piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Snails, Soft Drinks and Dissolving Rodents

Every law student who has sat through their first lecture on tort law is likely to come away remembering something about a Mrs Donoghue. She of course went to a cafe in Paisley and ordered a bottle of ginger beer to drink with an ice cream. As she poured out some of the drink, she alleged she found the remains of a decomposed snail. The rest is – as they say – history, as Lord Atkin promulgated his “neighbour principle” and the modern law of negligence was born.   A curious twist of course was that we will never know if there really was a snail in present in Mrs Donoghue’s giner beer as the case settled after the House of Lords remitted it for trial before the Outer House of Session.   Donoghue v Stevenson was preceded by another Scottish case of Mullen v AG Barr & Co Ltd. This concerned the finding, of dead mice in bottles of ginger beer by no less than three children of the same family. In Mullen the Scottish Court of Session dismissed the plaintiffs claims on the basis that there was no legal relationship between the drinks producer and the final consumer upon which to sue, but it is unclear if the mice were actually held to have indeed been present or not.   Despite what must be considerable advances in standards of manufacturing from 1920s Scotland, it seems that “animals in drinks” cases continue to be litigated.    Earlier this year, a Mr Ball of Edwardsville, Madison County, Illinois brought a lawsuit PepsiCo in negligence after he discovered the partially decomposed body of a mouse in a tin of Mountain Dew “soda”. He alleged he was violently ill after drinking some from the tin and discovered the mouse after he poured the remaining drink in to a cup. He was reported to have sought $50,000 in damages.   Quite aside from the fact that the bases for the law of negligence are settled, like the defendant parties in Donoghue and Mullen, PepsiCo denied the presence of the offending mouse. Their reasoning did not extend to the fastidiousness of the manufacturing process, when the drink was produced or bottled however. PepsiCo argued that Mountain Dew contains such acidic chemicals that any small animal in the tin, would have been all-but dissolved or at least reduced to an unrecognisable goo.   PepsiCo’s argument was that should a mouse be submerged in a fluid with the acidity of Mountain Dew would, after a week, “have no calcium in its bones and bony structures, the mouse’s abdominal structure will rupture, and its cranial cavity (head) is also likely to rupture”. Therefore, they argued that Mr Ball’s version of events could not possibly be correct as the mouse must have been in the tin for a period substantially in excess of a week.   An early advertising slogan for Mountain Dew in the 1960s was "Ya-Hoo Mountain Dew. It'll tickle you innards." One commentator has suggested that perhaps Pepsi ought to revive this slogan, however changing the word "tickle" to "dissolve"?    

Britons have the weakest necks in Europe…

  ‘Myth or fact?’ asks a report produced by APIL entitled ‘The Whiplash Report 2012’. The report is on APIL’s website and aims to debunk the myths being peddled in the debate surrounding claims for whiplash injuries. APIL has come to slay the dragon of ‘hyperbole’ and ‘hysteria’ surrounding the subject of whiplash. Our brave knight has taken on public perception of lawyers and whiplash claims with its sword of statistics. Our myth busters first tell us that there is no whiplash ‘epidemic’: based on a survey of 4,000 people we are told that only 1 in 100 suffered a whiplash injury in the last 12 months and, according to CRU statistics, the number of whiplash claims decreased from 571,111 in 2010/11 to 547,405 in 2011/12. Another myth is that ‘whiplash is a cash bonanza’. We are told that almost 40 per cent of respondents to the survey had not claimed compensation after suffering a whiplash injury. As I read the report I am left wondering whether they hadn’t claimed because they were in the wrong car… But there is no time for doubting as the next statistics follow on fast: almost 75% of those people who suffered a whiplash injury and whose symptoms lasted for more than a year, brought a claim and just over half of those whose symptoms lasted a couple of weeks brought a claim. Of those surveyed 33% said they reported their symptoms accurately and 47% said that they made their symptoms seem better than they were to the person making the diagnosis. There is no indication what the remaining 20% said. One can only assume from the options that they said they exaggerated their symptoms. APIL tells us the conclusion we should draw: it is human nature to put up with low level pain, or to put a brave face on it. Now when I look at children and some adults too, that is not what I observe. Most children seem to act in their own self-interests: they may play down symptoms but more often than not they may make something of them for attention or advantage. The pamphlet aspires to rational debate but I fear with such arguments it damages its own cause. What makes matters worse is that if 4,000 people were surveyed and only one in a hundred suffered from whiplash then these statistics about whiplash injury sufferers are based on the responses of 40 people – too small a number of people to draw any useful conclusions. The next myth the pamphlet seeks to tackle is that ‘whiplash is impossible to diagnose’. We are told that in the APIL survey 90 per cent of those injured had their whiplash diagnosed by a medical professional. Here the pamphlet seems to be falling into the same error that it alleges its opponents are guilty of: unfairly representing an argument and then knocking it down with simplistic reasoning. Surely the allegation is not that it is impossible to diagnose whiplash but that any diagnosis is for the most part based on subjective reporting of the patient. That is no one’s fault but needs to be handled carefully. The medic cannot do a blood test or a scan and say objectively that a patient has suffered whiplash. In most cases he or she can only take a history, record the patient’s ability to move, establish the mechanism of the accident and then conclude that his or her observations are consistent with such a diagnosis. The pamphlet might be on much more solid ground when it deals with the allegation that whiplash claims are driven by lawyers. Of those surveyed only 21 per cent were encouraged to pursue a claim by a lawyer. The other were encouraged by insurers (28%), friends (18%), claims management company (10%), trade union etc (6%), CAB (7%) and 32% said they were not encouraged but made a decision themselves. If you add up all those percentages you get 122%; there is probably a good explanation for this, but it is not given. The pamphlet goes on to deal with the allegation that ‘Britons have the weakest necks in Europe’ and the problem of fraudulent claims and the issue of trust in professionals generally. At the end of 19 pages, plenty of pictures and little text one is left feeling that this is shallow contribution which does little to raise the level of the debate it begins by attacking or to inspire trust in the profession. Image courtesy of marin at FreeDigitalPhotos.net

Personal Health Budgets and Heads of Loss - Assistance Animals?

The Times today carried an article entitled “NHS will cough up for music lessons and manicures.” It was referring to the three year trial of personal health budgets, whereby people in the NHS Continuing Care programme are able to determine themselves, how best to spend the money allocated to them.    Their budgets are of course typically spent on many items one routinely sees in schedules of loss, namely: carers, mobility aids, domestic assistance and medical expenses. However, the article makes reference to less usual expenses, such as manicures, hairdressing, musical instruments, theatre trips, craft materials and cooking utensils. The article mentions one woman with depression, using some of her budget to learn dress-making; another with multiple sclerosis, having used theirs to purchase a cat and reflexology sessions; and another with chronic lung disease, using theirs for singing lessons.   It is clear that such disperate, diverse and unusual uses for the personal health budgets were greatly therapeutic to the individual patients. However they are rarely seen claimed for in domestic personal injury cases.   Particularly, the use of “assistance animals” is something which is not always appreciated in the UK (beyond guide and hearing dogs), as it is in other parts of the world. Certainly in the USA they are medically recommended by physicians to help temper the symptoms of a range of physical and psychological illnesses. The author has had some experience of observing a case in the US Federal Court in May of this year, involving a woman with depression allegedly caused following a personal injury, who had a rather fine Airedale terrier who was trained to demand attention when it sensed his mistress was feeling low, thus distracting her from her condition. She described the dog as being essential to her health and wellbeing and hinted that he had prevented several suicide attempts. Should personal health budgets become the norm, the range of expenditures is likely to broaden away from the more conventional expenses associated with long term care. This will undoubtedly affect the range of heads of loss litigators are likely to come to have to consider. Should “assistance animals” become to be more recognised as an effective non-medical means of mitigating the symptoms of injuries (probably more commonly psychological), lawyers can expect to increasingly come across claims for the same. Perhaps in time, it will be necessary to have Ogden Tables for the life expectancy of different types or breeds of animals, or suggested actuarial tables relating to the cost of their keep.       NB, these cats are NOT assistance / service animals  

JURISDICTION, CONSUMER PROTECTION, CRUISING BY FREIGHTER AND A MOONLIGHT FLIT (FROM AN AUSTRIAN HOTEL)

     Peter Pammer sounds like the name of a character from a (badly written) sitcom, but is in fact the name of an Austrian with an eye for a bargain. While searching online for a cheap holiday, Mr Pammer alighted on the website of a German Company: Internationale Frachtschiffreisen Pfeiffer GmbH. This entity acted as an intermediary for the sale of an unlikely sounding voyage (a holiday of sorts) from Trieste to the Far East. The vessel which was to operate the voyage was an industrial freight ship. Sailing on such a ship might not obviously have conjured thoughts of reclining on a sun deck sipping gin and tonic, but the website did promise Mr Pammer (and anyone else who read it) an onboard fitness room, an outdoor swimming pool and a saloon, together with onboard video and television access. There was also a promise of double cabin accommodation with shower and toilet and a separate living room. The website further indicated that the freighter would make ports of call from which excursions ashore could be taken. Mr Pammer was sufficiently attracted by the website offer to enter into a contract for the voyage, but this was not with the intermediary company, but, instead, with another German corporate entity: Reederei Karl Schluter.             Mr Pammer apparently refused to embark on the freighter; perhaps predictably, it was his view that the conditions on board did not meet the description provided on the website. He had paid EUR 8,500 for the voyage and sought a refund. The German company – Reederei Karl Schluter – reimbursed only EUR 3,500 and Mr Pammer brought proceedings in the Austrian Court (viz. the Court of his nationality and domicile) for the balance: EUR 5,000. Reederei Karl Schluter contested jurisdiction on the ground that it did not pursue any professional or commercial activity in Austria and, accordingly, the Austrian Court lacked jurisdiction. At first instance, the Austrian Court declared that it had jurisdiction on the ground that the voyage contract was a consumer contract (for regulated “package” travel) and the intermediary company had, by internet advertisement, engaged in advertising activity in Austria. On appeal, Reederei Karl Schluter was successful on the ground that the index contract was a contract of carriage, rather than a consumer contract (the fact that the voyage afforded – or ought to have afforded – a degree of comfort to the passenger did not convert a contract of carriage into a consumer contract). Undaunted, Mr Pammer appealed to the Austrian Supreme Court which stayed proceedings and referred the following questions to the European Court of Justice Pammer v Reederei Karl Schluter GmbH & Co KG [2010] (European Court of Justice: C-585/08) “1. Does a voyage by freighter constitute package travel for the purposes of article 15(3) of Regulation No 44/2001? 2. If the answer to Question 1 is in the affirmative: is the fact that an intermediary’s website can be consulted on the internet sufficient to justify a finding that activities are being ‘directed’ to the Member State of the consumer’s domicile within the meaning of Article 15(1)(c) of Regulation No 44/2001?” Mr Pammer’s case highlights, perhaps, a phenomenon that is increasingly experienced by English consumers who are injured while enjoying – if that’s the right word – holidays overseas. They book a holiday by means of a website. The holiday is a not a regulated package (within the meaning of the Package Travel etc. Regulations 1992). The consumer is injured while using the services provided by his or her holiday accommodation and would like to bring proceedings in this respect in the English courts. The Hotel is owned/operated by a foreign company which provides an obvious impediment to English jurisdiction. If the website operator is also foreign owned/operated then that might seem to rule out any English proceedings unless it can be said that the contract is a consumer contract and that the website activity is directed to the Member State where the consumer is domiciled (England) within the meaning of article 15(1)(c) of the Judgments Regulation. The outcome of the reference to the ECJ in Pammer (joined with another case Hotel Alpenhof GesembH v Oliver Heller [2010] (C-144/09) which involved a consumer leaving a Hotel without payment), together with a more recent ECJ decision (Muhlleitner v Yusufi & anor. [2012] (European Court of Justice: C-190/11), now suggests that where the internet trader has manifested an intention to direct activity to a Member State other than that of its own domicile/registration then article 15(1)(c) will be satisfied and the English consumer injured overseas can nevertheless pursue a claim against the foreign internet trader in England. Such intention may be evidenced by the nature of the relevant trading activity (as found, for example, in tourism services), mention on the website of an international clientele or an itinerary comprising visits to Member States other than that in which the trader is resident or even simply the use of telephone numbers with an international code. The jurisdictional hurdle for the English consumer to jump is not a very high one. Internet holiday sales – whether or not the resultant contracts are “packages” – are now very common. Often, overseas bed-booking intermediaries will assert that a consumer’s contract is with the local (overseas) Hotelier or service supplier. In such cases, the Odenbreit decision and section 3 of the Judgments Regulation provides a potential jurisdictional route to a claim against the local supplier’s (foreign) insurer in the English Courts, but Pammer/Hotel Alpenhof/Muhlleitner now provide a potential basis for suing the tortfeasor service supplier itself in England – another useful weapon in the English consumer’s jurisdictional arsenal.

Quantifying Future Loss of Earnings: Ward v Allies & Morrison Architects [2012] EWCA Civ 1287

At the quantum only trial of a personal injuries matter, HHJ Cleary held that he did not have sufficient evidence pertaining to the claimant’s level of likely future earnings and the likely duration therof. Nor was he satisfied that the claimant was disabled. Accordinly, the trial judge made a lump sum award of £30,000 to allow the claimant to retrain following Blamire v South Cumbria HA [1993] P.I.Q.R. Q1, in addition to some £24,000 in general damages and £19,750 for past loss of earnings. The Claimant appealed on the contentions (amongst others) that the Judge should have used the Ogden tables to calculate lost future earnings (expected to quantify a loss of £176,633.46 on the basis that the Claimant expected to become a theatrical model maker) rather than have made a broad brush Blamire award.   The Court of Appeal (Aikens LJ, Kitchen LJ & Sir Richard Buxton) held that whilst the Ogden tables should be the usual method of quantifying such loss, this depended on the court’s ability to make findings of fact as to the likely earning capacity of a claimant, which the Judge in the instant case was unable to do. It was re-emphasised that it is for a claimant to prove their loss in this regard. In the instant case it was held that the judge was entitled to hold that there were too many imponderables to have allowed a firm finding as to the Claimant’s likely career progression and thus her future loss of earnings award. Thus the Judge was entitled to make a Blamire award.  

Claim dismissed - but do appeal!

The unfortunate Ms Drysdale was injured on the first day of her tenancy when she was ascending the steps to the property she had rented. She fell on the middle of three steps which had been painted red by the landlady to improve their appearance. There was a low wall (9.5 cm) next to the steps and a 2.5 metre (8 feet) drop on the other side of the wall. Ms Drysdale fell over the wall and was seriously injured. The judge in Drysdale v Joanne Hedges (27th July 2012, Unreported) found that the drop was dangerous and a reasonable landlord ought to have raised the wall or provided a guardrail. He also found that the paint increased the slipperiness of the steps. Nonetheless he dismissed the claim commenting that he had considerable sympathy for Ms Drysdale but that her remedy could only be in another court. The judgment provides an interesting analysis of what duties are owed by a landlord to a tenant for personal injury and in what circumstances. The case was brought under the Occupiers’ Liability Act 1957 (‘OLA’), the Defective Premises Act 1972 (‘DPA’) and at common law. The judge considered that the OLA did not apply: at the time of the accident the tenancy and occupation had commenced. He held that parliament could not have intended s. 4 of the ‘DPA’ and s. 2 of the OLA both to define a landlord’s duty. In fact s. 4 of the DPA replaced s.4 OLA. The judge turned to s. 4 of the DPA. He noted that in order to show a breach of the tenancy agreement and s. 4 Ms Drysdale had to show the premises were ‘not in good repair’. The judge cited Alker v Collingwood[2007] 1 W.L.R. 2230 in which a claimant had argued that a glass panel in a door in rented premises was dangerous because it did not contain safety glass. Carnworth L.J. said that a duty to repair could not be equated with a duty to make safe. You could let out a house with a very steep stairway with no railings but s. 4 does not require you to make safe such a dangerous feature. The judge also referred to Quick v Taff Ely Borough Council [1986] QB 809 in which Lawton LJ said ‘a tenant must take the house as he finds it; neither a landlord nor a tenant is bound to provide the other with a better house than there was to start with’. Applying all of this the judge found that although the drop from the middle step to the basement was dangerous, it was not out of repair; the drop from the steps would not have been unusual at the time the house was built. He also concluded that the steps were not actually out of repair. Accordingly there was no breach of section 4. The judge then turned to the common law. He observed that Cavalier v Pope [1906] AC 428 decided that a landlord who lets premises in a dangerous condition owes no duty to remedy the defect and no duty of care to a third party injured as a result of the defect. That decision had been criticised and attempts had been made to limit its effect. The claimant in Lips v Older [2005] PIQR P14 suffered a similar accident to Ms Drysdale. He was successful but Cavalier v Pope was not mentioned. It was also not mentioned in Sowerby v Charlton [2006] 1 WLR 568 by the Court of Appeal. That case also involved similar facts but the case was about admission of liability and whether a judgment should be set aside and not whether such a common law duty was owed. The judge concluded that Sowerby did not bind him. In the end the judge took the view that he was bound by Cavalier so far as the unguarded drop was concerned and that the landlady had no duty to guard it. However he did consider that she owed a duty to take reasonable care to ensure that the application of the paint did not create an unnecessary risk of injury. Without such a duty a landlord would have carte blanche to act with impunity and create dangers which would not be caught by the 1972 Act. Even though he found there was a duty in relation to the steps and that the presence of the paint unnecessarily increased the risk, he did not find a breach. A knowledgeable person might have known that the B & Q paint would have increased the risk but not the ordinary man on the street. Accordingly it could not be said that the landlady had failed to take reasonable care. So, no duty under the Occupiers’ Liability Act where section 4 of the DPA applies. No breach of duty under section 4 of the DPA where there is no disrepair. No duty is owed at common law by a landlord who lets premises in a dangerous condition (Cavalier is still good law) but a landlord owes a duty to take reasonable care not to create an unnecessary risk of injury. It is not clear whether the Claimant will appeal – watch this space!

A Tale of Two Countries: applicable law in a claim against a foreign (French) insurer

Kira Middleton v Allianz IARD SA v Erika Lee Middleton [2012] EWHC 2287 (QB)     This matter arose out of a road traffic accident in France on 6 February 2002. The Claimant was a child born on 28 September 1999. The Defendant was an insurance company registered in France. The Third Party was the Claimant’s mother and became a party to the proceedings when a Part 20 (additional) claim was brought against her by the Defendant. The Claimant and the Third Party were British nationals. On 6 February 2002 they were in France; the Claimant lived there with her mother at the time (in the house of her grandmother near Bergerac, France).  A family friend (also a British national), was visiting the home of the Claimant’s grandmother. The friend was driving a Renault Espace vehicle and reversed at a time when the Claimant was behind her. The Claimant was struck and knocked to the ground by the reversing vehicle. The Claimant suffered a very significant brain injury, together with other injuries of the utmost seriousness. The Claimant was in a coma for 4 weeks. She was left with very significant care, medical, physiotherapy and accommodation/equipment needs. In the period since the accident the Claimant and her mother had returned to England where the Claimant was, by the time she issued proceedings, domiciled. It was common ground that the Claimant was entitled to bring proceedings directly against the French-registered insurer in the English Courts (being the Courts of the Claimant’s domicile) by virtue of section 3 of EU (Council) Regulation 44/2001 and the decision of the European Court of Justice in FBTO Schadeverzekeringen NV v Jack Odenbreit ECJ 13 December 2007 [2007] EUECJ C-463/06. The issue in the case concerned applicable law. The parties agreed that this issue was to be determined by reference to Part III of the Private International Law (Miscellaneous Provisions) Act 1995. The starting point was that French law – the lex loci delicti (the law of the place where the events constituting the tort occurred) – should be applied. However, the presumption that French law applied could be displaced where the Court was satisfied that it was, by reference to section 12 of the 1995 Act, “substantially more appropriate” to apply the law of another country in preference to the lex loci delicti.  The Claimant’s case was that French law, as the law of the place where the accident occurred, was applicable to the substantive issues in the claim and, by virtue of the same and the application of the French Loi Badinter, the liability of the tortfeasor (for which the Defendant was obliged to provide insurance indemnity) was strict. The effect of this would be that contribution from the Claimant’s mother would not be available. Unsurprisingly, the Third Party made common cause with the Claimant on this issue. The Defendant’s case was that it was substantially more appropriate that English law should be applied (in preference to French law). The question of the law applicable to the claim was tried as a preliminary issue by Griffith Williams J and a reserved judgment was handed down on 1 August 2012. The Claimant’s arguments prevailed and it was held that it was not substantially more appropriate to apply English law to the substantive issues in the case, including liability. Accordingly, French law applied (with the result that the Claimant would be able to rely on the Loi Badinter). The Judge applied the conventional three-stage process to the section 11/section 12 exercise in which stage one involves identifying the issue to which it is suggested the general (section 11) rule is not to be applied (for example, the issue of liability); stage two involves identifying the factors which connect the tort to the place where it happened (France) and the factors which connect the tort to the forum (England); and, stage three requires an assessment of the significance of these factors (as they connect the tort to each jurisdiction) to determine whether section 12 should be applied (see, Roerig v Valiant [2002] 1 WLR 2304 (CA)). The Claimant, her mother (the Third Party) and their wider family had a longstanding and significant connection with France (where they were living when the accident occurred) and, although they had moved back to England in the period since the accident, it is not surprising that their connection with France persuaded the Judge that it was not substantially more appropriate to apply English law. The significance of the decision lies in the Judge’s rejection of the following (somewhat novel) arguments advanced by the Defendant at trial. First, the Judge was not persuaded that the coincidence in the nationality of the Claimant, her Mother (Third Party) and tortfeasor should be given greater weight than the domicile of these parties – and the French insurer – at the time that the accident occurred (ie. they were all domiciled in France). It had been argued for the Defendant that nationality was a more stable feature than domicile (which could, as here, change over time) and so should be given proportionately greater weight. This argument did not succeed and represents, perhaps, a more or less subtle change of emphasis from the approach taken in Edmunds v Simmonds [2001] 1 WLR 1003 (QBD) (where the country of registration of the insurer was accorded less weight) and Harding v Wealands [2005] 1 WLR 1539 (CA) where, in the Court of Appeal (before the case was appealed on a different issue to the House of Lords), nationality of the tortfeasor was given considerable weight as a material factor. Second, the Judge was similarly unpersuaded that it was more appropriate for English law to be applied because, as a result of English authority (Harding Wealands [2007] 2 AC 1 (HL(E)), the Claimant’s damages would be assessed according to English law in any event because such assessment is governed by the law of the forum even where foreign law applies to the substantive issues (the Defendant had pointed out that, at odds with the conventional approach in continental legal systems, the English common law permitted different issues to be determined by the law of different jurisdictions and also recognised a distinction between the substantive issues (determined by the applicable law of the tort) and the procedural (determined by the law of the forum)). It was held, rejecting the Defendant’s argument, that the accident occurred in France where the Loi Badinter would apply and, by implication, the injured party (and insurer) would have a reasonable expectation that the Claimant would take advantage of this – a view that was consistent with interim payments and correspondence from the Defendant insurer which, contrary to its stance in the preliminary issue, had initially proceeded on the basis that the French Loi Badinter would apply (the Judge’s conclusions in this regard represent a departure from the approach taken in Dawson & Dawson v Broughton (2007) 151 Sol J 1167). This is, perhaps, one of the last cases where applicable law will be determined by reference to Part III of the Private International Law (Miscellaneous Provisions) Act 1995. Accidents which post-date 11 January 2009 are now dealt with by reference to the rather different considerations of the Rome II Regulation on applicable law (see, European Parliament and Council Regulation (864/2007) on the Law Applicable to Non-contractual Obligations).

Definitely a good walk spoiled: Hammersley-Gonsalves (A child by his litigation friend T Gonsalves) v Redcar & Cleveland BC

Some things simply make one feel old: the 90s revival, being older than your doctor, complaining about people playing music on public transport.  To this (abridged) list I can now add school games lessons.  Back in my day (a phrase that can be added to the aforementioned list) school sport largely consisted of being cold and taking part in team games in the winter (good character building stuff no doubt) or in the summer, a bit of cricket and then pretending that anyone cared about athletics.    What wasn’t contemplated was teaching the pupils how to play golf, and if Hammersley-Gonsalves (A child by his litigation friend T Gonsalves) v Redcar & Cleveland BC is anything to go by, a very wise policy that was indeed.  The decision in Hammersley-Gonsalves has just been handed down by the Court of Appeal.  The Claimant, who at the time of the accident was almost twelve years old, was being taught golf at his secondary school.  The school had given 22 boys six indoor golf lessons.  For the seventh lesson, the enterprising PE teacher had created a golf course in the school grounds. Quite properly, the teacher taking the lesson had told the pupils, who each had one club and one ball, not to use their club or hit anything until instructed to do so.  The pupils walked out onto the school grounds in single file.  However, boys being boys, one of the children decided to disregard the instruction and when having reached the school field, put his ball down and took a swing. Unfortunately, this resulted in C being hit in the face by the golf club.  Equally unfortunately, this not being a proper golf club, there wasn’t a collection of doctors in the club house bar. The Claimant succeed at first instance, with the judge finding that  the teacher could not see what the pupils were doing, and that he did not see the pupil swing the club that hit the Claimant.  As such, it was held that the lesson had not been adequately supervised and consequently that the Defendant local authority had not met the appropriate standard of care. The Court of Appeal had no trouble with the judge’s finding that the teacher could not see every pupil at every moment.  However, it was difficult to see how the Claimant could succeed absent an allegation relating to staffing ratios.  It was obvious to the Court of Appeal that one teacher could not be expected to see every action of 22 boys when walking in single file, however, on the judge’s finding a lack of adequate supervision was not made out. There had been no history of bad behaviour and the action of the careless young golfer was unexpected. Although the question of appropriate staffing ratios had not been argued, in the cricumstances closer and additional supervision was not required given the age of the children and the nature of the activity.  Also, even if the teacher had been negligent in not observing the boy swinging the club, it also had to be established that that failure was causative of the Claimant’s injuries.  The judge had not dealt with this and there was no finding that on a balance of probabilities any action by the teacher would have prevented the accident.All in all it would have been far better to stick with football.

The addition of a late expert: case note

Van Niekerk v Carnival Plc & Anor. [2012] LTL 13/6/12 (QB, HHJ Seymour QC)   This claim concerned further directions for a High Court trial that was listed a little over 2 months after a Pre-trial review in which further permissions for expert evidence were sought. The Claimant’s husband had died on holiday while he had been taking part in a diving excursion arranged by or through the Defendant cruise line operator. Liability, causation and quantum were all in issue. The Claimant brought a substantial claim for damages. The Claimant’s schedule of loss included, among other things, a claim for loss of financial dependency based on pension income. In correspondence, the Defendant had queried the calculation of this head of loss. Approximately, two months before the date fixed for trial of liability and quantum the Claimant applied for permission to obtain and rely on a report from an expert forensic accountant on the investment growth rates relating to the financial dependency claim. Each party had also obtained a medico-legal report on the cause of death. The Claimant's expert was a histopathologist. The Defendant's expert was a cardiologist with experience in the cardiological aspects associated with diving. The issues considered at the Pre-trial review concerned: (i) whether permission should be granted to adduce expert accounting evidence; (ii) whether directions should be given for a joint statement by the cause of death experts; (iii) the appropriate order for costs.HELD: (1) Permission was granted to obtain expert accounting evidence limited to the issue of investment growth rates - while this evidence was being sought at a late stage, it would likely assist in the accurate calculation of loss and would be helpful to the Trial Judge. (2) There was potential value in the cause of death experts producing a joint statement, despite the risk that it would simply repeat their individual reports (and in spite of the fact that they were experts in different disciplines). (3) Although the Claimant had succeeded on her application to admit accounting evidence, it had been necessary because there was a deficiency in her case which the Defendant had pointed out some months earlier, and she had sought to adduce additional evidence close to the trial and in circumstances where it raised serious questions about whether the trial could proceed in the event that permission were granted. The issue about a joint experts' report had been a serious issue. Taking those issues into account, the proximity to trial and the matters on which the parties had argued, it was appropriate to consider the hearing as a pre-trial review. In those circumstances, the appropriate order for costs was costs in the case.

A catastrophic getaway

  Mr O’Brien and his nephew Mr Joyce must be amongst the most incompetent thieves around. They stole a ladder from the front garden of a house and put it into the back of the van but could not close the door. Mr O’Brien drove the van off to make a speedy getaway whilst Mr Joyce hung onto the back of the van, standing on a footplate with the ladder under or over his right arm. He was holding onto the door or roof whilst a door was flapping around. The van lurched around a bend without reducing speed making Mr Joyce yet more unstable. Finally, on another bend he lost his grip, fell and suffered a severe head injury. Mr O’Brien seemed more concerned about trying to hide the ladders than helping his nephew. His excuses for the accident were inconsistent, ridiculous and not worthy of a schoolboy. He said that he did not know that his nephew was hanging onto the rear of the vehicle by the doors or ladders, that his nephew clambered through the back of the vehicle to secure the doors which had come open, that he was riding on the footplate as a ‘joke’ and that his nephew had got out of the van to secure the doors and was not on it at the material time. The judge commented that it was no surprise that nobody wished to call him as a witness or rely upon his evidence. The case was Joyce v Tradex Insurance Company Limited [2012] EWHC 1324;  the issue was whether Mr Joyce could recover damages for personal injury from Mr O’Brien when the claimant was injured whilst both were engaged in a joint criminal enterprise.   Cooke J found that Mr Joyce’s injuries were caused by the speed of the vehicle (essential to the getaway) and his position on the back of the vehicle (holding the ladders and the van whilst standing on the footplate). What Mr Joyce had done was so unusual as to be as causative of his injuries as Mr O’Brien’s driving. Accordingly the claim failed on causation. The claim also failed as a matter of general public policy: a participant in a joint enterprise theft which involves a speedy getaway in a van with a participant driving and the other clinging dangerously to the stolen items and the van cannot recover for injuries sustained in the course of that enterprise. The driver could not owe a duty to his co-conspirator and it was not possible to set a standard of care. What’s more, risk and danger were inherent in the enterprise. Accordingly Mr Joyce’s own criminal conduct precluded him from recovering. (Image Courtesy of Freefoto.com)