the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Secondary Wrongdoers

Forget primary and secondary victims.  Are we losing sight of who is really responsible for unhappy incidents that befall claimants in the rush to find a secondary wrongdoer who is more likely to be insured or capable of being publicly admonished? 

The Court of Appeal has recently overturned the trial judge in the case of Vaile v LB Havering [2011] EWCA Civ 246.  The claimant teacher at a special needs school was the victim of a nasty assault by a teenage pupil.  The teacher sued her employer for failing to assess his needs properly as being on the autistic spectrum disorder (ASD) and so rendering her place of work unsafe.  The trial judge agreed that the authority did fail to assess the boy properly, could not see that this had actually made the workplace unsafe or that the failure had actually caused the assault to happen, since it was unclear how he would have been treated differently even with the diagnosis of ASD.  The Court of Appeal differed and felt that breach, danger and causation were all established and the claimant should succeed. 

This is not a new phenomenon.  But there is a feeling in some quarters that there is a growing trend to look to the “secondary wrongdoer” to blame for a claimant’s misfortune, especially if there is liability insurance there.  A violent club-goer attacks another customer at the nightclub, so the victim sues the club owners for letting the assailant in or for allowing the fight to break out. 

We now practice in a world where Legal Aid is unavailable to meritorious claimants in conventional personal injury claims against primary wrongdoers, but it can be provided, for example, to the family of the deceased for inquest proceedings if there is a suggestion of some failing by a public body.  So the family of a troubled (but sane and adult) soul who commits suicide having previously been in care as a child can receive specialist representation to put the local authority under a searing spotlight in a lengthy jury inquest and the months of proceedings leading up to it.  This even though the verdict of suicide is never in doubt and the brutal fact is that the death occurred by the deceased’s own choice.  Does this really provide the family with the “answers” they need and “closure”?  Is this really the best use of scarce Legal Aid funds? 

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