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Corporate Claims Bulletin December 2017

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

19-12-2017

Liability

Casson v Spotmix Limited & Others  [2017] EWCA Civ 1994

The claimant suffered an injury when he attempted to clean in the vicinity of the moving part of a conveyor belt.  The claimant, who was an inexperienced cleaner, was not given any training or instruction as to how to clean the conveyor belt. The conveyor belt was in continuous operation 24/7. In attempting this task, the claimant copied the method of cleaning that had been adopted by his colleagues.

At trial, there was very little evidence in support of the allegations of contributory negligence which were made against the claimant.  The only evidence came from the concession made by the claimant in cross examination, when he acknowledged with the benefit of hindsight and common sense the risk of moving his hand close to the machinery.  At first instance the court found the claimant 10 percent contributory negligent.

The Court of Appeal however found that as every other employee charged with the task of cleaning the machine did exactly what the claimant did, the claimant’s conduct fell considerably short of that which could be popularly categorised as amounting to contributory negligent.  The contributory negligence finding was therefore over turned.

Spearman v The Royal Unit Bath Hospitals NHS Foundation Trust [2017] EWHC 3027 (QB)

Is a hospital in breach of its duties under the Occupiers Liability Act if a patient within 15 minutes of arriving at the hospital jumps off the roof sustaining serious injury?

The claimant suffered from type one diabetes which he controlled by injecting himself with insulin.  When he was 23 years old he was involved in a road traffic collision which resulted in him sustaining a brain injury and necessitating a hospital stay for many months.  The claimant developed a phobia for hospitals as a result and suffered a significant change to his personality.  The claimant had good and bad days but on some occasions despite medication he would suffer from hypoglycaemic attacks which would make him confused, single minded and stubborn.  This combined with his brain injury made him vulnerable.

On one evening the claimant suffered a particularly bad hypoglycaemic attack and his brother called an ambulance.  When the ambulance arrived the claimant was virtually comatose with a Glasgow Coma score of 4.  He was treated with glucose and taken to hospital.  By the time he arrived at hospital the claimant was saying something about going upstairs which did not make sense but was able to transfer himself onto a trolley.
The claimant was transferred into a cubicle and left for one minute before an initial assessment could be carried out.  During this time the claimant removed the drip bag from the drip stand attached to the trolley, got off the trolley, walked away, made his way through several sets of doors, down a corridor, up the stairs and onto the hospital’s flat roof.  The claimant was found in the courtyard area below, having fallen from the roof.

The court was asked to consider what happened to the claimant and whether the hospital was in any way to blame. There were arguments at trial over whether this was a deliberate act of self-harm or an accident in circumstances where the claimant was confused and unaware of the risks associated with his actions. 

The court found that the brain injury the claimant sustained in his early twenties had caused him to act in an unpredictable way and that it was a well-known effect of a hypoglycaemic attack that a patient can behave unpredictably, irrationally and out of character.  The court was satisfied this was not a suicide attempt. The court was asked to consider whether the claimant was a visitor or a trespasser, ie which of the Occupiers Liability Acts should apply?  The hospital argued that when the claimant went up onto the roof of the hospital he became a trespasser.  The court dismissed this argument and held he was a visitor and that the Occupiers Liability Act 1957 applied. 

When looking at the duties the hospital owed their patients, the court said they needed to consider vulnerable patients who would be confused and mentally unstable and likely to act in unpredictable ways.  The hospital owed the claimant a duty to keep him reasonably safe and this extended to supervision and restriction of his activities and movements in hospital either by direct nursing or by locking doors.

The court found there had been a breach of the hospital’s duties and that the accident was reasonably foreseeable.  The court was not satisfied that the claimant contributed to the accident himself and the hospital was held 100% liable.

Williams v Hawkes [2017] EWCA Civ 1846

If a farmer’s cow is startled and runs into the road causing a collision is the farmer liable under the Animals Act even if he wasn’t negligent?

The claimant who was driving a car at the time, collided with a cow on a dual carriageway. The cow was killed in the accident and the claimant sustained significant injury. The claimant sought damages from the cow’s owner and brought a claim in negligence and under the Animals Act 1971.  The cow, which had been purchased the day before the accident for H’s farm, had escaped by jumping a 6 foot fence.  At first instance the court found the fencing arrangements to have been appropriate, the conduct of H to be impeccable and rejected the claim in negligence.  The court accepted however that the behaviour of the cow was a particular characteristic of its breed and that this was causative of the accident, thereby a breach of S2 of the Animals Act. Judgement was given for C.

H appealed on the applicability of S2 of the Animals Act. The Court of Appeal was asked to consider whether a keeper of an animal, not in itself being an inherently dangerous animal, was strictly liable for damage caused by the animal, where the animal’s behaviour in the circumstances was in no way out abnormal for an animal of that species in those circumstances?

S2 of the Animals Act states:

Liability for damage done by dangerous animals:

(1) Where any damage is caused by an animal which belongs to a dangerous species, any person who is a keeper of the animal is liable for the damage, except as otherwise provided by this Act.

(2) Where damage is caused by an animal which does not belong to a dangerous species, a keeper of the animal is liable for the damage, except as otherwise provided by this Act, if—

(a) The damage is of a kind which the animal, unless restrained, was likely to cause or which, if caused by the animal, was likely to be severe; and

(b) The likelihood of the damage or of its being severe was due to characteristics of the animal which are not normally found in animals of the same species or are not normally so found except at particular times or in particular circumstances; and

(c) Those characteristics were known to that keeper or were at any time known to a person who at that time had charge of the animal as that keeper’s servant or, where that keeper is the head of a household, were known to another keeper of the animal who is a member of that household and under the age of sixteen.

The Court of Appeal accepted that the damage was not caused by animal belonging to a dangerous species, that any damage caused by this animal would be severe due to its size and weight and that H was aware of the characteristics of this breed of cow.  The main issue before the court of appeal related to S2(2)(b).

The court assisted by expert evidence, accepted that cows when startled will react in an unpredictable way and panic and that such panic would be exacerbated by the lights and sounds of a dual carriageway.  S2 (s) (b) was therefore satisfied and the judgement was upheld.

Lewington v Motor Insurer’s Bureau [2017] EWHC 2848

In this case, the High Court of Justice was asked to consider an appeal in an arbitration claim. The claimant was seriously injured in a car crash caused by criminals who had stolen dumper truck on a public highway.  Following the collision, the criminals made off and were never traced. 

The claimant applied to the MIB for compensation under the Untraced Drivers Agreement 2003.  The MIB refused the claimant’s application on the ground that the identified driver was not required by law to insure the dumper truck to drive on a public road.  It was the MIB’s case that the dumper truck was excluded from the requirement to obtain insurance under 195 of the RTA because its main use was for transporting heavy loads off road (gravel quarries) and not for driving on public roads and it was therefore not a “motor vehicle”. 

In the appeal the court looked at the European Directive which led to the enactment of RTA The Directive was clear in its intention that motor vehicle accident victims should be guaranteed comparable treatment irrespective of where in the community their accidents occur.  Each Member State was required under the Directive to take measures to ensure that vehicles were insured.  Under the Directive a vehicle was described as “any motor vehicle intended for travel on land and propelled by mechanical power but not running on rails and any trailer whether or not coupled”.

The court confirmed that the relevant test is whether a reasonable person looking at the vehicle would say that one of its users would be a road user, they held that the purpose of section 185 of the RTA was to provide protection against uninsured drivers in circumstances where one of the users for the item of equipment concerned is used on a road. 

The court found that the arbitrator had erred in law and that the dumper truck was indeed a motor vehicle falling within section 185 of the RTA as the dumper truck was a motor vehicle within section 185 it being used on the road at the time of the collision requires it to be insured and as a consequent the MIB was liable to the claimant. 

Quantum

Smith (as the surviving partner of John Bulloch)  v Lancashire Teaching Hospitals NHS Foundation Trust & ORS [2017] ECWA Civ 1916

Ms Smith and Mr Bulloch lived as man and wife in the same household for 11 years prior to Mr Bulloch’s death.  They never married but their relationship was equal in every respect of a marriage in terms of love, loyalty and commitment.  Mr Bulloch died as a result of negligence of the defendants and Ms Smith brought a claim against them for dependency damages under the Fatal Accidents Act.

Whilst  cohabitees can be a dependent under the Fatal Accidents Act, if they have been living with the deceased for two years or more prior to death they are not entitled to a bereavement payment under section 1a.  The category of those entitled to such payments are limited to husband, wife or civil partner and minors.  The award is currently set at £12,980. 

The Court of Appeal declared that the exclusion of cohabitees was incompatible with Article 8, the right to respect for private and family life and Article 14, Prohibition of Discrimination, of the Human Rights Act 1998.  

In reaching their decision the Court of Appeal referred to the declining popularity in the institution of marriage and the increase in the sum of co-habiting couples.  The report “Families and households” published in 2015 by the Office of National Statistics found that co-habiting couples continued to be the fastest growing family type in the UK, reaching 3.2m co-habiting couple families.  The number of co-habiting couple families grew by 29.7% between 2005 and 2015.  The figures indicate for a significant and increasing proportion of the population of the United Kingdom there is in terms of social acceptance no material difference between marriage and civil partnership on the one hand and living together as a married and non-civil partner couple on the other. 

The practical consequences of this decision is that the government will have to look at this section of the Fatal Accidents Act and take steps to ensure that it is compatible.  It is anticipated that section 1a of the Fatal Accidents Act will be extended to include cohabitees who have been living together for two years in the list of those entitled to receive the bereavement payment.  

Costs

Peterborough & Stamford Hospitals NHS Trusts v McMenemy & Others 2017 EWCA Civ 1941

ATE insurance premiums remain recoverable in clinical negligence claims was the decision of the court of appeal. 

This principle was under challenge in 2 claims considered here both of which involved claimants settling their claims pre issue for relatively modest amount £2500 and £12500 and seeking to recover the cost of ATE premiums (purchased after the LASPO changes in April 2013) of circa £5700 from the NHS as part of their claims for costs.

The Court of Appeal held that it was appropriate for a claimant to take out and After the Event Insurance policy when entering into a CFA.  For reasons of public policy it was decided to exclude clinical negligence claims when the abolition of the recovery of ATE premiums was introduced in April 2013.  It also held that there is no reason why the court should depart from the policy decision in Callery v Gray and consider the reasonableness of the decision in each case.  

BNM v MGN

In this claim the Court of Appeal were asked to consider whether the success fee payable under a CFA between C and her legal team and the premiums payable under an ATE premium taken out by C should be subject to the old or new proportionality rules under the CPR on an assessment of her costs on the standard basis.

This was an appeal by C against the decision of the senior costs judge that the new proportionality test set out in CPR 44.3(2) and (5) applies to both the success fee and the  ATE insurance premium. 

C is a primary school teacher who had a relationship with a successful premiership footballer, their relationship was only known to a small circle of family and friends.  C lost her mobile phone which contained private and personal information linking her with the footballer which ended up in the hands of the defendant who publishes a number of newspapers including the Sunday People.  What followed was a privacy claim brought by C against MGN seeking an injunction to prevent MGN from using or publishing any of the information that they now held.  Following proceedings, the claim was settled and MGN agreed to pay damages and cost to C.

The costs were claimed in the sum of £241,817 including a success fee of 60% on solicitor’s costs, 75% on counsel’s costs and an ATE insurance premium of £58,000.  At detailed assessment the senior costs judge ruled that applying the new proportionality rules the success fees would be reduced to 33%, the ATE premium will be allowed in full but overall the costs were reduced to £167,389.  The costs judge ruled that the cost claims were not proportionate applying the new test and needed to be significantly reduced. 

On appeal the court held that the new proportionality rules contained in CPR 44.3(2) and 44.3(5) did not apply on a standard basis of assessment to a pre-commencement funding arrangement as defined by CPR 48.1.  Instead the form of proportionality test contained in the old CPR Rule 44.4(2) applied.  Cost orders could therefore include provision for payment of success fees payable under conditional fee agreements and premiums payable under ATE policies.  No guidance was given on the application of the new proportionality test however but it is anticipated that this will be addressed in future cases which are set to come before the court of appeal on this issue.  

Practice and Procedure

LV Insurance Co v Mehmet Yavuz (1) Eylem Yavuz (2) Hasan Sel (5) Ayse Sel (4) Salman Gulbudak (6) Mato Hyseyin Gulbadak (7) Ercan Kaya (8) Gunes Kaya [2017] EWHC 3088 (QB)

Following  ‘crash for cash’ road traffic accidents,  Liverpool Victoria apply for contempt of court proceedings against 9 fraudsters. The issue for the court was whether it had been proved to the criminal standard that each of the defendants “dishonestly made, or caused one or more false statements to be made, in one or more of the documents relied upon by LVI”. If the answer is yes, then the court will need to consider if the false statements amount to contempt of court and if they do, what the sentence should then be.

LVI relied upon three other claims made against it in respect of three further crashes alleged to have happened in the same area of London. Two of the three involved proceedings. In LVI’s arguments they set out what they considered to be links between the insured and to other features which they alleged incriminated the defendants. LVI’s case was entirely circumstantial, which invited inferences from the circumstances as a whole.

At the trial three defendants who were allegedly fault-free drivers and their six alleged passengers, plus three other witnesses gave evidence. The application is brought under CPR 81. It relies on CPR 32.14, which provides as follows:

False statements

32.14

(1) Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

LVI argued that false and dishonest statements were made by the defendants in witness statements, schedules of loss, updated schedules etc, all of which had been verified by a statement of truth. The witness statements were all verified by the defendants personally, as per CPR 22.1(6)(b). Some schedules were verified by the litigants personally, others were verified by a solicitor.

The court considered CPR 22.1(6)(a) which both requires and allows a statement of truth which verifies a statement of case to be signed by the party or the legal representative on behalf of the party. The Part 22 Practice Direction provides:

3.7  Where a party is legally represented, the legal representative may sign the statement of truth on his behalf. The statement signed by the legal representative will refer to the client’s belief, not his own. In signing he must state the capacity in which he signs and the name of his firm where appropriate.

3.8  Where a legal representative has signed a statement of truth, his signature will be taken by the court as his statement:

(1) that the client on whose behalf he has signed had authorised him to do so,

(2) that before signing he had explained to the client that in signing the statement of truth he would be confirming the client’s belief that the facts stated in the document were true, and

(3) that before signing he had informed the client of the possible consequences to the client if it should subsequently appear that the client did not have an honest belief in the truth of those facts (see rule 32.14).

The court stated that Paragraph 3.8 creates a presumption, but it is not an irrebuttable one. In principle a party can rebut the presumption by giving evidence to the contrary.

To bring such proceedings requires the permission of the court. The guidelines as to whether permission should be granted are set out in the case of KJM Superbikes Ltd v Hinton [2008] EWCA Civ 1280 [2009] 1 WLR 2406:

(i) A person who makes a statement verified with a statement of truth or a false disclosure statement is only guilty of contempt if the statement is false and the person knew it to be so when he made it.

(ii) It must be in the public interest for proceedings to be brought. In deciding whether it is the public interest, the following factors are relevant:

(a) the case against the alleged contemnor must be a strong case (there is an obvious need to guard carefully against the risk of allowing vindictive litigants to use such proceedings to harass persons against whom they have a grievance);

(b) the false statements must have been significant in the proceedings;

(c) the court should ask itself whether the alleged contemnor understood the likely effect of the statement and the use to which it would be put in the proceedings;

(d) “[T]he pursuit of contempt proceedings in ordinary cases may have a significant effect by drawing the attention of the legal profession, and through it that of potential witnesses, to the dangers of making false statements. If the courts are seen to treat serious examples of false evidence as of little importance, they run the risk of encouraging witnesses to regard the statement of truth as a mere formality ... ”

The court considered the threshold in the index matter and was satisfied that it was met.

In deciding whether the defendants were guilty of contempt, the court needed to be satisfied that all of the requirements were met. Legal Counsel for the first to sixth defendant submitted that in order to establish contempt it must be shown that the statement “interfered with the course of justice in a material respect”. Further, I must be shown that the defendant was “aware of its significance and purpose in the proceedings”.

The court was not convinced by these submissions, stating that “the reckless individual who verifies a false statement with no care or consideration for whether it is true or false may be guilty of contempt, as well as a person who tells a deliberate lie." The court considered that the “matter was put too high” and that the “false statement must have a tendency to interfere with the course of justice in a material way, but I do not think it can be right to say that a person can only be in contempt if they succeed in causing actual interference…although a trivial falsehood may not amount to contempt, the threshold requirements for permission do not define what is or is not contempt of court, they function as a brake on the pursuit of contempt proceedings which are not in the public interest because (for instance) the allegations are not grave, or the evidence is weak, or unconvincing, or both…it does not seem to me to follow that if, after a trial, a claimant proves some significant dishonesty the court would be debarred from finding a contempt established just because the dishonesty was not as grave as that alleged at the permission stage, and would not of itself have justified the proceedings".

The court accepted that whilst LVI does not have to prove all the details of the alleged conspiracy, it does have to convince the court that each defendant made a false statement and did so knowingly, with no honest belief in its truth. Where a defendant gives or calls evidence which raises an issue, the burden lies on LVI to disprove it.

The central issues in relation to each of the defendants are whether the court can and should infer that the accident did not happen and draw inferences of dishonesty that are invited.

After considering all of the evidence the court concluded that each of the defendants knowingly made false statements in their claim forms, particulars of claim, and in the schedules of loss and witness statements in the County Court proceedings. Each defendant was found guilty of contempt of court.

As a ‘footnote’ to the main action, the court discussed the verification of the statement of truth on the CNFs which were submitted via the portal and, whilst not expressing a view on the matter, noted that many RTA claims are resolved without proceedings on the basis of the CNF. The court then went on to discuss the pre action protocol and whether this would ‘hold the key’ as to whether contempt of court proceedings could be brought against a falsely signed CNF.

A conclusion was not determined, but the court proposed that this may be worthy of consideration by those responsible for drafting the Pre Action Protocol and the CPR.

Wadsley v Sherwood Forest Hospitals NHS Foundation Trust

In this clinical negligence claim, the defendant admitted breach of duty but causation and damage were in issue.  The defendant obtained surveillance evidence following the claimant and sought to rely upon this.  The court gave a date by which all surveillance evidence was to be disclosed.  The defendant served the CCTV footage in time but the witness statements accompanying the footage were served nine days later. 

In an application for relief from sanctions the reason given for late service by the defendant’s solicitor was that the witness statements had been sent to her by e-mail and she could not re-send the e-mail as it had been deleted from the main server because of space limitations and could not be retrieved. 

There was some doubt over the accuracy of this statement. The defendant’s solicitor was subsequently dismissed and it transpired that the dismissed solicitor had delegated the task of sending all the evidence to a legal assistant who had misunderstood her instructions. 

The court had to consider whether to grant relief from sanctions and apply the test in Denton.  The court held that whilst it was debateable as to whether the breach was considered serious, the lie that accompanied it escalated the breach to one where Stage 1 of the Denton test was satisfied.  The court found that there was no good reason for the breach however, the court had to accept at face value what they were told by a partner of the firm that there had been a misunderstanding of instructions.  On balancing all the factors the court decided to grant relief from sanctions in this circumstance. 

The court went on however, to deal with the criticism that was levied by the claimant’s solicitors who refused to give their consent to the granting of relief and sanctions.  The court said that whilst in some cases consent should be given or at least no opposition should be made in this case it was absolutely correct to decline to give consent as the conduct exposed had been serious. 

Other News

When is the discount rate going to change? No longer early 2018

Having been static for 16 years, February 2017 saw the discount rate slashed from 2.5% to -0.75% and the value of future loss claims increase.

In September the Government laid draft legislation before Parliament seeking to change the law in this area, both in terms of how the discount rate is set and the frequency of its review. It is anticipated that these changes will see the discount rate settle somewhere between 0.5% - 1% and the value of future loss claims fall.

Such reforms now look unlikely  to be in place anytime soon, with late 2018 / early 2019 now being a more realistic timeframe.

Package Holiday Claims - Call for Evidence

The Ministry of Justice is consulting on proposed reforms to the Pre Action Protocol for Low Value Personal Injury claims. 

It seeks to resolve “the problem of an apparent substantial increase in the number of low value PI claims for gastric illness arising from package holidays, many of which appear to be unmeritorious.” Its recommendation is for all package holiday PI claims under £25K to be brought within the existing protocols.

The Association for Personal Injury Lawyers disagrees and seek a new protocol tailored to these specific types of claim instead.  The main objection is that the proposed amendment is too wide and will catch other types of claim such as marine and aviation claims. 

For more information contact

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