piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

BBC Expose of 'Crash for Cash' Ring

For some light relief (this is being posted on a Friday afternoon after all!) any practitioner involved in PI cases where fraud is alleged could be advised as to look no further than the detailed article published on the BBC Wales’ website about a successful prosecution of a so-called ‘crash for cash’ ring, in this case an extended family. This would appear to be something of an extreme case, the publicisation of which will no doubt be pleasing to insurance companies seeking to highlight what they suggest is the prevalence of such behaviour, albeit on a less industrial scale.   The modus operandi of the Yandell family from south Wales was to submit claims for entirely fraudulent road traffic accidents replete with bogus repair invoices, hire car charge invoices and other bogus evidence as well as various friends and relatives roped in as phantom passengers. Police suspected they made in excess of £2 million over the years.   A particularly (though soberly unsurprising for anyone concerned with such claims, such as the author) runs:   “ ‘Originally they'd tried a couple of collisions to get a bit of extra cash,’ said DC Jon Parkinson. ‘They realised there was a lot of money to be made.’   The Yandells also realised that insurance companies would soon become suspicious if the same names kept cropping up on claims.To get around this, they began roping in friends and other family members. The more names and addresses involved, the less risk there was of insurance company fraud investigators smelling a rat.   It worked something like this: 1) The Yandells and their associates would invent car accidents in which one party would pose as the non-fault driver 2) The at-fault vehicle would either have high mileage or be mechanically problematic. No loss as it was worth more as a write-off and money could be made by removing parts, headlamps, gearboxes 3) The non-fault party then submits an insurance claim for damage to their car, personal injury, courtesy car, crash repairs and so on 4) The Yandells would submit fraudulent courtesy car and repair invoices to insurers 5) Other family members and friends or friends-of-friends would then be roped into the deal. They agreed to lie and say they were in the car at the time 6) A flurry of cheques follow ranging from £10,000 to £40,000 per accident - new cars, personal injury payouts, courtesy car charges and bogus repair bills   But the accident had never happened. So, before any inspectors arrived from insurance companies, the Yandells had to make sure the cars looked suitably smashed up.   The gang would damage cars with hammers, or drive cars into one another ... ”   The extensive article includes photographs and excerpts from BBC Wales' Week In Week Out current affairs programme, including footage of cars being deliberately damaged to bolster claims – to repeat, it’s really worth a read/watch!   The good news is that the report states that the Yandells have been stopped. Prosecutions were buoyed by the availability of CCTV footage as well as intelligence gleaned from social media. The BBC suggested that in total over the past five years some 83 people have been found guilty in the criminal courts for this fraud, specifically: 81 on conspiracy to defraud and two for theft. It is said that they received sentences ranging from six years in jail to suspended prison terms. Next week the final five people involved are due to be sentenced.   The article is available at http://www.bbc.co.uk/news/uk-wales-35357195.  

Top personal injury decisions of the Court of Appeal in 2015

The Court of Appeal has made a number of important decisions in 2015 in the field of personal injury. As the year draws to a close, Ella Davis and I review some of the most important of them for the PI practitioner. They cover psychiatric damage, causation, quantum, the Athens Convention, jurisdiction, duties of care, vicarious liability and non-delegable duties... Psychiatric Damage Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588 was a case of a claimant claiming damages for psychiatric injury consequent on seeing the condition of a loved one brought about by the negligence of a defendant. Of the four requirements for recovery, the decision focused on whether C’s illness had been “induced by a sudden shocking event.” Three issues were at the heart of the case: (1) whether C had suffered a recognised psychiatric illness, (2) Whether there had been “an event” and (3) how “shocking” the event must be. Edward Bishop QC provided a masterly analysis of this and other decisions in the 1 Chancery Lane October 2015 PI Briefing. In brief, C’s wife became extremely unwell due to the negligence of D. C claimed he had suffered psychiatric injury as a result of the shock of seeing his wife’s sudden deterioration and appearance in hospital. The CA confirmed that courts should pay close attention to diagnostic criteria, that whether an event is ‘horrifying’ must be judged by objective standards and by reference to persons of ordinary susceptibility and that for an event in a hospital to be ‘shocking’ required something “wholly exceptional in some way so as to shock or horrify”. It also considered what was meant by an ‘event’ and ‘sudden’ finding that C had not been exposed to one event (“a seamless tale with an obvious beginning and an equally obvious end”) but a series of events with no “inexorable progression”. What had happened was not sudden, it had not caused an “assault upon the senses” but at each stage C had been conditioned for what he was about to perceive. Causation Reaney v University Hospital of North Staffordshire NHS Trust  [2015] EWCA Civ 119 was considered on this blog in a posting by Ella Davis “Quantity not Quality”. She rightly observes that the decision brings clarity to the law rather than any new departure. The CA considered causation in a case where a patient was a paraplegic requiring a care regime (due to non-negligent causes) but due to the negligence of D causing pressure sores, her care needs were increased. The question was whether D caused all her care needs or whether D was only liable for those needs less the needs which she would have had but for the negligence. The key issue was whether the pre-existing care needs were qualitatively different from those caused by the negligence or whether they were merely quantitatively different. The CA found they were only quantitatively different and therefore D was only liable for C’s increased care requirements. In future parties will doubtless pay careful attention to whether losses are qualitatively or quantitatively different as a result of negligence adding to a pre-existing condition. Causation and the Burden of Proof Graves v Brouwer [2015] EWCA Civ 595 concerned a house fire of unknown cause. Mr Brouwer set fire to a small bundle of papers in the passageway next to his house. Very shortly afterward the roof of his neighbour’s house caught fire. The experts agreed that the chances of an ember from the papers travelling to the eaves of the building and starting a fire were very low but, absent arson, were unable to come up with a more probable cause. The judge rejected arson as fanciful and found that, while the flying ember theory was scientifically improbable, the Claimant succeeded on causation. The Court of Appeal overturned her decision saying she had failed to ask herself the ultimate question whether the flying ember theory was more likely or not to be true. The fact that no other possible causes were identified, in large part because there was no investigation at the time, did not make it more probable than not the fire was caused by a flying ember. As Roderick Abbot observed in his blog post “Sherlock Holmes in the Court of Appeal”, the exercise is not one of identifying the least unlikely cause. The Claimant had failed to discharge the burden of proof and that was all the judge was required to find. Quantum Billett v Ministry of Defence [2015] EWCA Civ 773 concerns how courts should assess damages for loss of future earning capacity in circumstances where the claimant suffers from a minor disability, is in steady employment and is earning at his full pre-accident rate. Should the court follow the traditional Smith v Manchester approach or should the court use the Ogden Tables, suitably adjusted? C suffered from a minor Non Freezing Cold Injury (“NFCI”) which had a substantial impact on his day to day life in cold weather. The condition had less impact on his work as a lorry driver than it had on his leisure activities. The judge found that his loss of future earning capacity should be assessed by using Ogden Tables A and B, suitably adjusted, not by applying Smith v Manchester.  The CA upheld his decision that C had a minor disability clarifying that where a court considers whether an injury substantially limits a claimant’s ability to carry out normal day-to-day activities, the enquiry should be directed at what the claimant cannot do rather than what he can do. The CA overturned the judge’s decision to use the Ogden Tables: unadjusted they produced an unrealistic future loss; adjustment however was a matter of broad judgment which was no more scientific than the approach in Smith v Manchester. The judgment still leaves open the question when a disability becomes serious enough to engage the approach in Ogden Tables A and B and when and how those might be adjusted.  However as Andrew Spencer said in his blog on this case (Loss of future earnings and disability) the case is strong authority for retaining the Smith v Manchester approach in cases of minor disabilities with little effect on the claimant’s chosen career. Athens Convention In South West Strategic Health Authority v Bay Island Voyages [2015] EWCA Civ 708 the CA considered two issues relating to the Athens Convention (which governs personal injury to passengers at sea). The first was whether it extended to claims against carriers for contribution to liability of others and the second was the effect of the time bar prescribed by the convention. Dr Feest was injured in a boating accident in the Bristol Channel. The carrier was Bay Island Voyages (“BIV”). Dr Feest’s first firm of solicitors failed to issue against BIV within the 2 year time limit under the Convention and so she sued her employer SWSHA on the basis the accident occurred in the course of her employment. SWSHA joined BIV who successfully applied to have the Part 20 proceedings struck out. The Court of Appeal found that the provisions of the convention were not directly applicable to SWSHA’s claim against BIV. It also found that the time bar in Article 16 did not extinguish the cause of action but only barred the remedy: this was critical for SWSHA’s contribution claim as, if the limitation provisions had extinguished the right to bring the claim, under the provisions of the Civil Liability (Contribution) Act 1978 SWSHA could only have brought a claim within 2 years of the accident. Ian Miller, who represented SWSHA with John Ross QC, blogged on the case: “Contribution, limitation and the Athens Convention.” Jurisdiction Brownlie v Four Seasons Holding Incorporated [2015] EWCA Civ 665 involved the application of the Canada Trust gloss and a novel question about where damage in a tort claim was sustained. C bought an off package excursion in Egypt in which her husband was killed and she was injured. She booked the excursion by making a telephone call in England to the concierge at the hotel in Egypt. After the accident she brought proceedings in the High Court in contract and tort. She brought three tort claims (1) in respect of her own injuries; (2) as a dependant of her husband and (3) for the loss suffered by her husband’s estate. On appeal the court of appeal, applying the Canada Trust gloss – which is well set out and explained in the judgment - found that there was a good arguable case as to the identity of the defendant and as to whether the contract was made in England. This was not novel point of law: it was merely a finding that it was likely that C had called the concierge with proposals and he had accepted them. Given a contract for an excursion is made at the place where the words of acceptance are received, the contract was made in England. The novel point of law considered by the CA was the question of whether damage was sustained within the jurisdiction for the purposes of C’s claim in tort. This is the requirement of paragraph 3.1(9)(a) of the Practice Direction 6B (the tort gateway) for permission to serve out of the jurisdiction. The CA held the jurisdictional gateway should be interpreted consistently with Rome II and therefore the country in which the damage occurs should be the country where the injury was sustained regardless of the country in which the indirect consequences could occur. Thus the Claimant’s personal claim and the claim on behalf of the estate should be brought in Egypt. However, the dependency claim under the Fatal Accidents Act 1976 was not properly described as a consequential loss it was an independent loss and so the Claimant had shown a good arguable case that English law should apply to this claim. Matthew Chapman who appeared in this case with John Ross QC has blogged on it here. Duties of care and mental impairment In Dunnage v Randall [2015] EWCA Civ 673  the Defendant (“V”) was a paranoid schizophrenic who poured petrol over himself and ignited it, injuring his nephew the Claimant. V’s mental state was agreed to be grossly impaired. On a spectrum between completely healthy volition and absent volition he was at least 95 per cent impaired and probably 100 per cent absent volition. A number of helpful points arise from the three lengthy judgments given. First, the court rejected any need to differentiate between mental and physical impairment. Second, a person with a mental impairment owes a duty of care. Third, the standard of care should not be adjusted to take account of the personal characteristics of the Defendant, it is purely objective. Fourth, only Defendants whose attack or medical incapacity has the effect of entirely eliminating any fault or responsibility for the injury can be said not to have broken their duty of care. The Claimant’s appeal was therefore allowed. Interestingly the court noted that insanity is a defence in crime because criminal law is punitive whereas the function of the law of tort is to compensate victims. Vicarious Liability In Graham v Commercial Bodyworks Ltd [2015] EWCA Civ 47  the court had to determine whether an employer was vicariously liable for the acts of an employee who sprayed a co-worker’s overalls with thinning agent and then set them alight causing him considerable injury. Having looked at the Canadian authorities in sex abuse cases, the court considered that the starting point was to examine whether there was a close connection between the creation or enhancement of a risk by the employer and the wrong that accrues therefrom. In this case the employers created a risk in requiring their employees to work with paint thinners but there was not a sufficiently close connection between that risk and the wrongful act. The wrongful act did not further the employer’s aims and it was not related to friction, confrontation or intimacy inherent in the employer's enterprise. Where the employment does not require the exercise of force and there is no inherent friction, intentional conduct in the workplace, whether horseplay or more serious acts, will not normally give rise to vicarious liability. Vicarious Liability and Non-Delegable Duties The Court of Appeal in NA v Nottingham County Council [2015] EWCA Civ 1139 held that a local authority was not vicariously liable for the abuse of a child by the foster carers with which it placed her, nor did it owe her a non-delegable duty to protect her from harm. The relationship between the local authority and the foster carers was not sufficiently akin to one of employment to give rise to vicarious liability. On the issue of a non-delegable duty all three members of the court of appeal gave different reasons summarised in our November 2015 PI Briefing. In brief, Tomlinson LJ held that the local authority had discharged rather than delegated its duty in placing the child with foster carers. Burnett LJ held that what the Claimant sought to do was to expand the common law imposing a strict duty on local authorities on the basis that foster parents were not always able to satisfy a claim. Black LJ held that it would not be fair just and reasonable to apply such a duty; in fact it would be unreasonably burdensome and potentially harmful if it led to over cautious practice.  

Autumn Statement for PI Lawyers

The government has released a summary of the Autumn Statement with 20 Key Announcements, the last of which will be of great interest to personal injury lawyers. It reads as follows: “20. People will no longer be able to get cash compensation for minor whiplash claims To make it harder for people to claim compensation for exaggerated or fraudulent whiplash claims, the government is ending the right to cash compensation. More injuries will also be able to go to the small claims court as the upper limit for these claims will be increased from £1,000 to £5,000. This means that annual insurance costs for drivers could fall by between £40 to £50 a year.” George Osbourne anticipates these changes “will remove over £1bn from the cost of providing motor insurance” and expects insurers to pass on that saving to consumers. There had already been speculation over the last week that the government was going to introduce its previously shelved plan to increase the small claims limit for personal injury claims when the insurance fraud taskforce reported next month. What is surprising though is the reference to “ending the right to cash compensation”. It is as yet unclear what it meant by this. Footnote 55 to the Autumn Statement gives some clarification by explaining that “Claimants will still be entitled to claim for ‘special damages’ (including treatment for any injury if required and any loss of earnings) but entitlements for general damages will be removed.” It will be interesting to see though how it will be decided that a case falls into the category in which there is no entitlement to general damages. Elsewhere in the Autumn Statement is a statement that the government will reduce the excessive costs to insurers of whiplash claims by “removing the right to general damages for minor soft tissue injuries”. This would seem to cover more than just whiplash injuries. There may also be interesting arguments where multiple injuries are involved. These problems are unlikely to be straightforward and may result in substantial argument, inevitably using court time. It seems likely we will have to wait for the report of the insurance fraud taskforce, due before the end of the year, for further details.  Keen readers who can’t wait until then might be interested in the research briefing published in advance of last Wednesday’s debate in Parliament. Otherwise, watch this space!

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

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

Schedules, Counter Schedules and the Gadget Generation

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

Delaney v Secretary of State for Transport - the “crime exception" is contrary to EU law

The High Court has held that the “crime exception", contained in clause 6(1)(e)(iii) of the Uninsured Drivers' Agreement 1999, is in breach of the United Kingdom's obligations under the EU Motor Insurance Directives and that the claimant is entitled to Francovich damages as a result therof ([2014] EWHC 1785 (QB); see www.bailii.org/ew/cases/EWHC/QB/2014/1785.html).   Given the widespread implications for both insurers and the State, it is likely this decision will be subject to appeal.