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Corporate Claims Bulletin February & March 2019

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

15-04-2019

LIABILITY


Carey v Vauxhall Motors Ltd (2019), EWHC 238 (QB)

The claimant had married her husband in 1976, at which time he was working for the defendant and coming into contact with asbestos. He stopped working for the defendant in 1979, but during the time he had worked there, his wife had washed his overalls which he wore at work.

The defendant defended the case on the basis that Mr Carey’s contact with asbestos as part of his employment with the company was de minimus, but this argument was rejected by the Judge and the claimant’s case accepted.

The Judge held that the defendant was right to have admitted that a duty was owed to Mrs Carey, despite her not being an employee of the company. He clarified the common law on this by stating that employers owe a duty of care to prevent both its employees and their families from being exposed to asbestos.

This means that a claimant is likely to be successful regardless of whether they are an employee themselves, or a family member of an employee, unless (1) the exposure was de minimus, or (2) the defendant took all practicable methods to protect the individual.

In practice this is unlikely to change the way in which secondary exposure cases are dealt with, but may make it easier for a claimant to succeed as it removes the need for a claimant to establish duty of care. 

Inglis v MoD (2019) - unreported 

The claimant had been a serviceman within the Royal Marines for 15 years and claimed that during that time, the MoD had not provided the correct protective equipment to avoid the risk of noise induced hearing loss and tinnitus.

This would have been a test case, had the parties not settled liability out of court in the month preceding the trial. The claim was settled on an 80:20 basis in the claimant’s favour. Quantum is yet to be determined but the pleaded claim is for £1.2 million on the basis that he left a lucrative career in the military and  the right to a full pension purely due to his concerns relating to his hearing.

The MoD argues that his post military jobs have also been just as lucrative if not more than his role as a serviceman with the Royal Marines.

It is believed that the MoD currently faces over 200 similar claims, but there may be more than 1500 potential claims. Whilst the case has not set legal precedent it does give an indication as to the MoD’s position in relation to claims of this type, and may encourage more servicemen and women to pursue claims of this type. 

Walsh v The Council of the Borough of Kirklees (2019), EWHC 492 (QB)

The claimant brought her claim against the Council under section 41 of the Highway Act 1980. The Council defended the claim on the basis that the claimant had slipped off her bicycle and the pothole was not dangerous.

The parties acknowledged that the Council could not rely on the defence under s58 of the Act (that the Council had taken “such care as in all the circumstances was reasonably required to secure that part of the highway… was not dangerous for traffic”), because:

  1. there had been inspections before and after the accident and the defect was not reported; therefore
  2. if the defect had been found to be dangerous, it would indicate that the inspectors were not taking reasonable care as was required.

The claimant’s claim was dismissed in the first instance, because the Judge held that although the claimant had hit a pothole and fallen from her bicycle as a result, there was “not enough reliable evidence of the dimensions or conditions of the pothole to say that it is more likely than not that it presented a real source of danger… Accordingly, the claimant fails to discharge the burden of proof”.

The claimant’s partner had attended to take photos of the pothole a couple of weeks after the accident, but the roundabout was too busy to measure the pothole. When he went back it was dark and he could not produce measurements. The photos showed a yellow line but no attempts had been made to try and determine the width of the line to attempt to work out the dimensions of the pothole. The claimant’s partner gave evidence as to the depth of the pothole and the depth was agreed, but the Judge held that the photos were virtually meaningless when assessing the danger.

The Council had attended in July 2014 and taken photos of the pothole with a tape measure in the photo to show the size. These photos formed part of the trial bundle. It was on account of this that the claimant considered the Judge had been simply wrong to find that there was insufficient evidence and the appeal was brought.

Whilst it was accepted that the photo demonstrated the size of the pothole, the claimant was ignoring that there appeared to be road material in the middle of what claimant’s counsel referred to as the hole. In addition, other photographic evidence did not demonstrate the size of the pot hole adequately, and the evidence from the Highway Inspector who had carried out the repair (but not been called to give evidence) was treated as hearsay, because there were no records of the dimensions he recorded. The Highway Inspectors that were called to give evidence, said that they had noted there was an area of damage but that it was not such that it required repair. In addition, there was no record of any report to the Council from the public that it may be dangerous.

It was noted that:

  1. Appellate courts must be very cautious in overturning a finding of fact made by a trial Judge, because the trial Judge sees all of the evidence in its entirety, unlike the appellate Judge.
  2. Appellate courts will only interfere if the trial Judge was plainly wrong, i.e. made a finding of fact which had no basis in the evidence or shows a demonstrable misunderstanding of the evidence or failure to apply it, such that the decision cannot be reasonably explained or justified.

The appellate Judge held that if the trial Judge had failed to take account of the measurements in the photos, the appeal would succeed. However, he agreed with the trial Judge that there was insufficient evidence because it is not possible to determine what effect the road material underneath the tape measure or the road material in that part of the relevant area had on the measurements. He held that the trial Judge had taken careful note of all the evidence and relied significantly on the inspectors’ evidence when finding that the claimant had not proven the pot hole to be dangerous. 

Rogerson v Bolsover DC (2019), EWCA Civ 226

The claimant resided in a property owned by the local authority. There were two inspection covers in the garden of the property and when she stepped on one in September 2014, it gave way and she fell into a sewerage void. The cover itself was owned by the local water authority.

The claimant argued that the defendant had not taken reasonable care when carrying out inspections of the property under s4(1) of the Defective Premises Act (1972). This section states “Where premises are let under a tenancy which puts on the landlord an obligation to the tenant for the maintenance or repair of the premises, the landlord owes to all persons who might reasonably be expected to be affected by defects in the state of the premises a duty to take such care as is reasonable in all the circumstances to see that they are reasonably safe from personal injury or from damage to their property caused by a relevant defect”.

The trial Judge held that the defect was not known to the defendant but should have been, because the covers were a clear and obvious defect (they were 40-60 years old and corroded). He held that there was nothing to indicate that the defendant had carried out reasonable inspections of the premises in respect of the garden. The only evidence of inspections were those in May 2013 and January 2014 which had come about due to the start of a new tenancy and a 10 year stock review. The claimant was awarded £15,082.88.

The defendant successfully appealed this decision after the appeal Judge held that the tenant had failed to establish breach of s4(1). He held that there was no duty on the defendant to inspect to ensure that relevant defects did not develop. The appeal Judge did not overturn the trial Judge’s findings of the nature or duration of the defect.

The claimant took the matter to the Court of Appeal who overturned the appeal Judge’s decision and reinstated Judgement for the claimant. In reaching this decision, it was noted that:

  1. The fact the cover belonged to the water authority did not obviate the need for an inspection by the landlord or its agents;
  2. There was insufficient evidence to find that s4 required the landlord to institute a system of regular inspection of the property beyond the two inspections that took place (it was mentioned that whether a landlord was under a duty to implement a system of inspection to satisfy s4 was to be considered on the facts of each case.);
  3. It was a defect of which the landlord should have known if the inspection had been carried out properly. In relation to this, the Court of Appeal also stated that the nature and extent of the inspections carried out was not clear and therefore it was not possible for the appeal Judge to conclude that each inspection had been carried out with reasonable care. As such, the trial Judge was right to find that the defendant had not demonstrated that (1) the duty to carry out a reasonable inspection of the garden had been discharged (2) the inspection covers created a clear and obvious safety risk;
  4. The appeal Judge was wrong to find that there was no duty on the landlord to inspect to ensure that the relevant defects did not develop as it was not reflective of the wording of s4(1). 

Blanche v EasyJet Airline Company Limited (2019), EWCA Civ 69

The claimant, Mr Blanche, was booked on a flight from Brussels to London Gatwick on 10 October 2014, but the flight was delayed by 5 hours and 42 minutes. The delay was caused by an air traffic management decision (“ATMD”) which meant the plane was not allowed to leave Gatwick for Brussels at the planned time, and in fact wasn’t given permission until over 5 hours later.

The Judge at first instance dismissed the claim on the basis that (1) because of the ATMD, the defendant had established that the delay was due to extraordinary circumstances and (2) the delay could not have been avoided even if the defendant had taken all reasonable measures.

The claimant appealed the first conclusion and on appeal, the trial Judge’s decision was upheld. However, the claimant was given permission to appeal because it “raised an important point about the extent to which the claimant could go behind an ATMD” and because it would be desirable to have definitive guidance on the issue.  The claimant took the matter to the Court of Appeal and the decision was upheld.

Wright v Troy Lucas & Co & Rusz (2019), 3 WLUK 375

 The claimant had been left permanently disabled after an operation in 2004. He instructed an unqualified legal advisor, George Rusz of Troy Lucas & Co, to handle his medical negligence claim against the NHS Trust who carried out his operation. Mr Rusz has a law degree but no legal qualifications.

Mr Rusz ran the firm, Troy Lucas & Co on his own, yet claimed that his firm’s advice came from qualified legal professionals. The headed paper used in correspondence from the firm suggested it was regulated by the SRA and the MoJ and that it was a law firm with several members of staff, which was not the case. It was later amended to state that he was a member of the Association of Personal Injury Lawyers, this was also incorrect.

Mr Rusz drafted particulars of claim seeking damages of £1.1 million. This was later amended to £3million. Based on lack of evidence, the NHS Trust succeeded in having the majority of the claim struck out. The Trust admitted some liability and agreed to settle the claim for £20,000, but the court awarded them £75,000 in costs due to the way in which the claimant had handled his case. Thereafter the claimant brought his action against Mr Rusz and his firm.

The claimant alleged that there was a contract in place where by the claimant was to pay the defendant to conduct his claim and the defendant had been incompetent which had (1) caused him to accept a settlement less than he would have achieved with proper advice and (2) resulted in a costs order against the claimant. The defendant denied that there was a contract in place and argued that he did not owe a duty of care. He also alleged that the claimant had harmed his own case by exaggerating his claim and that he had taken reasonable steps to advise the claimant and had exercised reasonable skill and care.

The Judge held that whilst the defendant had not said he was a solicitor, he had held himself out to be an experienced legal professional. He also accepted that there was a contract in place, and that as a result of that he held that the relationship between the claimant and defendant went beyond that of a “McKenzie Friend”. In evidence, the defendant accepted that he had held himself out as having the skills and expertise of a competent legal professional and that he owed the claimant a duty of care to provide the services to the appropriate standard.

The Judge held that the defendant had been negligent and failed to discharge his duty of care in that he had failed to comply with court directions, did not make attendance notes, did not advise of the possibility of ADR, made misconceived disclosure applications, made Part 36 offers without obtaining instructions, failed to seek counsel’s advice and did not provide any evidence to support the value of the claim. In addition, he had not advised the claimant  (1) of any problems which could arise from their terms of engagement (2) about insurance and funding arrangements, or (3) of his own limited ability to act.

The Judge held that had the claimant been given proper legal advice, he would have achieved damages of around £300,000. However, he accepted that the claimant had some responsibility for the poor conduct of his case and therefore reduced the sum payable by the defendant by 35%, to £263,759, plus £70,000 in costs. 

COSTS

Beardmore v Lancashire CC (2019), 2 WLUK 430

Many claimant’s solicitors use agencies to obtain medical records in personal injury claims that have exited the portal process and therefore are subject to fixed costs.

This was a public liability tripping claim which had settled for £3,500. When it came to costs, the defendant argued that whilst the charge for providing the records from the hospital was recoverable, the charge by the agency for obtaining the records was not. Had the solicitors obtained the records themselves, the cost of doing so would have been contained within the fixed costs recovered by the claimant.

The defendant’s argument was that rule CPR 45.29l intended to restrict the recoverability of agency fees to RTA claims only. However the Judge held that whilst the wording of the rule only specified that agency fees were recoverable in RTA claims, it did not specifically state that they were not recoverable in EL/PL cases and it would have been simple for the rule drafters to have included this restriction had they intended it.

The sum claimed was £96 (including VAT) for each set of records obtained. The Judge did reduce this to £30 (plus VAT) for each set obtained, which he believed to be “reasonable and proportionate”. 

PROCEDURE 

Basir v Larizadeh (2019) – unreported

The claimant  had been involved in a road traffic accident and brought a claim for credit hire and personal injury. At first instance, the Judge found the claimant to be fundamentally dishonest in relation to his injuries but still awarded £1,824 in relation to credit hire, plus costs for that element of the claim.

The defendant appealed the decision and the appeal Judge dismissed the whole claim. The defendant’s insurer, Aviva, was awarded £19,000 in costs for defending the proceedings, plus indemnity costs for bringing the appeal. The Judge held that to follow the decision of the trial Judge would give “perverse results where a claimant who had completely fabricated their claim for personal injury would be in a better position claiming for vehicle damage, than a claimant who merely exaggerated”. 

Cameron v Liverpool Victoria Insurance Co (2019), 1 W.L.R. 1471 

In 2014, the claimant was involved in an accident with a Nissan Micra. The driver of the Nissan did not stop but the number plate was recorded by a passer-by. The vehicle which was insured by the defendant, was traced to a Mr Hussain.

The claimant issued proceedings against both Mr Hussain and LV. LV made an application for summary Judgement on the basis that the claimant could not prove Mr Hussain was driving at the time of the accident. The claimant then applied to amend the claim to replace Mr Hussain as the first defendant to “the person unknown…”.

The application was refused and LV was granted summary Judgement in 2014. The claimant appealed and the appeal was dismissed in 2015. The claimant appealed again, and in 2017, the Court of Appeal granted the appeal and reversed the decision. By this time, it was accepted by both parties that Mr Hussain was not the driver of the Nissan Micra. LV then appealed to the Supreme Court.

The Supreme Court held that it would not be right to allow a claim to proceed against a person unnamed that cannot be identified. The position would be different if the person were unnamed but could be identified. The reasoning for this is that if a person is unnamed and unidentifiable it would not be possible to effect service. Therefore unless service can be effected on the person (by alternative service if necessary), then a claim cannot be brought against them.

This means that any claims against insurers on the basis of an unidentified driver will likely be discontinued and the claims brought against the Motor Insurers Bureau instead. 

Liverpool Victoria Insurance Co v Zafar (2019), 3 WLUK 290

In October 2018, the defendant was found guilty of 10 counts of contempt of court after revising his prognosis within medical reports following suggestion from his instructing solicitor without re-examination or clinical justification. His medico-legal business was such that he would examine claimants and prepare the reports in low value personal injury claims in 15 minutes.

The Judge held that he had (1) not exercised professional Judgement, (2)  been reckless as to the truth of the revisions and (3) been reckless as to whether the amendments would mislead the court. He was given a suspended 6 month custodial sentence but permission to appeal was granted because there was no authority as to the appropriate sentence for expert witnesses in contempt of court.

The solicitor who the defendant worked with, was sentenced at the same time as the defendant, and given a 15 month prison sentence (not suspended) for lying in witness statements and forging a client’s signature. LV appealed the decision in relation to the defendant to try to gain clarity on the circumstances which allow an individual in contempt of court to escape a custodial sentence.

The Court of Appeal held that the sentence was unduly lenient as “the deliberate or reckless making of a false statement in a document verified by a statement of truth will usually be so inherently serious that nothing other than an order for committal to prison will be sufficient”. This is regardless of whether it is a lay witness or an expert.

The Court held that the defendant’s contempt was aggravated by (1) his motive of financial gain (the business generated £350k gross income in a year) meant that he wanted to be producing as many reports as he could as quickly as he could, (2) as an expert he knew how heavily the court would rely on his report being truthful and therefore reckless and deliberate acts had very little between them (3) he had produced false statements persistently and one he had been deliberately dishonest and (4) proceedings had been delayed as a result of his conduct.

The court held that a minimum of 9 months in custody (to be served immediately) would have been appropriate, but that they would not amend his sentence because it would be unfair to impose the amended sentence on him when it had arisen out of a need for guidance on sentencing. However, the court did rule that the defendant should pay LV’s costs which were over £100k. 

Cathay Pacific Airlines Ltd v Lufthansa Technick AG (2019), EWHC 484 (Ch)

The claimant’s claim related to a contract for aircraft maintenance. They commenced proceedings under CPR Part 8, although CPR Part 7 is the usual method of bringing proceedings for compensation.

CPR Part 8 is habitually used when the proceedings are being brought for a purpose other than the recovery or award of money and/or there is no substantial dispute of fact, such that lengthy Part 7 proceedings are not necessary. Examples include proceedings for (1) approval of an infant settlement, (2) a declaration in relation to the law, (3) a contract is sought, (4) costs after the main claim has been settled and (5) provisional damages.

In this case, the court held that proceedings should not have been brought under Part 7, because the proceedings related to violation of a contract and they had not consulted with the defendant before doing so. The Judge held that by bringing proceedings under Part 8 without consulting with the defendant beforehand put the parties on an unequal footing, which was at odds with the overriding objective. It was therefore ordered that the case proceed as a Part 7 claim instead.

The Judge then set down some new guidance as to the steps to be taken, should a claimant consider commencing Part 8 Proceedings. He said that they could be derived from the rules under CPR 1.3. It is expected that the rules need only be followed when CPR Part 8 is not the usual method of proceedings (e.g. those examples given above). The steps are as follows:

1)    tell the defendant this is being considered

2)    provide an explanation as to why CPR 8 is more appropriate than CPR 7

3)    prepare the question or issue which the claimant wishes to ask the court under CPR 8 and send a copy to the defendant for comment

4)    identify any agreed facts relevant to that issue 

Royal Automobile Club Ltd v Wright (2019), 3 WLUK 443

The defendant’s application to withdraw an earlier admission of liability was denied and the decision was upheld by the High Court on appeal.

The respondent was an employee of the applicant and had brought a claim having fallen down a flight of stairs at work in June 2015. Initially, the respondent detailed her injuries to include two breaks in her right leg and chronic pain. She also confirmed that she would be obtaining reports from a number of medical experts. The applicant’s claims handler suggested that the matter would not be worth more than £25,000, the respondent stated this to be incorrect and that the claim would be worth more than that. In September 2016, liability was admitted.

In August 2017, after medical evidence had been obtained, the respondent provided a detailed Schedule of Loss which indicated losses of around £1million. The respondent at that point indicated that they were re-investigating the accident circumstances and requested consent to withdraw their admission of liability. The respondent denied this and issued proceedings in which they relied on the applicant’s admission of liability.

The applicant then applied for permission to withdraw the admission under CPR PD 14 para 7.2 on the basis that the increased value of the claim amounted to a change in circumstances.

Under Para 7.2, the following circumstances of the case should be considered:

  • the grounds on which the admission was sought to be withdrawn
  • the parties conduct
  • the prejudice that would be suffered if the admission was/was not withdrawn
  • the stage the proceedings had reached
  • interests of justice
  • claim’s prospects of success

At the application hearing, the Master rejected this and concentrated on the prospects of success for the respondent in their claim. The Master denied the application on the basis that (1) liability would be found in favour of the respondent at trial, and (2) the applicant could still raise allegations of contributory negligence in relation to the extent of the respondent’s injuries.

On appeal the Judge upheld the Master’s decision and further indicated that it was unreasonable for the applicant to have assumed prior to the Schedule of Loss that the value of the claim would be modest in view of the injuries and intention to obtain reports from a number of experts. In addition, it would be prejudicial to the respondent to allow the admission to be withdrawn 3 years later when it would be more difficult to investigate the accident.

Finally the Judge stated that the applicant had shown a cavalier attitude to justice to try and withdraw an admission after interim payments has been made and an investigation would be more difficult. The Judge did however comment that the whilst the Master may not have needed to conclude that the respondent would achieve success at trial, he did have to consider prospects of success, and ultimately the Master’s overall conclusion to deny permission to withdraw the admission was correct. 

Personal Representative of the Estate of Hutson v Tata Steel UK Ltd (formerly Corus UK Ltd) (2019), EWHC 143 (QB) 

The group action was based on allegations by former steel workers employed by the defendant and their families, who alleged that they had been injured by harmful dust and fumes when working for the defendant. There had been a deadline set for registration to the group action, and this had already been extended once.

Prior to registration the claimants were required to obtain a grant of probate or letter of administration. Twenty additional claimants sought permission to be added to the group action after the extended deadline had passed (two months earlier), because there had been delays in obtaining these documents.

The defendant contended that they would be prejudiced if the additional claims were added because:

  • they had not had the opportunity to ensure accurate reserves
  • they could not Judge the extent of disclosure
  • they had not had the opportunity to consider whether any of these additional cases should be used as a lead case.

The claimants countered that:

  • the additional claims would not create a significant increase to the disclosure exercise (only 20 additional claims being added to the already 222 claims registered before the deadline)
  • by not allowing them to join the action would have serious consequences on the individuals as it was agreed between the parties that they would be unable to bring a claim outside the group action.

The Judge in the High Court, held that the additional claims would not affect the court timetable, there would be no savings from refusing to allow the claims and the claimant’s prospects of achieving substantive justice if they were not allowed to join the group litigation order would be prejudiced. Permission was therefore granted permission for the 20 additional claims to be added to a group litigation order. 

Harbour Castle v David Wilson Homes Ltd (2019), EWCA Civ 505

The claimant had previously brought a claim for £27.5 million against the defendant but the claim was struck out because the claimant failed to comply with an unless order to provide security for costs.

Four years later, the claimant brought the claim again but with an additional claim for £186.4 million for consequential losses. The defendant applied for the claim to be struck out as it was an abuse of process to bring the same claim twice, the High Court Judge agreed with the defendant and struck out the claim.

The claimant appealed.

The Court of Appeal provided general guidance on abuse of process as follows:

  • it is for the party asserting that there has been an abuse of process to prove that to be the case.
  • whether or not there has been an abuse of process is not discretionary but definitive with only one answer. However it does not automatically follow that if there has been an abuse of process, the court will strike out the claim.
  • a court is right to strike out a claim for abuse of process if it would bring the administration of justice into disrepute if the matter was allowed to proceed.
  • where the abuse of process alleged is that a second set of proceedings have been brought in relation to the same issues as in a previous set of proceedings, an abuse of process will be found if the first action was struck out for:
    • a deliberate failure to comply with a peremptory order (such as in this case, for security for costs)
    • an inexcusable delay in its prosecution of the claim
    • or a wholesale disregard for the rules

The Court of Appeal held that the failure to comply with an unless order to provide security for costs was deliberate and that the court was right to strike out the claim for abuse of process. 

OTHER NEWS

Reduction in personal injury claims.

There were 19% fewer personal injury claims issued in the last quarter of 2018, than there were in the same period in 2017 and the number of claims issued in 2018 was at the lowest level since 2011 despite the number of money claims in total being higher than ever before. This reduction in personal injury claims is thought to be as a result of the changes to the Civil Procedure Rules relating to holiday package gastric illness claims, and the whiplash reform. 

The MoJ must make a decision on the discount rate by 6 August 2019. 

The Lord Chancellor's review of the personal injury discount rate began on 19 March. The review must be complete with a decision as to whether or not to change the discount rate, within 140 days. As part of the review, the Lord Chancellor must consult with the Government Actuary and Treasury, and this is due to begin before 7 April 2019.

The current discount rate is set at -0.75% but it is expected that the discount rate will be increased to between 0% and 0.5% following the Lord Chancellor's review. Some insurers and personal injury claim investment companies have reported claims already being settled with a discount rates of between 0% and 0.5%. Investors have also reported defendants using delay tactics so that settlement can be reached once the new discount rate is set. 

New Regulations regarding NHS Charges come into Force on 1 April 2019 

On 1 April 2019, the Personal Injuries (NHS Charges) (Amounts) (Amendment) Regulations 2019 (SI 2019/285), come into force. These regulations increase the sums recoverable for NHS care provided as a result of injuries sustained after April 2019. The cost of ambulance services has increased from £208 to £219 and in-patient care from £846 to £891 per day, with a maximum charge in respect of an injury increasing from £50,561 to £53,278.

 

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