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Corporate Claims Bulletin

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

17-08-2015

Liability

Donald Macleod (a Protected Party by his Litigation Friend Barbara Macleod) v Commissioner of Police of the Metropolis (2015)

The commissioner appealed against the decision that personal injuries suffered by the respondent in a road traffic accident were caused by the negligence of a police driver.

The respondent had been cycling home when he was hit by a police car responding to an emergency call. The dispute centred on the direction from which the respondent had approached the junction. The judge found the evidence of two of the independent witnesses to be reliable and compelling. The judge concluded that the respondent was cycling from the south when he was hit from behind by the police car. The police car had been driving too fast, without the degree of care and skill which would have been reasonable in the circumstances.

The commissioner submitted that the judge had erred in making findings of fact against the weight of the evidence and rejecting the possibility of an alternative scenario, based on the expert evidence.

HELD:

The judge had been entitled to rely on the evidence of the two independent witnesses. The inference he drew that the respondent had approached the junction from the south was a very powerful one. The judge was not obliged to accept the expert evidence; he was entitled to apply his common sense and experience when evaluating the totality of the evidence. The commissioner's appeal was on the facts. Where a trial judge had reached a conclusion on the primary facts, it would be only in a rare case, such as where that conclusion was one which (a) was based on a misunderstanding of the evidence; or (b) no reasonable judge could have reached.

The commissioner had failed to make out any such objection to the judge's findings of fact. There was ample evidence which the judge had fully understood and on which he could properly rely to make his findings.

Appeal dismissed.

Albert Carder v (1) Secretary Of State For Health (2) University Of Exeter (2015)

The claimant sought damages from the second defendant on the basis that his asbestosis was attributable in part to negligent exposure to asbestos while in the second defendant's employment.

The claimant was 85 years old and had worked as an electrician and had been negligently exposed to asbestos by a number of employers, including the second defendant. He had developed asbestosis and also suffered from unrelated conditions which affected his lung function.

The evidence was that his asbestosis was gradually increasing and contributing to his disability and that it increased his risk of lung cancer. He sought provisional damages under the Senior Courts Act 1981 s.32A.

The claim proceeded solely against the second defendant. It was accepted that asbestosis was a "divisible" disease and that each source of exposure would have contributed to the development of the claimant's asbestosis in approximate proportion to the dose received. The contribution attributable to the second defendant was 2.3 per cent of the claimant's total exposure. The medical evidence indicated that this proportion had made no discernible difference to the Claimant’s condition. In reliance on this evidence, the Second Defendant argued that its negligence had not resulted in an actionable injury.

HELD:

The question was whether the Claimant had suffered real damage and was worse off to a degree that was not so trivial that a claim in damages was not justified. Although a 2.3% contribution was small, it was not de minimis. Asbestosis is a divisible disease and each source of asbestos exposure contributes in proportion to the overall condition. The Second Defendant’s contribution to that exposure caused the Claimant to be worse off physically, even if not in a way that was noticeable or measurable. Accordingly, the Claimant had suffered actionable damage. The Second Defendant was therefore liable for 2.3% of the Claimant's damages, which were assessed at £67,500 on a provisional basis.

Quantum

Billett –v– Ministry of Defence (2015)

The Court of Appeal considered the correct approach to determining damages for future loss of earning capacity in circumstances where a Claimant had suffered an injury resulting in only a minor disability and was in steady employment earning at his pre-accident rate.

The Claimant had been employed by the Ministry of Defence as a Lance Corporal and suffered the injury in February 2009. Following treatment he was assessed as medically fit for deployment but he left the army in October 2011. He immediately found new employment as a lorry driver but maintained that he continued to suffer various symptoms in cold weather. The trial judge accepted his evidence that he had suffered difficulty in doing various household tasks and stayed inside in cold weather which limited his ability to do various things.

His earnings as a lorry driver were the same as his earnings before the injury but the experts agreed that if he lost his job he would be at a disadvantage in finding new employment. The trial judge assessed the Claimant as “disabled” and by reference to the Ogden Tables assessed his future loss of earning capacity at over £99,000. In addition the Claimant was awarded general damages for pain and suffering of £12,500.

The Ministry of Defence submitted on appeal that the award of £12,500 for general damages was outside the range for the nature of the injury and that the Claimant was not “disabled” within the definition of the Ogden Tables but that, if he was, damages would be more appropriately assessed using the Smith –v– Manchester method.

Held:

1. The award of general damages was appropriate.

2. The explanatory notes to the Ogden Tables stated that a person was disabled if his condition substantially limited his ability to carry out normal day to day activities within the meaning of the Equality Act 2010. While the Ogden Tables provided an extremely wide and broad spectrum for assessing a “disability” the Claimant was at the outer fringe of that spectrum and his disability affected his ability to pursue his chosen career much less than it affected his activities outside work. There was no rational basis for determining how the reduction factor should be adjusted, rendering the application of the Ogden Tables unrealistic. This was a classic example of where a conventional Smith –v– Manchester award was appropriate and the appropriate award based on two years loss of earnings was assessed at £45,000.

Wilson v Al-Khader (2015)

The defendant appealed against a master's order that it was inappropriate at that time to require the claimant's expert to expand on medical evidence in an expert report.

The claimant had suffered catastrophic brain damage due to a medical accident, as a consequence of which she remained in a persistent vegetative state. The claimant served a medical report which, on the issue of her life expectancy, simply said that she could survive for many years and that it was premature to conclude anything else at that stage. The claimant's provisional schedule of loss did not contain a single figure with regard to the size of the claim. The defendant admitted liability and causation and so the case proceeded on quantum only. When the matter came before the master for case management the defendant applied, under CPR Part 35, for clarification as to the claimant's life expectancy. The expert informed the judge as to the difficulties in assessing life expectancy in the absence of old medical records, and said that determining the matter at that time might not be accurate and would not be in the claimant's best interests. The master found that, in the absence of any evidence from the defendant contradicting that evidence, he would not make the order.

The defendant submitted that it was impossible to value the case without the information sought. He further submitted that the master had failed to take into account the overriding objective and the need to promote expedition and proportionality.

HELD:

Under CPR Part 35 questions to an expert had to be for the purpose of "clarification" only. The questions asked had been, however, not clarifications but invitations to express an opinion that the expert had conspicuously not previously expressed.

The master had been entitled to take the view that absent any evidence to the contrary, it was not appropriate to go behind a professional expert's unwillingness to answer a question. The defendant had sought to force a professional to express an opinion that he had declared himself uncomfortable in giving.

In any event, any opinion given by the expert would have been valueless because the annual costs of the claim had not yet been evidenced, and so the life expectancy figure did not yet have core significance.

Some masters might have met that by directing that the claimant should provide the outstanding evidence in accordance with a timetable, and to provide a better particularised schedule of loss, thus allowing the defendant to know the case they had to meet. However, simply because there were other ways that the matter could have been addressed did not make the decision wrong.

It was legitimate to seek the information, but the preferable way was through case management directions and the claimant properly particularising the claim.

Cost and Procedures

RXDX v Northampton Borough Council (2015)

Although this decision was considered under the Part 36 in force prior to 6 April 2015, the provisions under consideration (old Rule 36.14(3) which are the current CPR 36.17(4)) have not changed. The authority in this judgment should apply in considering CPR 36.17(4) in similar situations in future.

The Claimant had made a Part 36 offer to settle which was not accepted and the Claimant went on beat the Part 36 offer at trial. The judge ordered indemnity costs to run throughout plus interest from the date that the offer expired. He made no order in relation to additional costs as to the then CPR Part 36.14 (3( (a) – (d) on the basis that in the circumstances, where nothing had been known to either side as to the value of the claim, it would be unjust to apply those provisions.

The Claimant submitted that the judge did not have the power to make no order as to r.36.14(3)(a) and (d) because the rule was a complete code. The defendant argued that it was open to the judge to consider each sub-paragraph separately and assess if its application would be unjust in the circumstances.

HELD:

Part 36 was a self-contained code which was to be read and understood according to its terms without importing rules derived from the general law, save where that was clearly intended.

The then Rule 36.14 was triggered in situations where the Claimant had achieved a more advantageous result than would have been the case had the Part 36 offer been accepted.

Reading the plain language of the rule the court preferred the defendant's construction. It was open to the court to consider each sub-paragraph of r.36.14(3) separately so as to assess if its application would be unjust in the circumstances of each particular case.

Other news

The New Uninsured Drivers’ MIB Agreement: Coming into force on 1 August 2015

The Old Agreement

The previous agreement was always controversial. It introduced a large number of procedural steps, default in any one of which could lead to the MIB escaping liability. The harshness of these rules was later mitigated by the introduction of a voluntary Code of Practice. Most, but not all, of the difficulties could be overcome by ensuring the MIB were a party to the action at the outset.

The Key Points

The rules are now much simpler. The key points are:

• To submit an application to the MIB in the proper form.

• To join the MIB into the action at the outset.

MOJ calls for investigation into NIHL claims

The Ministry of Justice has urged the Civil Justice Council to investigate the number and cost of claims for noise-induced hearing loss (NIHL), following lobbying from the insurance sector, which has come to regard NIHL as "the new whiplash" and as a "cash cow".

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