Appeal has given judgment in Sarjantson v The Chief Constable of Humberside Police [2013] EWCA Civ 1252, an important and interesting decision on the operation of police officers’ duties to protect citizens under the Human Rights Act 1998 (“HRA”).   Mr Sarjantson (“C”) was attacked and injured by a group of young men armed with baseball bats and bricks in the early hours of 9th September 2006.  Several members of the public made 999 calls to the police, describing the group as violent and dangerous and reporting that they were attacking various people.  The first time that C’s name was mentioned - as a victim of the attacks - was about seven minutes after the first 999 call.  The police (“D”) arrived, but only after a delay of some eleven minutes; this delay was later criticised in an internal police investigation.  The assailants were convicted of assault and violent disorder and sentenced to lengthy terms of imprisonment.   C alleged that D had violated his article 2 and/or 3 rights under the European Convention on Human Rights (“ECHR”), by failing to attend the scene of the attacks as quickly as they should. D responded by seeking to strike the claim out, arguing (a) that C was not – adopting the words of used in Osman v United Kingdom (2000) 29 EHRR 245 - an “identified individual or individuals” and the duty to protect under articles 2/3 therefore did not arise and/or (b) that even if D had attended as soon as possible, the assault on C would not have been prevented, as it occurred before D could reasonably have been present at the scene.   The circuit judge struck the claim out.  The CA has re-instated it, holding (a) that D’s duty to protect citizens under the HRA is not limited to identified individuals or groups but can extend to the public at large and (b) causation is not a necessary ingredient of a claim under the HRA, so that even if D’s earlier attendance would have made no difference C can still succeed.  As Lord Dyson MR put it: “A finding that a response would have made no difference may mean that there is no right to damages.  But it is not relevant to liability”.   The case seems to mark a significant extension of the scope of the HRA to provide redress for those injured by the criminal acts of third parties.  The fact that a duty to protect may arise under the HRA to the public at large may, for example, mean that the claimant in a case such as Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 (the final victim of the “Yorkshire Ripper”), would now have a claim under the HRA (whereas a common law claim would fail on proximity).   And on causation the case seems to sit uneasily with Lord Brown’s remarks in Van Colle v Chief Constable of Hampshire Police [2009] 1 AC 225, in which His Lordship indicated that proving causation – albeit on the basis of the loss of a “substantial chance” of making a difference – was needed to establish a cause of action under the HRA (see paragraph 138).

Punching inanimate objects and common sense

In 2010 Lewis Pierce was nine and a half years old and one day was playing at school with his younger brother George; both boys went over to a water fountain and George sprayed Lewis with water. George, seemingly not seeing the funny side then attempted to punch his brother, who being a sensible lad moved out of the way. Lewis missed George and ended up hitting the water fountain, cutting his right thumb. Consequently proceedings were started with the local authority as the Defendant, it being alleged that the water fountain had a sharp underside which amounted to a real and foreseeable risk. The judge at first instance agreed with this holding that there was a real risk that children might skylark around and could easily trip and cut their heads against the underside of the fountain (you’ll note that this wasn’t what happened to Lewis!). As such, Lewis was awarded £3,215.16. The Defendant appealed and the Court of Appeal (MR, McFarlane LJ and Sharp LJ) has today handed down their decision (West Sussex CC v Master Lewis Pierce (A child by his litigation friend Mrs Annette Pierce) [2013] EWCA Civ 1230. The Court allowed the appeal with Lady Justice Sharp noting that the trial judge had failed to identify and then answer the correct legal question. The judge failed to mention the Occupiers’ Liability Act 1957 and proceeded on the flawed basis that “once he had determined that the underside of the water fountain was sharp and there was a possibility that an accident might occur, the defendants were liable for what happened unless they had conducted what the judge described as a properly considered risk assessment.” Sharp LJ helpfully set out the correct question in such cases: “The question which has to be addressed … is whether as a matter of objective fact, visitors to the School were reasonably safe in using the premises, including for this purpose, the water fountain, bearing in mind of course that children do not behave like adults, and are inclined to lark around.” The answer to the question in this case was “yes”, the water fountain was reasonably safe (or more accurately that the evidence did not establish that it was not safe). The Court did not consider the underside of the fountain to be sharp (having had the opportunity to look at it) but even if it were sharp is was said that “by no stretch of the imagination could it be said to constitute a danger to children. Certainly the edge could be have been bevelled, or padded, and had that been done the claimant might not have injured his thumb. But to say that misses the point it seems to me. The School was not under a duty to safeguard children against harm under all circumstances … as a matter of generality, the School was no more obliged as an occupier to take such steps in respect of the water fountain than it would be in respect of any of the other numerous edges … against which children might accidentally injure themselves …”. In conclusion Sharp LJ said “The law would part company with common sense if that were the case, and I do not consider that it does so”.