Global menu

Our global pages

Close

Eversheds’ Corporate Claims Bulletin _ December/January 2017

  • United Kingdom
  • Litigation and dispute management
  • Personal injury claims litigation - Personal Injury Bulletin

17-02-2017

Welcome to the new edition of the Eversheds Sutherland Corporate Claims Bulletin, which provides an overview of recent case law and important legislation changes from December 2016/January 2017.

We hope you find this briefing useful and informative. If you require any further information, please find our contact details at the end of this newsletter.

Liability

ZURICH INSURANCE PLC V MACCAFERRI LTD (2016) – CA

Background

M had a policy with Z which covered accidental death or personal injury. It contained a condition requiring M to give notice in writing to Z "as soon as possible after the occurrence of any event likely to give rise to a claim". M was also required to give "immediate notice" to Z on receiving verbal or written notice of any claim.

M had supplied Spenax guns used for construction works to a builders' merchant (Jewson Ltd.) which in turn had hired the equipment to a building company (Drayton).

In September 2011 an employee of Drayton was seriously injured when a Spenax gun went off accidentally, hitting him in the face. The employee was rendered nearly blind. M was informed by Drayton in September 2011 that an incident had occurred and Drayton requested that the gun should be taken off hire and kept for investigation. By January 2012 it was clear that M knew that someone had been injured, but no allegations had been made that the gun was faulty.

Proceedings

The employee issued proceedings against Drayton in July 2012. Drayton in turn in March 2013 brought Jewson into proceedings. On 12 July 2013, Jewson then joined M as a part 20 defendant to the claim and M received notice of the proceedings on the 22 July 2013. M notified Zurich of the claim on the same day.

Settlement

The employees claim settled and an agreement was reached with all parties contributing to the settlement.

However, Z refused to indemnify M on the ground that it had failed to comply with the condition concerning notification of possible claims. At first instance the court rejected Z’s defence and refusal to indemnify the claim.

Z appealed and submitted that the condition meant that M had to give notice of the event to Z when they became aware of it and that it was likely to give rise to a claim, or when he ought to have become so aware.

Judgment

The CA again dismissed Z’s arguments and found that they should indemfnify M.

The CA did not accept Z’s construction of the condition. They said that it was a condition introduced by Z into its policy which had the potential effect of completely excluding liability in respect of an otherwise valid claim for indemnity. If Z wished to exclude liability it was for it to ensure that clear wording was used to secure that result and it had not done so. "An event likely to give rise to a claim" meant an event with at least a 50% chance that a claim against M would be brought.

Z’s interpretation of the phrase “as soon as possible” as meaning that even if, when the event occurred, it was not likely to give rise to a claim, the obligation to notify would still arise whenever M knew or should have known that an event which had occurred in the past was likely to give rise to a claim was wrong.

Given the nature of the clause, the ambiguity had to be resolved in favour of M. Z’s construction would impose an obligation to carry out a rolling assessment as to whether a past event was likely to give rise to a claim which was not the case with this policy.

The question to be considered was therefore whether when the event occurred it was likely to give rise to a claim. The CA in this case found that that depended on whether in the light of the actual knowledge M then possessed at the time, whether a reasonable person in its position would have thought it at least 50% likely that a claim would be made.

When the incident occurred, on the facts then known to M, it was not at least 50% likely that there would be a claim. The circumstances of the incident were unclear. That the gun was at fault was no more than a possibility and there were many others.

Therefore Z was not entitled to rely upon the condition as a ground for denying liability and should indemnify M.

BLANDFORD V THE FORESTRY COMMISSION & Others (2016) Bristol CC

Background

The claimant had fallen from a horse when riding on land owned and occupied by the Forestry Commission, (“FC”) the first defendant represented by Eversheds Sutherland.

The third defendant, Woodgate Sawmills Ltd. (“W”) had engaged the second defendant, Steven Edmunds (“E”), a haulage contractor, to transport timber bought from FC.

The claimant claimed that, when riding with two friends on a trail they had used regularly, her horse had been frightened by a lorry on an adjoining forest road, causing it to bolt and throw her to the ground. She suffered rib fractures. She claimed that the driver failed to stop despite noticing the horses, and that there were no warning signs alerting riders to the fact that trees were being felled.

The claimant brought claims in negligence and/or breach of common law duty of care against the defendants and asserted that the defendants had failed to take adequate steps to prevent her riding in the area and that the E's driver had failed to stop to allow the horses to get clear.

The driver stated that he had driven very slowly down the forest road and had slowed further when he saw the horses, as evidenced by his tachograph readings. He said that he would have stopped if he had seen a horse rearing.

The defendants denied any lack of care and argued that, in any event, any such breach of duty had not caused the claimant's injuries.

Judgment

The issue was whether the defendants had caused or contributed to the claimant's fall by failing to take reasonable care for her safety.

In terms of the issues to be decided the court found the following:

(1) Manner of driving - the driver's evidence was preferred to that of the claimant and a fellow rider, which was inconsistent. The driver's account was more probable as he was describing an everyday event unaffected by shock or injury. His evidence in relation to the speed he was travelling at was also confirmed by the incontrovertible evidence of his tachograph recording.

(2) Warning signs - the absence of warning signs did not cause or contribute to the accident. The defendants were not liable merely because there were no warning signs or any other attempt at road closure. The claimant needed to establish on the balance of probabilities that the presence of a moving log transporter on the forest road should reasonably have led to a warning sign being placed at the point at which the trail met the forest road. It was not FC’s duty to be sole guardian of the claimant's safety. Its duty, whether at common law or under the Occupiers' Liability Act 1957, was to take such care as was reasonable in all the circumstances.

(3) Breach of duty - the FC had taken such care as was reasonable in all the circumstances to discharge its duty. It had discharged its duty to visitors. It required contractors to place warning signs if harvesting operations were taking place, and/or to warn visitors in the close vicinity of such a working site. Those requirements were shown in the site specific conditions document, the pre-commencement site meeting document and W’s for the work, which all focused on the safety measures relevant to the site while logging was taking place. W placed the requisite signs in the vicinity of the site. Adequate warning signs were therefore in place. The accident scene was approximately half a mile from where logs were loaded onto the lorry. The road on which the claimant first saw the lorry was not a designated trail for horse riding, though it was reasonable to suppose that a rider might use the trail. It was not, however, necessary to guarantee the safety of such user, merely to ensure that it was clear from obvious hazards. The forest road had a single dominant purpose of providing access for mechanically propelled vehicles within the woodland. It should have been obvious to any reasonable, prudent horse rider that a lorry or similarly-sized vehicle might use the road. The lorry did not constitute an intrinsic hazard to others. Although not conclusive, the fact that the British Horse Society had raised no concerns was powerful evidence against such reasonable foreseeability. The lack of a history of such accidents was also not determinative of the matter, but was again a powerful consideration.

(4) Causation - there were two main strands to the necessary finding: the likely effect of warning signs if they should have been in place and the reason for the horse rearing. The claimant would probably have ignored any warnings signs unless she was where tree-felling work was taking place. Her protest that if she had seen a sign she would have avoided the area was adopted in hindsight. She was ignorant of where she should ride, which was indicative of her general attitude to the use of other people's land. She would have proceeded along the road regardless of warning signs. Nobody knew why the horse behaved as it did, but it was more likely because of the departure of the other horses at speed and the claimant's attempts to stop it following them than the approaching lorry. If, contrary to the findings, there had been want of care, it was not causative of the claimant's fall.

WOOD & Another V TUI TRAVEL PLC (TRADING AS FIRST CHOICE)

Background

The claimants (“W”) had contracted with the defendant holiday company (T”) to provide them with an all-inclusive holiday in a hotel in the Dominican Republic.

W had suffered from acute gastroenteritis as a resulft of eating contaminated food provided by the hotel. The judge found at first instance that the food had been contaminated without any fault on the part of the hotel.

However, the Judge found that the food and drink provided by the hotel was not of "satisfactory quality" for the purposes of Supply of Goods and Services Act 1982 s.4(2) (the “Act”) and entered judgment against T accordingly.

T appealed and submitted that it could not be liable under s.4(2) of the Act because the contract did not contain any terms or conditions concerning the question of property in the food and drink, meaning that the consumption of food and drink at the hotel involved no transfer of property in the food and drink. It argued that the contract was for the supply of services, meaning that it was governed by the implied term in s.13 of the Act, namely that the services should be provided with reasonable care and skill.

In view of the judge's finding of a lack of fault on the part of the hotel, it therefore maintained that the claim should have been dismissed.

Judgment

The CA decided that when customers ordered a meal or drink, the property in the meal or drink passed to them when it was served. It made no difference if the food and drink were laid out in a buffet to which customers helped themselves.

When the customer helped himself to the meal or poured himself a drink, the property in the fare became that of the customer. The judge had therefore been correct.

The contract between the holiday company and the respondents was a contract both for the supply of services and the supply of goods. The goods supplied were not of satisfactory quality because the food in question was contaminated.

Having said that, the status quo in these cases still remained : it did not mean that package tour operators would potentially be liable for every upset stomach which occurred during one of their holidays. Claimants in such cases had to prove that food or drink provided was the cause of their troubles and that the food was not "satisfactory".

In the case of W, the judge had been satisfied on the evidence that W had suffered illness as a result of the contamination of the food or drink which they had consumed.

He had therefore been right to conclude that the provision of contaminated food amounted to a breach of the implied condition in s.4(2).

Practice and Procedure

BRIGHTSIDE GROfUP LTD & OTHERS V RSM UK AUDIT LLP & OTHERS (2017) EWCH

Background / proceedings

The claimant issued a claim form on the 26 April 2016 but did not serve immediately.

On the 27 May 2016 the defendant gave notice to the claimant under CPR 7.7 to serve the claim form or discontinue the claim within 14 days (i.e. by the 10 June 2016).

In accordance with CPR 7.5(1) the "step required" to effect service was the delivery of the claim form to the relevant place, or the leaving of the claim form there, within four months of the claim form being issued. A trainee solicitor from the claimants solicitors attended upon the defendants premises on the 10 June to effect personal service but could not gain entry so the documents were left with a member of security on reception.

The defendants applied under CPR 7.7(3) to dismiss the claim on the grounds that the claim form had not been served at all, or that in the alternative, had been served late. The defendants claimed that service occurred on 14 June, because CPR 6.14 provided that a claim form served within the UK in accordance with CPR 6 was deemed to be served on the second business day after completion of the "step required" under CPR.7.5(1).

The claimants submitted that they had left the claim form at the relevant place on 10 June, and that was sufficient to comply with the requirement of the CPR 7.7 notice, notwithstanding CPR 6.14.

The defendants argued that the purpose of CPR 7.7 was to entitle a defendant to shorten the validity of a claim form which would then replace the obligation to satisfy CPR 7.5 with an obligation to comply with the notice. The defendants therefore submitted that a failure to serve within the time limit set by a valid r.7.7 notice should be the same as a failure to comply with r.7.5 and that therefore in this case the claimant was out of time to serve the claim form.

Judgment

In what appears to be a first decision of its kind, the court held the following in this case:

(1) That service did not take place on the date when the claimants took the "step required" under CPR 7.5(1). Rule 6.14 provided that service took place on the second business day after completion of that step. CPR 6.14 created a fixed rule as to when service of a claim form occurred. The rule applied to all claim forms served anywhere within the UK, and operated independently of any enquiry into when the claim form was in fact received by, or otherwise brought to the attention of, the defendant. Rule 7.5(1) did not create a different regime to that of r.6.14 and did not treat service as having occurred upon the happening of the "step required.

(2) The CPR 7.7 notice required the claim form to be served by 10 June. The date of service set by CPR 6.14 was therefore 10 June at the latest. The "step required" for the purpose of CPR 7.5(1) was completed on that date and therefore the date of service was 14 June. the claimant had therefore failed to comply with the CPR7.7 notice so that the court was entitled to dismiss the claim or make any such other order as it thought just.

(3) However, the court found that the claimants' position was not to be assimilated to that of claimants who failed to comply with CPR 7.5. The claimants' solicitors had in good faith thought that completing the CPR 7.5(1) "step required" on 10 June would comply with the CPR 7.7 notice. The defendants received early confirmation, less than halfway through the period of validity of the claim form, that the claim was to be pursued, and had sight of such detail of the claim as they were entitled to at that stage. The failure to comply strictly with the deadline set by CPR 7.7 notice meant that the defendants received that confirmation one or two working days later than they might otherwise have done. That had not caused them any prejudice or difficulty.

The court therefore applied its discretion and the application for dismissal of the claim was rejected.

KOVACIC V PERSONAL REPRESENTATIVES OF THE ESTATE OF NORMA WROE (DECEASED) (2016) EWCA

Background

The claimant was involved in a car accident and liability was admitted by the defendant.

Having assessed damages, the judge had taken against the claimant because of video surveillance that the defendant's insurers had undertaken which suggested that the claimant was more capable than he was making out in his claim for example the claimant could drive a car and he appeared to be much fitter than he claimed to be. The judge therefore decided that the claim was exaggerated. Nevertheless the claimant was still awarded a total sum awarded of £95,114.

The claimant applied for permission to appeal.

Claimant’s case for appeal

The claimant raised 2 issues with the first instance hearing:

(i)he claimed that the judge had not permitted him to call witness evidence when he wished to do so because the judge had insisted that they should be called on day one when those witnesses were not available, despite the fact that the claimant and defendants solicitors had previously agreed a trial timetable which allowed for those witnesses to be heard at a later stage in the proceedings. The claimant submitted that the video evidence therefore should not have been relied on by the judge as evidence of any lies on his part because it was edited and selective and did not show his daily routine. The claimant said that he could have called witness evidence to counteract the surveillance, but was denied that opportunity by the judge; and

(ii)no award has been made for scarring.

Decision

The application was dismissed.

(1)The CA said that a judge conducting a trial, a very expensive matter both in time and in money, had to have control how the case proceeded. If the witnesses were not there when the judge was ready to hear them, that might be unfortunate but was not a sufficient ground for granting permission to appeal when the only consequence would be that there would have to be a retrial with all the difficulties of witnesses having to remember events even longer ago.

(2)It had to be a question as to whether the judge would really have been much helped by the witness himself coming to give that general evidence. The judge had to deal with the case on the evidence that was before him. He did allow the statements to be read. The fact is that the video surveillance evidence was, in the judge's view, very telling. Had the judge allowed the claimant to call witnesses, it wasn’t apparent that this would have made any difference to his judgment. Therefore the CA found that it would not be right to devote its resources to a full appeal in the case when the likely outcome would be that the appeal would be dismissed, requiring further expenditure for the claimant.

(3)There had been extensive scarring as a result of the accident and that it appeared that no separate award had been made for that. However, the overall figure of £35,000 for PSLA, when the judge had been fully aware that the scarring had occurred because he mentioned it in his extensive judgment and therefore taken this into account in his valuation of the claim.

Other news

•Discount rate decision delayed again.

The Association of British Insurers lost their application for Judicial review of the Lord Chancellors decision to announce the outcome of her review of the discount rate on personal injury damages without a consultation exercise taking place.

However, in any event, the outcome of the review which was to be announced on the 31 January 2017 has been put back to February 2017.

•The Law Society and judges on the Civil Executive team have criticised the MoJ’s plans to raise the small claims limit in personal injury cases to £5000.00.

The Law Society have made their position with regards to the increase in the small claims limit for personal injury clear by stating that if this took effect, it would prevent claimants from recovering their legal costs meaning that many would not be able to obtain legal representation and would have to fight their claims themselves. They have stated that to increase the limit would result in a “David and Goliath” situation in many claims where insurers could afford legal representation whilst claimants would be left having to deal with legal procedure on their own, creating an inequality of arms.

Following on from this, judges on the Civil Executive team have stated that the increase would put considerable stresses on court staff who would have to deal with an increase in claimants acting as litigants in person which may well result in the courts becoming gridlocked in an industry which is being shrunk by cuts in any event.

•Lawyer groups have urged Lord Jackson to rethink his fixed costs plans for claims worth up to £250k.

Organisations across the profession have urged Lord Justice Jackson to be cautious which considering making significant increases in the limit for fixed costs.

The Law Society have said that the proposals may make some cases economically unviable, leaving either successful claimants or their lawyers to foot the bill even if they have won their case.

Although the Law Society acknowledged that fixed costs provides assurances for both claimants and defendants in straight forward low value claims, they stated that it was wrong to apply the same rules to all the cases.

•Doctor jailed after submitting false medical claims

A doctor has been jailed for 2 years for submitting false medical claims in personal injury road traffic accident claims adding up to £183,000.00.

GP Benjamin Chang was found guilty of fraud by false representation and for being in possession of articles for use in fraud and money laundering and will also be subject to a confiscation order.

It transpired that he falsely put forward claims for medical assessments and physiotherapy sessions which had not taken place.

Chang’s conduct came to light when a claimant queried an invoice with his solicitor regarding physiotherapy that he had never received. The solicitor then notified the police.

For more information contact

< Go back

Print FriendlyTwitterLinkedInEmailShare
Subscribe to e-briefings