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Corporate Claims Bulletin February 2018

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



Razumas v Ministry of Justice [2018] EWHC 215 (QB)

The claimant is bringing a claim for clinical negligence against the Ministry of Justice following the medical care he received during various periods in custody between 2010 and 2013.

The claimant had been in prison for various periods between 2010 and 2013.  The Ministry of Justice had overall responsibility for the prisons in which he was incarcerated.  It was common ground that the medical care the claimant had received for cancer was deficient in various respects.  As a result of the negligence the claimant had to have his leg amputated above the knee.

The issues to be decided were whether the Ministry of Justice were directly or vicariously liable for the clinical negligence, whether the claim was barred by reason of fundamental dishonesty, and whether his treatment was a breach of the Human Rights Act 1998.

The nature of the relationship between the claimant and defendant meant there was a duty of care in relation to matters arising out of custody, such as providing a safe environment.  The duty also probably extended to access to healthcare.  The system for the provision of healthcare was not deficient in the claimant’s case.  It was the healthcare providers who had been negligent.

The claimant had to show that the negligent healthcare was one of the particular types of risk the Ministry of Justice has undertaken to protect him from when assuming his physical custody.  The provision of healthcare was not one of the prisons mainstream, or essential functions.  There was no actual breach as the Ministry of Justice had entrusted the relevant care to someone else.  The Ministry of Justice was under no non delegable duty of care.

The Ministry of Justice was not vicariously liable for the negligence of the healthcare providers.  The tort was not committed as a result of activity being taken by the healthcare provider on behalf of the Ministry of Justice, but instead the primary care trust.  There was no relationship of employment or even delegation.  The Ministry of Justice’s control only extended to the location of the service and security considerations.

The claimant’s failure to seek medical attention during the periods he was not in custody was an intervening cause.  The claimant’s positive averment he sought medical treatment whilst not in custody was knowingly dishonest, affected the presentation of his case and met the test for fundamental dishonesty.

Any claim under the Human Rights Act was time barred, and the correct defendant in any event would be the healthcare provider.

Carr v Panel Products (Kimpton) Ltd [2018] EWCA Civ 190 (CA)

A claim for noise induced hearing loss made 32 years after the cessation of the relevant employment was correctly statute barred.

The employee was 63 at the date of trial.  Between November 1974 and April 1981 the claimant was employed to operate woodworking machinery.  In 1981 the employer went into liquidation and all the machinery was sold.  Neither party had any documentation or witness evidence.

It was common ground the employee worked on the machines at the times he claimed in such a noisy environment with no hearing protection that he would have been exposed to excessive noise.  The level of damages was agreed at £7,000.

The claimant submitted he had initially attributed his hearing loss to ageing.  The judge made a clear finding against the employee on that point having heard oral evidence.  The claimant’s credibility was a matter for the judge’s assessment.

On appeal the claimant argued the judge had been wrong to conclude that if he had consulted his GP within a year of identifying his hearing loss he would have been told the possible causes of his problem. The Court of Appeal held the judge was entitled to find that an earlier appointment would have led to the claimant bringing proceedings, and reaching a common sense conclusion as to what the claimant was likely to have been told by his GP.

The potential prejudice to the claimant from the loss of his claim was the normal consequence of losing a limitation argument.  The claimant had to show that the prejudice outweighed that of the defendant and went beyond the mere loss of the claim.  The claimant failed to do so.  The appeal was dismissed.

Robinson v Chief Constable of West Yorkshire [2018] UKSC 4 SC

It was important not to impose unrealistically demanding standards of care on police officers acting in the course of their operational duties, but officers did not have blanket immunity  in respect of their conduct in investigating or preventing crime. They were generally under a duty of care to avoid causing personal injuries where such a duty would arise under ordinary principles of negligence.

In July 2008, the claimant was walking along a shopping street in Huddersfield.  She was described as a relatively frail 76 year old lady.  She was knocked over by a group of men struggling with each other, two were policemen, attempting to restrain and arrest the third who was a suspected drug dealer, and sustained injury.

In the first instance the court found the decision to arrest involved a foreseeable risk that the claimant would be injured.  She was in close proximity to the suspect, was elderly, and there was a real risk the suspect would try to evade arrest.  The judge found the officers had acted negligently because one of the officers admitted not noticing the claimant and accepted he ought to have been taking care for the safety of members of the public. Due to the risk the suspect may escape the officers could have waited for the members of the public to pass by, which would also have allowed the back-up officers to reach them and provide assistance.

However, the judge in the first instance held that due to the decision in Hill v Chief Constable of West Yorkshire  [The case was brought by the mother of a murder victim for failing to arrest a mass murderer before he killed her daughter.  It was held that although the police owed a duty to enforce the criminal law, they could not be liable in damages for negligence to individual members of the public for damage caused by a criminal whom they had failed to apprehend] the police had immunity against such claims in negligence.

The Court of Appeal held there was no duty of care owed in the first place, and that even if the officers did owe such a duty, they had not breached it.  The court applied the Caparo test.  They considered that most claims against the police in negligence for their acts and omissions in the course of investigating and suppressing crime and apprehending criminals would fail at the third stage of the test, i.e. it would not be fair, just and reasonable to impose a duty of care because the courts have concluded that the interests of the public will not be best served by imposing a duty. 

It was accepted there may be exceptions to this, i.e. outrageous negligence, or where they have assumed responsibility for the claimant, but no such exceptions applied in this case.  The Court of Appeal also rejected there was proximity between the claimant and the officers.  They criticised the judge in the first instance for acting as if he were an expert in arrest and detention of suspects and did not believe they could have waited to arrest the suspect.

The case was then appealed to the Supreme court.  They held the existence of a duty of care does not depend upon the application of the Caparo test where there are established principals of the law of negligence.  There is no question a police officer, like anyone else, can be liable in tort to someone who is injured as a direct result of his acts or omissions.  There is no general rule that the police are not under a duty of care when discharging their function of preventing and investigating crime.  They are under a duty to protect an individual from danger of injury which they themselves have created.

Unlike the case of Hill the officers played an active role in the events.  They had foreseen the suspect may evade arrest as they had called for back-up, they were in a busy shopping street with pedestrians walking by, and therefore, reasonably foreseeable they may get knocked over in the course of arrest.

The judge in the first instance was entitled to find the officer was negligent when he did not notice the claimant.  The actions of the suspect did not constitute a Novus actus as it was an act which was reasonably foreseeable by the officers.

The case of Hill can no longer be seen as authority for the proposition the police have immunity in respect of anything they do in investigating and preventing crime.  The injury was caused by the officers breach of care, the claimant was injured by being exposed to the danger they had a duty to protect her from.

There seems to be a distinction between cases of positive acts, and those with omissions where the police failed to do something, i.e. did not create the danger that led to the harm but failed to prevent it.

Hawkes v Warmex Ltd [2018] EWHC 205 (QB)

The claimant was the executor of the estate of his deceased mother (“M”) and brought a claim for damages for personal injury allegedly suffered by her during the course of her employment with the defendant.

M died of mesothelioma in October 2014.  The claimant alleged she was exposed to asbestos between 1946 and 1952 when making electric blankets in the defendants factory.  The blankets contained an inner lining through which it was M’s task to thread electrical wire.

In order to succeed the claimant had to show that on the balance of probabilities the linings were made of asbestos and that either the Asbestos Industry Regulations 1931 applied to the factory, or that the defendant had breached s47 of the Factories Act 1937, or its common law duty of care.

The evidence available included conflicting expert reports, patent applications made by the defendant in 1942 for a heated jacket and in 1958 for an electric blanket, and the results of tests carried out on an electric blanket manufactured by the defendant in the early 1960’s.

The claimant failed to prove the linings were made of asbestos.  Although asbestos was present in the factory this was because the wire was coated in it.  The patent recorded asbestos was an insulating material in the wire.  The tests on the 1960’s blanket  showed asbestos in the heating element but not in the lining.

Obiter comments were made.  Had the linings been made of asbestos the court would have found the 1931 regulations did not apply.  The regulations applied to premises in which “all processes in the manufacture of asbestos textiles, including preparatory and finishing process” were carried out.  Although they should be interpreted broadly, the threading of wire through a lining did not fall within paragraph ii which dealt with the manufacture of textiles containing asbestos, not the manufacture of products made with such textiles.  The natural meaning of finishing a product did not mean turning it into something else.

For s47 of the Factories Act to apply the processes in the factory had to give off a substantial quantity of injurious or offensive dust or fumes. The claimant had failed to establish this.  Between 1946 and 1952 it had not been known that mesothelioma was a potential consequence of exposure to asbestos, and it had not been known that very low levels of asbestos dust could cause the disease.  However, an employer would be liable if any sort of asbestos-related injury was foreseeable and it had failed to reduce the employees exposure to the greatest extent possible.

Bussey v 00654701 Ltd (Formerly Anglia Heating Ltd) [2018] EWCA Civ 243 (CA)

The deceased had worked for the defendant between 1965 and 1968.  In 1970 regulations came into force which imposed obligations on employers to adopt safeguards against their employees exposure to asbestos.  In the same year a technical data note (TDN13) was published containing guidance on whether asbestos levels were such that they present a danger to health.

The deceased contracted mesothelioma and died in 2016.  His widow brought a claim.  According to the joint medical evidence mesothelioma could occur  after low level asbestos exposure and there was no minimum risk threshold.

The court in the first instance held that the exposure was close to, but within, the limits of TDN13 and that it was therefore, bound by Williams v University of Birmingham [2011].  The court interpreted Williams as meaning that, in relation to periods before 1970, a claimant could not succeed if his exposure was below that in TDN13.

The claimant appealed the decision, the issue on appeal was whether, given the relatively low level of exposure to asbestos and the state of knowledge at the time, the defendant had been under a duty to take protective measures.

The appeal was allowed.  The overall test of an employer’s duty was that of the reasonable and prudent employer taking positive thought for the safety of his workers in the light of what he knew or ought to have known, and keeping reasonably abreast of developing knowledge.

In Williams it was held that the employer had only breached its duty of care if it was reasonably foreseeable that the levels of asbestos to which the employee had been exposed led to an “unacceptable risk of asbestos related injury”. TDN13 was said to be the best guide as to what levels were acceptable in 1974. However, Williams was not developing a principal of law, and the case should not be read that TDN13 was a universal test of foreseeability in mesothelioma cases. 

Although TDN13 was an indicator of exposure levels which would trigger a prosecution in 1970 it was not determinative in every case.  If the judge in the first instance had not felt constrained by Williams he would have looked at the issues of foreseeability and breach more broadly.  The judgment had to be set aside.  However, because the employer had not adduced any factual evidence of its knowledge in the 1960’s the court could not determine liability and the case was remitted on that issue.

Costs & Procedure

Corstorphine (A Child) v Liverpool City Council [2018] EWCA Civ 270 (CA)

A judge had been wrong to make a costs order against the unsuccessful claimant in a personal injury claim on the basis qualified one way costs shifting did not apply to part 20 defendants added to proceedings.

The claimant was injured in an accident in a playground which was the responsibility of the local authority defendant.  The injury was caused by an allegedly defective tyre swing.

The claimant entered into a CFA in August 2012 with his solicitors to pursue the claim against the local authority.  The CFA was supported by an ATE policy which provided cover against the claimant having to pay the costs of the local authority should he be unsuccessful in his claim.

In November 2012 the claimant issued his claim against the local authority.

In April 2013 the qualified one way cost shifting (“QOCS”) regime came into effect.

In October 2013, the local authority issued a part 20 claim against the company who designed and manufactured the swing, and the company from which they purchased the swing. The part 20 defendants were joined to the main action and all the claims were tried at the same time.

The judge dismissed all claims.  When it came to the issue of costs he held that there was no issue regarding the costs between the claimant and the local authority as the CFA had the benefit of an ATE policy.  This was noted to be a pre-commencement funding agreement (“PCFA”) within the meaning of CPR 48.2 and that this encompassed the claims brought against the second and third defendants because it related to “the matter that is the subject of the proceedings in which the costs order is to be made”. He concluded that QOCS was disapplied against all the defendants pursuant to CPR 44.17 (QOCS does not apply to proceedings where the claimant has entered into a pre-commencement funding arrangement) and ordered the claimant pay all the costs of the primary claim.  He held the costs of the part 20 claims should be paid by the local authority but that these costs can be added to the cost of the primary claim, and therefore, also payable by the claimant.

The claimant appealed.

The court held the purpose of the QOCS regime is the protect personal injury claimants from adverse costs orders.  A claimant who lost on liability would therefore, not have to pay the successful defendant’s costs.  Rule 44.17 was a transitional provision which provided that QOCS did not apply where the claimant had entered into a PCFA with a CFA or ATE entered into on or before 1 April 2013.

There was no CFA or ATE which applied to the claims against the second and third defendant.  If QOCS did not apply the claimant had no protection against adverse costs.  At the time of the PCFA the dispute was the claim against the local authority.  At the time of the introduction of QOCS the claimant had no vested rights or expectations in respect of claims against the second or third defendants.

The correct construction of CPR 48.2 was that the relevant “matter” in this case was the claim for damages for personal injury against the local authority.  It followed therefore, the judge should have concluded QOCS applied to the claims against the second and third defendants and therefore, the claimant was entitled to QOCS protection in respect of those claims.

It was fair and proportionate to vary the costs order made in favour of the local authority to exclude the costs of the second and third defendants.

Collins v Lawrence [2017] EWCA Civ 2268 (CA)

The claimant sought permission to appeal against a judge’s decision that his claim for damages was time-barred.  It should be borne in mind in accidents on a ship, involving carriage by sea, may have a shorter limitation period.

On the 14 November 2010, the claimant went on a fishing boat owned by the defendant.  The practice to disembark from the boat was to winch it onto the beach and then use free standing steps to descend down to the beach.  The steps were a semi-permanent structure on the beach.

It was the claimant’s case that while he was descending the steps he slipped on the bottom step, causing him to lose his balance, fall and over flex his knee joint and rupturing his quadriceps tendon.

On 25 September 2013, the claimant issued proceedings.  The judge found the Athens Convention 1974 applied as the claimant was still disembarking at the time of the accident.  The Convention governs the carriage of passengers by sea and has a two year limitation period.  Therefore, the claim was statute barred.

The claimant appealed.

The Court of Appeal held it was correct the claimant was still disembarking at the time of the accident.  Disembarkation was not complete until the claimant was ashore, which in this case meant being on the beach.  The steps were part of the disembarkation equipment as would be a gangway.  Disembarkation covered the whole period of moving from the vessel to a safe position on the shore.  The interpretation reflected the natural meaning of the word disembarkation.  It made sense for the carrier to be responsible for overseeing the way people left a vessel.

JMX (A Child) v Norfolk and Norwich Hospitals NHS Foundation Trust [2018] EWHC 185 (QB)

Following a clinical negligence trial the court had to consider the cost consequences of the defendant’s failure to accept the claimant’s part 36 offer.

Before the trial the claimant made a part 36 offer to accept 90% of the claim.  The relevant period for the offer expired one day before the trial.  The offer was not accepted by the defendant.

The claimant was successful at trial.

The issue before the court was whether the claimant’s offer was a genuine offer of settlement for the purposes of CPR 36.17(5)(e).  It was introduced to stop claimant’s making very high settlement offers to place the defendant at risk of indemnity costs.

The defendant argued that an assessment of the risks of litigation as being only 10% was a significant under evaluation and could not have been a genuine attempt to settle.

The court held that there was no reason to doubt that the offer to accept 90% had been because the claimant’s team thought their claim was strong, but was prepared to accept a modest discount to secure absolute certainty of a settlement.  A discount of 10% was not a token amount when the level of damages in serious cases is significant.  The offer was seen as a genuine offer of settlement and the normal consequences of the claimant having beaten his part 36 offer followed.

Carrasco v Johnson [2018] EWCA Civ 87 (CA)

The action concerned a claim to recover the balance of two unsecured loans made by the claimant to the defendant on 17 November and 18 December 2008, each of £20,000.

The judge found the loans were both made on the same terms, that they would be repaid in 2 months with interest of £3,000, and that, in the event of default, the loans would also attract £2,000 in monthly interest.  Shortly before the trial the claimant abandoned her claim for contractual default interest, reducing the amount claimed from £300,000 to £34,500.

The defendant did not repay the loan or the interest in time, and only made repayments in 2009 totalling £11,500.  This left £28,500 and interest of £6,000 outstanding.

Proceedings were commenced in May 2010, and on 21 January 2011 the claimant obtained an order for an interim payment in the sum of £28,500 which the defendant did not comply with.  A series of charging orders were made against four properties owned by the defendant.  The claimant took no action and the case was dormant until 2014.

At trial the defendant raised a number of defences; the agreements were unenforceable and the loans irrecoverable as the claimant was an unlicenced money lender within the meaning of s41 of the Consumer Credit Act 1974, that there was an unfair relationship between the parties within the meaning of s140 of the same act so that the obligations under the agreement should be varied or discharged, if the contractual interest was agreed it should be void as a penalty, and that the default rate was set at a higher level than the term rate.

The claimant was successful and the judge in the first instance awarded interested at 3%. At the time the bank base rate was 0.5% and the judgment rate was 8%.  The judge noted the court has discretion as to the rate to be awarded, interest is not awarded as compensation for damage done but for the claimant being kept out of money that ought to have been paid, the bank rates are lower now than in 2009, the loans were between private individuals.

The decision was appealed on the grounds the award of 3% did not reflect the finding of fact made by the judge as to the actual cost to the claimant of being kept out of her money, the judge failed to take proper account of the expert evidence as to borrowing rates in 2008, and evidence from the claimant as to missed investment opportunities, the judge failed to have regard to overall fairness and have sufficient regard to the fact the claimant obtained an order for an interim payment in January 2011.

The Court of Appeal noted commentary to CPR Part 7 in the White Book provides examples of cases where blending between rates was justified and awarded was referred to.  It was held the court had a broad discretion.  The judge was entitled to treat the claimant as falling between a borrowing and investment category of claimant and although the award was lower than the borrowing rate it was well above the deposit rate.  The judge was also entitled to reduce the rate to reflect the delay in proceedings from 2011 to 2014.  An award of 3% did not involve an error in approach nor was it outside the boundaries of the court’s discretion.  Therefore, no error of law was demonstrated and the appeal was dismissed.

Bilta (UK) Ltd (in liquidation) & Others v (1) Royal Bank of Scotland Plc (2) Mercuria Energy Europe Trading Ltd [2017] EWHC 3535 (CH)

The claimant companies in liquidation applied for disclosure and inspection of documents held by the first defendant bank.

The main claim arose from the claimant’s claim for compensation from an alleged missing trader intra-community fraud which was said to affect the UK market for European Union Allowances (“EUA’s”). The alleged fraud involved companies failing to account to HMRC for accrued VAT and instead paying their VAT the third parties before going into liquidation.  The claimant’s alleged the defendant’s had shut their eyes to an obvious fraud. 

The documents requested related to an investigation by the first defendant following a letter from HMRC confirming its decision to make an assessment in respect of over claimed VAT.  The documents included transcripts of interviews with key employees of the first defendant.  The investigation led to a report to HMRC by a firm of solicitors on behalf of the first defendant.  The first defendant claimed the documents were subject to litigation privilege.  The dispute centered on whether the documents were made for the “sole or dominant purpose of conducting that litigation”.

It was held that the documents were privileged.  Determining whether the sole or dominant purpose was litigation was a question of fact.  The letter from HMRC analysed the relevant law, applied it to the facts as HMRC understood it before asking for the banks comments on them.  This was therefore, similar to a letter before action.

The fact the first defendant instructed solicitors strongly suggested it anticipated a claim and was gearing up to defend it.  The terms of the first defendants report to HMRC set out reasons why HMRC were not entitled to deny the first defendant the input tax and set out a detailed legal and factual analysis.  The report drew on various aspects of the interviews but did not expressly waive privilege in the underlying material.  This was closely comparable to a response to a letter before action. in ordinary commercial litigation.

It was held the documents and interviews were brought into being by the bank and its solicitors for the sole, or at least the dominant, purpose of expected litigation and were therefore covered by litigation privilege.

Other News

Consultation on Introducing Fixed Recoverable costs in Lower Value Clinical Negligence Claims

The Department of Health and Social Care accepted the proposal to set up a working group to develop a bespoke process for clinical negligence claims and a grid of costs.  The Civil Justice Council working group is expected to report in Autumn 2018.

Civil claim following failed rape conviction

Miss M is bringing a claim against Stephen Coxon.  Mr Coxon was charged with raping Miss M during fresher’s week at St Andrew’s University in 2013.  In November 2015, a jury found the case against Mr Coxon not proven, which has the same effect as being found not guilty.

Miss M has commenced a civil action against Mr Coxon for damages and financial losses totalling just under £100,000.  She has been granted funding to cover her costs of the action by the Scottish Legal Aid Board.  The case will begin in March.

This is seen as a landmark case as it is thought to be the first in almost 100 years where an action has been launched following an unsuccessful criminal prosecution for rape.

For more information contact

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