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Corporate Claims - August 2018

  • United Kingdom
  • Personal injury claims litigation - Personal Injury Bulletin

11-09-2018

Liability

Master Caine Steven John Ellis (by his Grandmother and Litigation Friend, Janet Titley) v Mr Paul Kelly, Mrs Violet Ellis [2018] EWHC 2031 (QB)

An eight-year-old child who had been allowed to use a playground without adult supervision and who had been hit by a speeding car as he ran across a road close to a pedestrian crossing was held not contributorily negligent for his serious injuries.

The claimant’s previous experience was that cars would stop at the crossing and at his age he was unable to judge that the car was travelling too fast to stop. A contribution claim against his mother also failed; holding her responsible would impose far too high a standard on an ordinary parent making ordinary parenting decisions about child safety.

Background

The claimant had gone to a playground with his cousins. It was known as a quiet area that attracted many children. His mother had started allowing him and his sister to go out without adult supervision, and always told them to stay together, to stay within a defined area and to be careful. One of his cousins had decided to go to a skateboard park, which involved crossing a lane with a zebra crossing between the playground and the park. Subsequently, the claimant had left the playground on his own to join him. Later, the claimant decided to return to the playground and had run towards the crossing, entering the road at an angle just before it. He had looked at the defendant's car but continued running. He was knocked down by the defendant and suffered a severe brain injury. The defendant had been travelling too fast and had admitted primary liability.

Contributory negligence against the claimant:

There was no hard and fast rule as to the age at which a child could be found guilty of contributory negligence. In judging the actions of a child, the standard of care is measured by that reasonably expected of a child of the same age, intelligence and experience.

The claimant's previous experience of the lane was likely to have been that it was a safe place to be. He knew that the crossing was the safe place to cross. When he had previously encountered cars approaching it, they stopped. It was a great misfortune that the first time he found himself unaccompanied on a road, he had encountered a car driven in a way wholly outside his experience. The only reasonable inference was that he believed the car would stop at the crossing for him.

It was difficult for a child of eight to judge the stopping distance so as to understand that while the car should stop for the crossing it might be travelling at such a speed that it was unable to do so in time.

There had been momentary misjudgement by the claimant balanced against reckless conduct by the defendant, whose driving had been outside the claimant's expectation based on his understanding and experience. It would not be just and equitable to find contributory negligence in those circumstances.

Contribution claim against the claimant's mother

The claimant's mother had told the children to stay together and reasonably expected that the claimant would stay with his cousins. She had been entitled to regard the lane as a safe play area and had taken reasonable precautions by giving the claimant road safety instructions; restricting where he went and telling the children to stay together. Holding her responsible would impose far too high a standard on an ordinary parent making ordinary decisions in the course of parenting as to how to keep a child reasonably safe while gradually being allowed more responsibilities and freedoms.

Natural sympathy for a parent of a child who had been catastrophically injured could not stand in the way of finding legal responsibility in appropriate cases. However, it was undesirable to expand the law so as to routinely attempt to regulate decisions and actions arising in the course of normal daily parenting.

  • Parents were not reasonably able to secure insurance to guard against the risk of claims arising out of their parenting generally.
  • If parents were to be routinely joined to litigation, there would be a real risk that it would encourage an over-cautious approach interfering with parents' assessments of when it was appropriate to allow children some freedom to foster growth and independence.
  • It would impact on the course of litigation.
  • The parent who was best placed to act as the claimant's litigation friend could not do so.
  • That could create difficulties in exploring quantum before liability was determined and inhibit settlement.

Close attention should be paid to the circumstances. The circumstances of the instant case were such that it would have been wholly wrong to find the claimant's mother blameworthy.

Rhys Alan Williams v McMurrays Haulage Ltd (Pt 20 Claimant), Wm Morrison Supermarkets Ltd (Pt 20 Defendant) [2018] EWHC 2079 (QB)

Background

On 15 August 2014 at about 10.50 am the claimant Mr Williams opened a gate to the yard of the Morrisons supermarket in Pontefract, and a HGV driven by Mr John Blackwell, an employee of the first defendant (McMurrays), drove in. Mr Williams stood at the end of the gate, against a wall. Shortly thereafter the rear of the trailer of the lorry collided with that wall, trapping Mr Williams' right arm and causing a severe crushing injury to his forearm and hand.

A claim brought by Mr Williams against the McMurrays has been settled, and the claimant discontinued his claim against Morrisons. The remaining matter involves the Pt 20 claim by McMurrays for contribution against Morrisons, as Mr Williams' employer, alleging that negligent breaches of duty owed by it to Mr Williams caused or contributed to the accident.

Conclusion

None of the alleged faults or acts of negligence on Morrisons' part held any weight.

If any of the alleged breaches did exist, none of them in any event caused or contributed to the accident that occurred.

The primary and overwhelming cause of the accident was the negligence of Mr Blackwell in so manoeuvring his vehicle that he caused it to intrude into the space in which he knew Mr Williams had been standing, having taken no steps to check, let alone ensure, that he had moved away from that place.

To the extent that Mr Williams contributed to the cause of the accident by standing in an obviously unsafe place, he did so not because of any fault in Morrisons' procedures or training, but because he failed to follow those procedures and that training in circumstances that, it should have been obvious to him, put him at risk.

Morrisons' responsibility could not in any event have exceeded 20% of the total liability.

Wolfgang Wirth and Other v Thomson Airways Ltd ECJ Case C‑532/17

Under a contract for the lease of aircraft, including crew (‘a wet lease’), TUIFly GmbH chartered an aircraft, including crew, from Thomson Airways for a stipulated number of flights. That contract provided that TUIFly was responsible for ‘ground handling including passenger handling, passenger welfare at all times, cargo handling, security in respect of passengers and baggage, arranging on-board services, etc.’. In order to operate those flights, TUIFly applied for the slots, marketed the flights and secured all authorisations. 

The applicants in the main proceedings had a booking confirmation for a flight from Hamburg (Germany) to Cancún (Mexico) bearing a flight number, the code for which refers to TUIFly. The booking confirmation stated that the bookings were issued by TUIFly, but that the flight was ‘operated’ by Thomson Air. The flight was significantly delayed and the claimed compensation from Thomson Airways.

Under Article 2(b) of Regulation No 261/2004, the concept of an ‘operating air carrier’ must be understood as referring to an ‘air carrier that performs or intends to perform a flight under a contract with a passenger or on behalf of another person, legal or natural, having a contract with that passenger’.

That definition sets out two cumulative conditions which must be satisfied if an air carrier is to be regarded as an ‘operating air carrier’ relating, first, to the operation of the flight in question and, second, to there being a contract concluded with a passenger.

An air carrier which, in the course of its air passenger carriage activities, decides to perform a particular flight, including fixing its itinerary, and, by so doing, offers to conclude a contract of air carriage with members of the public must be regarded as the operating air carrier.

An air carrier which leases an aircraft and crew to another air carrier under a wet lease, but does not bear the operational responsibility for the flights, even where the booking confirmation of a seat on a flight issued to passengers states that that flight is operated by the former air carrier is not the ‘operating air carrier’ within the meaning of Regulation No 261/2004.

Costs

The Commissioner of Police of the Metropolis v Andrea Brown, The Chief Constable of Greater Manchester Police, Andrea Brown v The Equality and Human Rights Commission [2018] EWHC 2046 (Admin)

Ms Brown was a serving officer in the Met until November 2013. In December 2011, while employed but on sick leave, she had travelled to Barbados with her daughter without notifying her line manager of her whereabouts. This was a breach of police service procedures as to absence management. As part or preparatory work for possible later disciplinary proceedings against her, the Met submitted a request for information to the National Border Targeting Centre (NBTC) the police arm of which is managed by the GMP. The GMP responded by email giving the Met information about Ms Brown's trip to and from Barbados, attaching a copy of her passport and a print-out containing other information about her recent travel arrangements and passport details.

The Met then approached Virgin Atlantic, the relevant carrier and asked for information using a "Personal Data Request Form". The airline responded by email with details of the flight, passenger names (Ms Brown travelled with her daughter) and other details; a copy of the booking form was attached.

That information was used against Ms Brown in the disciplinary process which culminated in a finding that she had a case to answer but that a sufficient sanction would be "informal management action".

Ms Brown then sued the Police for misusing facilities for the detecting and preventing crime for gathering data and information. Ms Brown pursued four causes of action:

(1)           breaches of the Data Protection Act 1998 (DPA),

(2)           breaches of the Human Rights Act 1998 (HRA),

(3)           misfeasance in public office and

(4)           the tort of misuse of private information.

The Police conceded (1) and (2), Ms Brown lost on (3). Ms Brown won on (4).

As part of her case on (1), (2), (3) and (4), Ms Brown advanced a claim that she had sustained personal injury, in the form of depression. The Judge rejected that claim and held that she had not suffered personal injury in the form of any recognised psychiatric injury, but accepted that she had suffered distress, sufficient to warrant an award of damages under s 13(2) DPA.

The court made a single global award of general (compensatory) damages of £9,000 to reflect the three causes of action on which she had succeeded, which he apportioned at two-thirds / one-third between the Met and GMP respectively.

The award was less than Part 36 Offer made by the Met on 26 February 2016, and equalled the Part 36 offer made by the GMP on 2 May 2016.

The Court held that Ms Brown was entitled to QOCS protection. The claim was that the injury has followed as a consequence of each of the four causes of action which were advanced at trial. On the facts of this case, the exception in CPR 44.16 was not available and Ms Brown had the benefit of QOCS protection.

Subsequently on the assumption that he was wrong about QOCS protection he ordered the Met and the GMP to pay 70% of Ms Brown's costs up to the date of their respective Part 36 offers; thereafter, he ordered Ms Brown to pay the costs of each of the Met and the GMP.

The Met and GMP appealed.

If the appeal fails:

  • The Police will be able to enforce the costs orders in their favour only to the extent of the award;
  • The Police will not be able to set off the costs owed by Ms Brown to them against costs owed by them to Ms Brown;
  • The costs owed by them to Ms Brown will still have to be paid.
  • The Police will not be able to pursue Ms Brown personally for any costs due to them.
  • The Police will be substantially out of pocket.

If this appeal is allowed, subject to the Judge's further decision about whether to exercise his discretion or not:

  • The Police will be able to enforce against the award;
  • The Police will also be able to set off the cross costs orders against each other; and
  • The Police will be able to sue Ms Brown personally for any outstanding balance due to them.

Analysis

CPR 44.16(2) applies in any proceedings where a claim has been made for damages for personal injuries as well as for something else (ie, as well as a claim other than a claim for damages for personal injury). This is a "mixed claim".

Mixed claims are within the scope of QOCS, by virtue of CPR 44.13(1). But CPR 44.16(2)(b) provides a mechanism to deal with mixed claims, namely to leave it to the Court at the end of the case to decide whether, and if so to what extent, it is just to permit enforcement of a defendant's costs order.

The question to be asked in any given case is whether, in the proceedings, the claimant is claiming anything other than damages for personal injuries.

  • If the answer is no, then QOCS protection applies automatically (subject of course to one of the other exceptions applying, where the case is struck out or dishonesty is found).
  • If the answer is yes, then the case is subject to the court's discretion under CPR 44.16(2)(b) .

A standard PI claim for damages for personal injury and damage to property is subject, at least in theory, to the discretion in CPR 44.16(2)(b) because the claimant is claiming for something beyond damages for personal injuries. In an ordinary claim arising out of an RTA, it might be thought unlikely that a Court would consider it just to remove QOCS protection, simply because the injured claimant also sought compensation for damage to their car. But the discretion is there, and in an unusual RTA, for example where the personal injury claim is modest but the main issue in the case relates to damage to the car, the Court might consider it just to remove QOCS protection.

EHRC intervention

The EHRC was given permission to file evidence and make oral submissions.

  • QOCS should be construed to certainty for claimants making personal injury claims that they will not be subject to adverse costs orders, even if ultimately unsuccessful, subject only to narrow exceptions
  • Jeffreys introduced uncertainty and was wrongly decided
  • There are concerns about access to justice if Jeffreys was upheld

Response to EHRC

The purpose of the QOCS regime is to secure access to those who are bringing claims for damages for personal injury, but a claim for personal injury is not any proceedings which include a claim for personal injury.

To construe the QOCS regime in the way to promote access to justice is to go far beyond its intended purpose.

Conclusion - This appeal is allowed.

Because Ms Brown advanced claims within the proceedings other than a claim for damages for personal injury, her case comes within the exception at CPR 44.16(2)(b) and the Judge has a discretion to permit enforcement of the defendant's costs order, to the extent he considers it just.

Practice and Procedure

Kimathi & Ors v The Foreign and Commonwealth Office [2018] EWHC 2066 (QB) – 2 August 2018

In a personal injury group action concerning alleged mistreatment and torture by the British colonial administration of Kenyan nationals in Kenyan detention camps in the 1950s, a test claimant (TC34) asked the court to exercise its discretion under the Limitation Act 1980 s.33 to allow his claim to proceed after a delay of 56 years.

  • The legal burden under section 33 rests throughout upon the Claimant.
  • Section 33 must be approached as guided by the Court of Appeal in B v Nugent Care Society and others [2009] EWCA Civ 827 and subsequent authority.
  • The issue is whether "It would be equitable to allow the action to proceed." That is the language of section 33(1)
  • The central question is therefore whether it would be "equitable to allow an action to proceed", having regard to prejudice to the Claimant and prejudice to the Defendant. Whether a fair trial can still take place is a very important question.

If a fair trial cannot take place it is very unlikely to be "equitable" for the Defendant to meet the claim. But if a fair trial can take place that is not the end of the matter. The possibility of a fair trial is a necessary but not sufficient condition for the disapplication of the limitation period.

  • The basic question is whether it is fair and just in all circumstances to expect the Defendant to meet the claim on the merits notwithstanding the delay in commencement.
  • Prejudice to the Defendant involves asking whether the Defendant has been disadvantaged in the investigation of the claim and/or the assembly of the evidence in respect of issues of both liability and quantum.
  • The length of the delay is delay since the expiry of the limitation period.
  • In considering the reasons for the delay, the cases have determined that the Court has to undertake a subjective enquiry for the delay on the part of the Claimants.
  • The next stage is for the Court to decide whether the reason(s) for the delay are good or bad.

The court declined to exercise its discretion under the Limitation Act 1980 s.33 as it was not fair and just in all the circumstances to expect the Foreign Office to meet the claims on the merits.

The claimant had not given evidence of the reasons for his delay; it was not enough that the reasons were clear from the pleadings, as statements of case were not evidence, even where verified by a statement of truth.

The Court’s decision would have been the same even if it had been able to consider all the reasons for delay which had been pleaded and were the subject of the Claimants' submissions. The unfairness to the Defendant in defending TC34's core allegations would have still outweighed the prejudice to TC34. Even with those reasons to qualify or temper the prejudice to the Defendant, it would not have been fair and just in all the circumstances to expect the Defendant to meet the claims on the merits.

Viner v Volkswagen Group United Kingdom Ltd Also known as:  VW NOx Emissions Group Litigation [2018] EWHC 2006 (QB) – 30/07/2018

In group litigation against the Volkswagen Group (VW), the claimants applied under CPR r.7.6(2) for an extension of time for service of the claim form against the first defendant (VWUK), the importer and distributer of VW vehicles to UK dealerships. They are not a supplier to consumers.

The claimants had made a deliberate decision not to serve their claim form on VWUK by the expiry date.

Chronology

The key dates in relation to this application which appear from the evidence are as follows:

  • 25 January 2016: claim form issued against VWUK only, claiming damages for "fraudulent misrepresentation, breach of contract and claims under the Consumer Protection Regulation" arising from purchase of "motor vehicles supplied by the Defendants".
  • 30 September 2016 and 10 October 2016: extensions of time for service agreed by VWUK.
  • 2 November 2016: claim form amended to include five additional Defendants.
  • 10 November 2016 and 10 January 2017: extensions of time for service agreed by VWUK.
  • 30 January 2017: Adjourned GLO application hearing; this claim managed within the group litigation from this date.
  • 10 April 2017: extension of time for service agreed by VWUK.
  • 1 December 2017: order in group litigation application, the effect of which was to grant a further extension to 26 April 2018.

Because the application is made under CPR 7.6(2) the court has a broader discretion than is the case for applications made after the expiry of the claim form under CPR 7.6(3).

Applications under CPR 7.6(2) are determined by the application of the overriding objective and "good reason" is no longer a jurisdictional prerequisite for an extension of time.

If there is no good reason for the extension, an extension may be unlikely, but it will be granted if that is appropriate on the particular facts.

The claimants acknowledged that service had been possible by the expiry date, but asserted that there had been a good reason not to effect service: they wanted to wait until outstanding group litigation issues had been resolved and to give themselves time to facilitate a dialogue between the parties. The claimants conceded that their decision might have been a misjudgement, but maintained that it was within the overriding objective for the court to grant an extension, given that there were no limitation issues, that VWUK had been in receipt of the claim form for over two years, and that the cut-off for bringing a claim against VWUK in the group litigation was not until December 2018.

It was held the claimants did not have a good reason for not serving the claim form and the court should not exercise its discretion to grant the extension.

It was a serious misjudgement to have taken the course adopted, and no proper explanation had been given. It was clear that the claim form could have been served within the period of validity. The claimants' reasons for not doing so were not credible.

A competent litigation practitioner would have served the claim form before the expiry date and, if appropriate, applied for a stay of proceedings. The court could then have considered the claim in the context of the group litigation order. Alternatively, the litigator could have applied under CPR r.38.6(1) for a different order than the default position upon service of a notice of discontinuance.

The legal representative had been inconsistent, non-engaging and generally unhelpful, but those were not factors to be weighed into the exercise of the court's discretion. Rather, they were relevant to a determination of costs.

Hertel v Saunders [2018] EWCA Civ 1831

The claimants had brought a claim seeking a declaration that there was a partnership or joint venture between the first claimant and first defendant. That was denied by the defendants. The claimants served a draft amended claim form, proposing a new claim for a declaration that there had been an agreement between the parties under which the defendants would account to the claimants on certain matters. The defendants replied that they would not oppose that amendment when it was applied for. The defendants subsequently sent an offer of settlement entitled "Part 36 offer", denying the originally pleaded claim but consenting to the declaration sought in the proposed amendment. The claimants accepted the offer and abandoned the pleaded claim.

A master concluded that the costs outcome was governed by CPR r.36.10(2), because the defendants' offer related to part of the claim and the claimants had abandoned the balance of the claim, and as the claimants had accepted that offer, they were entitled to their costs of the abandoned claim down to the date of acceptance.

On appeal, the judge found that the defendants' offer had not been a Part 36 offer because the claim in the proposed amendment, to which the settlement related, was not "a claim or part of the claim or an issue which arose in the claim" under r.36.5(1)(d), so r.36.10(2) did not apply, and the defendants were the successful party as they had not been held liable to the claimants, and were entitled to their costs.

Court of Appeal

The position before proceedings commenced was different to that after commencement. Once proceedings started, there were pleadings and procedural rules regulating them.

The fact that r.36.5(1)(d) could also apply pre-commencement did not affect the proper interpretation of the word "claim" where the offer was made post-commencement. In civil proceedings, claims/parts/issues could only properly be defined by reference to the pleadings; that was the principal purpose of pleadings. It would introduce unnecessary uncertainty if claims/parts/issues were given a wide definition not anchored in pleadings.

The judge had been correct to construe the words "claim", "part of a claim" and "issue" as referring to those which had been pleaded, not those which had been intimated but never pleaded. The certainty required for Part 36 to operate could only be achieved by that interpretation.

A new claim which had been intimated but which was not part of the pleadings was not caught by r.36.5(1)(d). It made no difference that the new claim had been the subject of a proposed amendment: it was not a "claim" within the rule until the amendment was allowed.

The defendants had had the opportunity to consent to the amendment but had declined to do so. There was a difference between consenting to an amendment and indicating a future intention not to oppose an amendment application. The judge's interpretation was consistent with the particular status of Part 36 as a prescriptive regime with draconian consequences for non-compliance: the court should be wary of liberally construing its rules simply to achieve a pragmatic answer.

Finally, it was irrelevant that both parties had originally considered the offer to be a Part 36 offer: on analysis, it was not a Part 36 offer, and could not become one due to their labelling of it as such.

Rule 36.10(2) did not apply and the appeal was dismissed (paras 25-41).

Even if the offer had been a Part 36 offer it would have made no difference to the outcome of the costs order. Under r.36.10(2) there had been a steer towards giving the claimants their costs of the proceedings even if the offer related only to part of the claim, but the court had had a wide discretion to order otherwise. The judge had concluded that the defendants were the successful party and his reasoning was unassailable, whether or not the Part 36 offer was legitimate (paras 42-43).

Docherty’s Executors v Secretary of State for Business, Innovation and Skills [2018] CSIH 57

In establishing the lex loci delicti, the emphasis was on the place of the defender's actions and not the place where an injury emerged.

The deceased had been exposed to asbestos during his employment in Scotland between 1941 and 1947; he was resident in England when he began to experience respiratory symptoms in 2003, and at the time of his subsequent diagnosis and death.

The Claim could be brought in Scotland under Scottish law

Committeri v Club Mediterranee SA (t/a Club Med Business) [2018] EWCA Civ 1889

The appellant, who lived in England, was injured in a climbing accident in France while on a team-building exercise organised by his employer. He brought a claim against the respondent, which had provided his travel and accommodation pursuant to a contract with his employer. That contract was expressly governed by English law.

The basis of claim was pleaded by reference to the contract and to the Code of Tourism (France) art.L-211-16, which imposed strict liability for the proper performance of contractual obligations. Those obligations included an duty to ensure that the appellant was safe at all times.

The issue at trial was whether the claim was to be characterised as contractual or non-contractual in nature. If it was contractual, it was common ground that English law would apply and the claim would fail because it did not allege breach of a contractual obligation to take reasonable care. If it was non-contractual, Regulation 864/2007 (Rome II) would apply. In that event, there would be no choice of law clause, French law would operate and the claim would succeed. The judge concluded that the claim was contractual for the purposes of Regulation 593/2008 (Rome I) and Rome II.

The fact that the claim naturally sought to take advantage of the strict liability imposed upon the contractual obligations by the French Code did not detract from the conclusion that it was based on the underlying contract, which was the source of the rights and obligations in dispute.

Quantum

Irani v O’Duchon – QBD 18.07.18 – ex tempore judgment of David Pittaway QC

A claimant in an RTA was awarded damages including sums to reflect redundancy and loss of immigration status in the UK.

The Claimant was hospitalised for a significant period with injuries to his leg and elbow arising from a motorbike accident in 2013. During a phased return to work, his employer shut down and he was made redundant, albeit the Company re-started some three months later. It took 6 months for the Claimant to find new employment.

The Claimant had stayed in the UK since 2010 on an employer sponsored visa, with leave to remain until 2020. Due to the loss of continuity of employment, the Claimant would be unable to renew his visa or apply for leave to remain. Returning to his home country of India would result in a reduction of income.

Held

A total damages award of £404,000 included PSLA, loss of earnings to date, relocation costs, and, by a broad brush approach, a Smith v Manchester award of £30,000 reflecting the issues finding new employment, and an award of £150,000 reflecting probable loss of future earnings in a different country.

LXA v Willcox [2018] EWHC 2256 (QB) – 23 August 2018

The claimants (C1 and C2) brought a claim for damages for personal injury and other losses against the defendants (D1 and D2), their adoptive parents.

The claimants had been adopted by the defendants in the early 1970s when aged around five or six years old. They left home in 1978 and 1981 respectively. In 2015, D1 was found guilty of indecent assault, indecency with a male child, and child cruelty, all relating to abuse of the claimants while they were at home. D2 was found guilty of child cruelty against the claimants. D1 died in 2017 and the claim continued against his estate, represented by D2. She was a litigant in person and did not attend the hearing, indicating that her witness statement and defence should be taken into account in her absence.

D2's absence from trial

While the claimants' cases on liability were overwhelming in light of the convictions, the damages claims still had to be proved, so a hearing was required. As D2 was not represented, CPR r.3.1(5) applied, allowing the court to put questions to witnesses.

Disapplication of limitation period

The court could disapply the limitation period at its discretion, in light of the circumstances and in particular the factors listed in the Limitation Act 1980 s.33(3).

One factor was whether the claimants had acted reasonably and promptly once they knew of the injury. A psychiatrist's evidence was that very few sexual abuse victims had the confidence to complain about abuse from parents, and that both claimants had been worried that the defendants would kill them. Those were good reasons for delaying.

The main factor for consideration was the extent to which evidence was likely to be less sound due to the delay. The evidence on liability was perfectly sound, given that the jury had convicted the defendants at trial. Assessing loss was more difficult, given that the injuries dated back to the 1970s, but assessing psychiatric injuries often involved considering long histories, and the medical records were available. A fair trial was possible, and s.11 of the Act was disapplied (paras 32, 40-52).

Damages for C1

C1 had an adjustment disorder and dysthemia due to the abuse, and needed cognitive behaviour therapy at a cost of £4,800. For psychiatric injury, he was at the lower end of the moderately severe bracket in the Judicial College guidelines, and an award of £35,000 was appropriate. His calculated claim for loss of earnings could not be relied on: his use of average earning figures over his whole working life did not take into account that young persons were likely to earn less. Adopting the approach in Blamire v South Cumbria HA [1993] P.I.Q.R. Q1, £40,000 was appropriate for loss of earnings. With therapy costs and travel, his total damages award was £115,040

Damages for C2

C2 had an adjustment disorder and recurrent depressive disorder due to the abuse, and needed cognitive behaviour therapy at a cost of £4,800. Her psychiatric injury was moderately severe, and additionally the sexual abuse was particularly serious, resulting in a higher award of £80,000. Her evidence on loss of earnings was not reliable: the dates did not add up and it included periods where she took time off for children. Deducting those periods from her claimed loss resulted in a calculation of £76,000, which was appropriate. Future loss, given that she was working at 80% of capacity, was £17,564.27. She was entitled to past and future prescription costs. Her total award was £186,011.08.

Other news

Landmark £1m lawsuit against top Glasgow salon after ‘hair wash caused mother to have stroke’

Adele Burns has started a £1 million landmark legal action against a top Glasgow beauty salon over claims a botched hair treatment caused a stroke.

A stylists at Rainbow Rooms in Glasgow washed the claimant’s hair six times after failing to get the colour right. Her head being repeatedly pulled backwards into the salon basin led to a dissection of the vertebral artery, a clot was formed which stopped blood getting to the brain and she suffered a stroke.

After the five-hour appointment, the claimant left with a headache but put it down to not getting a chance to eat while at the salon. The following day her condition drastically deteriorated when she lost her sight and felt dizzy, eventually passing out.

The incident left the claimant unable to drive which meant she couldn’t work and had to sell her home. She also now struggles to speak, read, write and move.

It is pleaded that salon staff didn’t ask the claimant to attend for a “strand test” before her appointment which would have prevented the need for her hair to be re-washed and re-coloured six times, and that the salon was negligent by failing to offer her a front-facing sink or provide neck protection during the treatment she received.

2-year disclosure pilot to start in the Business and Property Court on 1 January 2019

The aim of the pilot is to reduce the costs, scale and complexity of disclosure.

This includes inter alia a new duty to refrain from producing irrelevant documents and a new step of “Initial Disclosure” in which parties must disclose the documents on which they rely and which are necessary for the other party to understand the case against it at the same time as serving their statement of case, unless the case falls within one of the exceptions.

Pavement trips and slips cost £2.1m in the year until the end of May 2018

According to information released to the AA following a Freedom of Information request, pedestrians made 10,572 compensation claims for trips and slips on pavements and local authorities paid out a total of £2.1 million in the year till the end of May 2018. Hillingdon Council in West London had the greatest number of successful claims paying out 115 of 148 claims.

Updated Glasgow Coma Scale system published – GCS-Pupils

One of the original creators of the GCS has been working with others to produce the GCS-Pupils system, which enhances the ability to assess the severity of and prognosis for brain injury in the initial stages.

The GCS-P system measures the reactivity of a patient’s pupils, which is a key prognostic indicator. A combination of the original GCS and the GCS-P gives the most accurate assessment possible of level of injury and prognosis.

For more information contact

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