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Corporate Claims Bulletin | March 2017

  • United Kingdom
  • Personal injury claims litigation - Claims e-briefing

28-03-2017

Welcome to the March edition of Eversheds Sutherland's Corporate Claims Bulletin, which provides an overview of recent case law and important legislation changes.

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

Emma Maylin v Dacorum Sports Trust (T/A XC Sportspace) [2017] EXHC 378 (QB)

A personal injury claim following a fall from a wall at a climbing centre.

The claimant attended a climbing centre with a friend. She had never tried the sport before. Her friend had completed a beginners climbing course and was signed off as “rope competent” and permitted to supervise the claimant. 

They paid for general admission. There were various options upon admission including supervision and training. General admission did not include training. The claimant completed a disclaimer upon admission which included a “Participant Statement” stating climbing was an activity with a danger of personal injury or death, and “participants should be aware of and accept [those] risks and be responsible for their own actions”.

Customers also had to answer yes or no to various questions. The claimant answered yes to questions concerning her understanding that a failure to exercise care could result in injury or death.

The claimant hired a harness but declined to hire specific climbing shoes. No safety briefing was given. Whilst climbing a particular wall for the third time the claimant fell almost from the top of the wall and fractured a disc in her back.

The claimant submitted the defendant had failed to draw her attention to the risks involved in the activity and had failed to provide basic safety information, and that such failures led to her injury.

HELD: At the heart of this case was whether the defendant had a duty to provide a safety induction or briefing, or to supervise the claimant and warn her there was a risk of injury. The risk of falling was obvious and that no amount of matting could avoid the risk of serious injury from an awkward fall. 

The defendant was not required to train, supervise or warn the claimant, and it made no difference that the claimant paid to use the wall. The defendant had taken sufficient steps to draw the claimant’s attention to the risks inherent with climbing. The Participation Statement made it clear climbing was an activity with risk of injury or death.

Regardless of whether the claimant had read them there were notices warning users at the wall the claimant fell from that matting did not make it any safer, and another notice that made it clear broken and sprained limbs were common.  The fact the defendant could have done more, for instances the receptionist spelling out the risks verbally, was not relevant if the steps already taken were sufficient. 

The claim failed.

Criminal Injuries Compensation Authority v First Tier Tribunal & Y (by his mother and litigation friends) [2017] EWCA Civ 139

CA (Civ Div) (Sir Brian Leveson PQBD, McFarlane LJ, Henderson LJ)

A child conceived with a genetic disorder as a result of incestuous rape of his mother was not eligible to claim criminal injuries compensation

Y had been conceived as a result of the rape of his mother by the mother’s father. The father subsequently pleaded guilty to incest.  The mother received compensation but it did not cover Y’s condition, care or upbringing. Y had been born with a serious genetic disorder, probably caused by the incest.

Y brought a claim under the Criminal Injuries Compensation Scheme. The CICA refused the claim on the basis Y was not a victim of a crime of violence. His condition was due to the relationship between his parents, and not the assault itself. 

The First Tier Tribunal found Y had never been in an uninjured state, and had therefore, not suffered injury in terms of the scheme.

The Upper Tier Tribunal held that “in common parlance” Y had suffered injury and that those injuries were attributable to a crime of violence.

The decision was appealed. The Court of Appeal allowed the appeal. 

The scheme is governed by the Criminal Injuries Compensation Act 1995 which was approved by Parliament. It had to be governed by the rules of statutory construction which applied to all such instruments. The Act and the Scheme no longer assess damages by reference to common law principals but on a prescribed tariff.

The terms of the scheme meant the only victim of the crime of violence could be the mother.  To suggest Y was a victim went beyond what the scheme sought to cover.  It was insufficient for the Upper Tier Tribunal to have concluded that in common parlance Y had suffered injury without adequate reasoning to justify that conclusion.

The Court of Appeal went on to comment that the mother should receive compensation for the difficulties she had experienced caring for a disabled child born as a result of the crime committed against her was another matter and one that should be addressed by the Secretary of State.

Quantum

LNS v East Lancashire Hospitals NHS Trust (unreported)

The High Court has settled what is claimed to be the first case following the change to the discount rate which came into force on 20 March 2017 resulting in an increase of £5.5m.

This was a cerebral palsy case where it has been agreed the claimant would recover 50% of the full value of the claim. 

A Joint Settlement Meeting took place in January 2017 where it was agreed the claimant would receive:

  • a lump sum of £1,320,575
  • periodical payments of £50,000 per annum to the age of 17; and
  • periodical payments of £73,500 per annum for life thereafter

The capitalised value of the joint settlement agreement was £3,772,500 which was calculated under the old discount rate of 2.5%.

Under the new discount rate the capitalised value of the approved award was £9,296,673, an increase of £5.5m.  The lump sum increased to £2,122,398.

Practice and Procedure

Thompson v Reeve (20 march 2017) (unreported)

Claimant cancels Part 36 offer to take advantage of the new discount rate

The claimant brought an action for damages following a road traffic accident and pleaded the claim at £347,000.00.

In August 2016 the claimant made a Part 36 offer of £340,000 and the case continued.

On 28th February 2017 (a day after the new discount rate was announced) the claimant’s solicitors sent an email to the defendant’s solicitors withdrawing the offer. 

By way of a letter dated 2 March 2017 the defendants accepted the claimant’s offer. 

The claimant made an application for permission to withdraw the Part 36 offer, and a declaration that the offer was deemed to have been withdrawn on 28 February 2017. 

Service of documents by email can only take place where the receiving party as indicated it is willing to accept service by email (Practice Direction 6A, para 4.1(1)), the defendant had not given any such indication. The claimant conceded the notice of withdrawal was not good service but contended CPR 3.10 could be applied so that the withdrawal could be treated as valid.

CPR 3.10 is the general power of the court to rectify matters where there has been an error of procedure.

The defendant argued CPR 36 is a self-contained code and that CPR 3.10 could not be used in this context.

HELD: The Master held that CPR 3.10 has a wide affect, could be used in this context and applied to CPR 36. In this case the claimant had given notice in writing and it was accepted the defendant had received the email. It was the method of service which was defective and CPR 3.10 was there to cure this defect. The Master held therefore, that it was appropriate to make an order under CPR 3.10. He stated:

“In my view it would not be just or consistent with the overriding objective that a technical breach of the rules should impede the proper assessment of damages in the case”

Caren Sharp v Leeds City Council [2017] ewca civ 33

CA (Civ Div) (Jackson LJ, Briggs LJ, Irwin LJ)

Where a claim is potentially subject to the fixed costs regime, will an application for Pre Action Disclosure attract fixed costs or costs to be assessed if the claim does not continue under the fixed cots regime?

In February 2014 the appellant tripped and fell on allegedly defective paving maintained by the respondent local authority. The claimant’s solicitors had issued a Claim Notification Form (“CNF”) through the EL/PL portal. The claim fell out of the portal, the precise reason appeared to be a matter for dispute but it was thought to be the defendant had not sent in the CNF Response within the prescribed time. The CNF was then treated as a letter of claim and fell within the Personal Injury Protocol.

The defendant failed to give pre action disclosure and the claimant made a PAD (Pre Action Disclosure) application. By the time the PAD came before the district judge the defendant had given disclosure. Nonetheless the district judge awarded costs of the PAD to the claimant. 

The district judge summarily assessed costs in the appellant's favour at £1,250. The respondent appealed and a judge reduced the costs £300 on the basis that they were governed by the fixed costs regime applicable to the EL/PL protocol.

Although the amount in dispute was a modest sum, the issue as to whether the fixed costs regime applied had important practical consequences in terms of the cost/benefit of making applications for pre-action disclosure.

HELD: The fixed costs regime applied to the costs of an application for pre-action disclosure. Pre-action protocols provided for the commencement of claims by means of an online portal. From the moment of entry into the portal, recovery of costs for pursuing or defending the claim was intended to be limited to fixed rates so as to ensure proportionality in the conduct of small or relatively modest claims.

The fixed costs regime was subject only to a very small category of clearly stated exceptions. To recognise other, implied, exceptions would be destructive of the regime's clear purpose. The clear wording of CPR r.45.29A(1) and r.45.29D supported that conclusion that the fixed costs regime applied to cases begun under the EL/PL protocol even though such cases might never reach the stage of court proceedings being issued.

There was real force in the appellant's submission that limiting costs to fixed costs would deprive pre-action disclosure applications of their value as a spur to compliance with protocol disclosure obligations. The fixed costs would refund only a small part of the likely outlay incurred. However, the answer was not to extend the exceptions to the fixed costs regime, but to promote the availability of an application.

To make pre-action disclosure applications subject to assessed costs would risk giving rise to an undesirable form of satellite litigation involving disproportionate expense.

Appeal dismissed.

Other news

Thames water – fine – 22 march 2017

Thames Water have been hit with a record £20m fine for huge sewage leaks.

The fine was imposed on 22 March 2017 following a prosecution brought by the Environment Agency for numerous offences in 2013 and 2014 at sewage treatment works at Aylesbury, Didcot and Little Marlow and a sewage pumping station at Littlemore.

Huge leaks of untreated sewage totalling 1.4 bn litres occurred into the Thames which spread to its tributaries and onto land. The leaks had serious impact on residents, farmers and wildlife (killing birds and fish). It wiped out a season for commercial cray fishermen. 

By way of background, Thames Water made an operating profit of £742m in 2015-16 and paid out £82m in dividends to its shareholders.

In 2013 The Observer revealed the 10 biggest water companies were the most persistent polluters of England’s rivers and beaches committing more than 1,000 incidents between 2005 and 2013, but were fined a total of just £3.5m.

It was noted there was continual failure to report incidents and a history of non-compliance.

Judge Francis Sheridan in this case said of the level of the fine that it should not be cheaper to offend than take the appropriate cautions, and therefore, made the find sufficiently large that Thames Water would get the message.

Fines have increased since the change in the sentencing guidelines. However this is the largest fine imposed to date.

Pre Action Protocol for Debt Claims to come into force

The Ministry of Justice has published the Pre Action Protocol for Debt Claims which is to come into force on 1 October 2017.

The Damages (Personal Injury) Order 2017 (2017 No 206)

This formalised the change to the discount rate from 2.5% to -0.75% which came into effect on 20 March 2017.

Extension of Fixed Fees

There is commentary on the keynote speech of Lord Justice Jackson at the White Paper costs conference where he was discussing his current review of the extension of fixed costs. 

Following the speech it was stated there can be no doubt that Lord Justice Jackson is to look to extend fixed fees across the fast track. He has repeatedly stated this is the missing piece from his original reforms.

The likely implementation date is April or October 2018, once decided.

SRA Referral fee probe over holiday claims

It should be noted there are two areas which fall outside fixed costs in personal injury, which are noise induced hearing loss, and holiday claims.

ABTA have called for a reform of civil procedure rules to impose fixed recoverable costs for holiday sickness claims valued at less than £25,000 following a recent increase in claims far exceeding the recorded incidents of illness in resorts.

It is understood the government are concerned that claims management companies see holiday sickness cases as a partial saviour if whiplash claims are to become more restricted. 

The SRA wants copies of letter templates used by firms when dealing with gastric illness claims as well as details of the number of referrals in the past two years. Solicitors are being told investigation is necessary to rule out misconduct. Payment or receipt of referral fees has been banned for personal injury claims since 2013.

For more information contact

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