piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

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)  

How to admit, pay millions and get off Scott-free

    How do you get off Scott-free when you have made an admission of liability and paid millions in damages? The answer in AC and Others v Devon County Council [2012] EWHA 796 was not by withdrawing that admission but bringing a Part 20 Claim. Even then the result is rather curious but the case raises some interesting points of highways law and permission to appeal was granted this week. TR was the driver of a Landrover on a rural road in Devon which was edged with white lines. The width of the road between the white lines was about 4.6 metres. TR sought to overtake a Vauxhall Vectra at 45mph and his offside wheels went over the white lines at the side of the road. His case was that he got into a rut, steered to get out of it, swerved across the front of the Vectra, left the road and collided with trees. TR admitted liability and presumably settled the claimants’ claims but then brought Part 20 proceedings against the highway authority, Devon County Council. I limit myself to 4 issues. The first is whether the accident was caused by the Landrover entering the rut at the point of a pothole which was a dangerous defect, or whether it entered the rut at a point at which the road was not dangerous. The Council argued that the claimant had to prove whether the precise spot which caused the accident was dangerous (James v Preseli Pembrokeshire District Council [1993] P.I.Q.R. P114). The judge distinguished Preseli on the basis it dealt with pedestrians. She reasoned that cars moved (unlike pedestrians?) and so the relevant issue in a case involving motor vehicles was whether the stretch of road was dangerous and not the precise spot. The second issue relates to the section 58 defence. The Council had a 6 monthly inspection policy. The Code of Practice recommended a 1 monthly policy. The judge found that the Council had not carried out a risk assessment and justified its departure from the non-mandatory Code of Practice issued by the Department of Transport and therefore had not made out the statutory defence. It was not clear what the risk assessment would have identified, the road had always only had 6 monthly inspections and was notable for the absence of accidents. She did not really deal with the interesting submission that the Bolam test should have been applied when considering the reasonableness of the Council’s system of maintenance. The third issue also relates to the section 58 defence. The Claimant submitted that it was not open to the Council to say that if it had in fact taken all reasonable care, the accident would not have been prevented; it relied on dicta in Griffiths v Liverpool Corporation [1967] 1 QB 374. It was submitted on behalf of the Council that a causation defence was open to the Defendant under section 58; it relied on dicta in Rance v Essex County Council (unreported). Without giving reasons the judge appeared to prefer the dicta in Rance but she then found on the facts that a monthly inspection regime would have prevented the accident. The final issue relates to contributory negligence. The judge found that the Claimant was not negligent in crossing the white line marking the edge of the road when overtaking and he was not at fault in reacting in the way he did once he had driven onto the potholed and rutted area. Accordingly she did not make a finding of contributory negligence despite the fact that the Claimant had admitted liability in the main proceedings. Curiously the judge did not refer to the reasons why the Claimant admitted liability. The trial judge gave permission to appeal to the Court of Appeal on section 41, section 58 and contributory negligence. If the Court of Appeal allows the appeal on either sections 41 or 58 but upholds the judgment on contributory negligence then the Claimant will be asking big questions as to why he admitted liability to those who were injured. (Photo courtesy of FreeFoto.com)

If you go down to the woods today...

Picture the scene: a wild area of woodland, full of trees, leaves, plants and wildlife. How nice it would be to have an area like that within the grounds of your workplace. An area like that is going to be full of trip and slip hazards. Surely no-one would want it to be smoothed out, or for the carpet of leaves and bluebells to be replaced with some kind of solid surface?   But what happens when an employee trips in a hole in the course of his employment, and sues relying on Regulations 5 and 12 of the Workplace (Health, Safety and Welfare) Regulations 1992?   Regulation 5 requires that the workplace “shall be maintained… in an efficient state, in efficient working order and in good repair”. The duty is strict. Is that to say that whenever a rabbit or other animal makes a hole in a “workplace” in a wood, their employer is in breach of duty?   Regulation 12(3) provides that (so far as reasonably practicable) workplace floors shall be kept free from obstructions and any article which may cause a person to slip, trip or fall. Does this really apply to slip and trip hazards in a wood, such as leaves and branches.   Fortunately, Regulation 3(4) provides that Regulations 5 and 12 do not apply to:-   … any workplace which is in fields, woods or other land forming part of an agricultural or forestry undertaking but which is not inside a building and is situated away from the undertaking’s main buildings   Does this exclude all fields and woods, or only those forming part of an agricultural or forestry undertaking? The Directive on which the regulations are based provides no assistance.   On 13th April 2012 in Davis v PA Consulting District Judge Gill held that the exclusion was for all fields and woods, and that Regulations 5 and 12 would not apply to any workplace in a wood. He accepted the argument that the words “fields, woods” would be otiose were the narrower meaning to be correct; and also that as a matter of common sense it would be straining Regulations 12(3) and 5 to (or beyond) the limit to apply them to woods. As far as I’m aware there is no higher authority on this question so watch this space for any further developments!

Good with Food?

Case note: Josephine Mitchell & Others v United Co-operatives Limited [2012] EWCA Civ 348 Just occasionally the law reports provide us with a glimpse of the difficult working conditions that some employees have to endure (even where their employer is not to blame for such working conditions). Josephine Mitchell and others, decided by the Court of Appeal at the end of last month, is an example of such a case. The judgment (of Ward LJ) starts like this, “It is a sad feature of our suburban life that some areas are at high risk of crime. One such place is Shaw Road, Heaton Moor, a side road off the main road linking Stockport and Manchester”. Shaw Road had a small parade of shops and the shops included a Co-operative food store where the Claimant ladies were employed as shop assistants. The Court referred to a “Harsh reality” confronting the Co-op and those employed at the shop. The harsh reality was this, “There were two robberies in the eleven years before the Co-op acquired the premises but ten robberies between 25th February 2000 and 7th December 2005. These crimes were committed on 25th February 2000, when a shotgun was produced, 6th November 2001 when the robberies were armed with batons, 16th March 2002 when a knife was used, 13th January 2003, 11th March 2003, 20th December 2003, 24th June 2004 when Mrs Benton and Mrs Goodwin were the victims threatened with a screwdriver, 18th October 2005 and 7th December 2005 when Mrs Mitchell was the victim.”   The Claimants alleged that they had sustained psychiatric injury (specifically post-traumatic stress disorder and anxiety) as a result of the robberies. It was their case that their employer was liable for this and the resultant losses as a result of its breach of an (admitted) common law duty to take reasonable care to keep its employees reasonably safe (applying Swanwick LJ’s test in Stokes v Guest & Others [1968] 1 WLR 1776 (CA) as endorsed by Lord Mance in Baker v Quantum Clothing Group [2011] UKSC 17).   Prior to the robberies in which the Claimants were the victims, the Co-op had introduced a series of measures to reduce the incidence of robbery and these included CCTV monitoring, panic alarms, the provision of “smoke notes” which emitted dye when passing a transmitter at the doorway and a mobile security response team. There was evidence that the Co-op’s policy on the prevention of crime compared favourably with that of other retailers. However, the Claimants complained, first, that the Co-op had removed security screens when it acquired the store and should have installed such screens around the till. The second line of the Claimants’ argument was that the Co-op should have provided a security guard.   The Claimants’ claims were dismissed at first instance. HHJ Armitage QC (sitting in the Manchester County Court) concluded that a screen might have had some deterrent effect, but it carried risks for the staff which outweighed any benefit and so reasonable care for their safety did not require the provision of a security screen or enclosure. He was also satisfied that failure to provide full-time guarding did not amount to a failure to take reasonable care. On appeal, it was held: (1) The Judge had properly distinguished between measures which would have deterred robbers and measures which would have prevented robbery, the former being the correct consideration. His judgment was based on the deterrent effect of screens and of a full-time guard. The reasonable steps to be taken by the employer were to deter robberies; no employer could be expected to go so far as to prevent any robbery taking place. (2) The judge was also entitled to conclude that although a screen might have had some deterrent effect, it carried risks for the staff which outweighed that benefit. The issue was not only what deterrent effect screens would have on a robbery taking place but also what deterrent effect the presence of screens would have to guard the employees against psychiatric injury. (3) There was evidence that the store was running at a loss and a proper approach required a balance to be struck between the probable effectiveness of the precaution that could be taken and the expense involved (small suburban shops did not usually have a security guard permanently stationed). This case provides a rare example of common law pragmatism in the context of an employers’ liability claim: the taking of reasonable care involves the balancing of competing considerations. The Claimants’ experience was unfortunate (to say the least), but – looked at in the round – their employer was not liable for its consequences.      

From vicarious liability to non-delegable duties...

Some cases are destined for not just one visit to the appellate courts but several. You may remember the case of Woodland v Beryl Stopford and others [2011] EWCA Civ 266. Simon Trigger wrote about it on this blog exactly 1 year ago to the day under the heading ‘We can all now resile from pre action admissions’. It is now back on the issue of non-delegable duties in the context of schools and pupils (Woodland v Essex County Council [2012] EWCA Civ 239).   Just to remind you of the facts, a school pupil, Annie Woodland, suffered a hypoxic brain injury on 5th July 2000 as a consequence of getting into difficulties in a swimming lesson. The swimming pool facilities were not those of the education authority, Essex County Council (‘Essex’), but of Basildon Council. Neither the life guard nor the swimming teacher were employees of the school but of Ms Stopford who traded as Direct Swimming Services. The question was whether Essex owed Annie Woodland a non-delegable duty of care. What was contended was that the duty owed by Essex was personal: that it owed a duty to ensure that reasonable care was taken and that it was not sufficient just to take reasonable care in employing competent contractors.   Such a duty only currently exists in well-defined circumstances - employers are required to take reasonable care for the safety of their workmen, dangerous operations on the highway, particularly hazardous operations, the escape of fire and the rule in Rylands v Fletcher. What was being advocated was an extension of the principle to the school-pupil relationship. The case will also be of particular interest to medical negligence practitioners given the discussion of the hospital-patient relationship.   Laws L.J. was prepared to allow the appeal. He considered that there was a justification for imposing a personal duty in both the school and hospital context based on the acceptance of responsibility for a group of persons who are particularly vulnerable or dependent. However he recognised that there needed to be some limit to the scope of the duty and postulated that ‘a school or hospital owes a non-delegable duty to see that care is taken for the safety of a child or patient who is (a) generally in its care, and (b) is receiving a service which is part of the institution’s mainstream function of education or tending the sick’.   The other judges did not think that anything had been placed before them which justified such an extension of the law and accordingly the appeal was dismissed. Tomlinson L.J.  thought that Laws L.J.’s formulation would result in a finding of liability where a child on a school trip was bitten by an animal due to the negligence of a zoo-keeper unless the trip could be considered not to be a part of the school’s mainstream function of education (which he doubted). He observed that the imposition of such a duty would be likely have a chilling effect on the willingness of education authorities to provide valuable educational experiences for their pupils. In dismissing the appeal Tomlinson L.J. observed that only the Supreme Court could impose such a duty as was contended for. I suspect this will not be the last time this case is heard of in the appellate courts.