Global menu

Our global pages

Close
Eversheds Corporate Claims Bulletin

Eversheds Corporate Claims Bulletin

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

15-11-2016

Welcome to the new edition of Eversheds' Corporate Claims Bulletin, which provides an overview of recent case law and important legislation changes from October 2016.

We hope you find this briefing useful and informative.

If you require any further information, please find our contact details at the end of this newsletter.

Liability

Edwards v Sutton LBC [2016] EWCA Civ 1005

The defendant (SLBC) appealed against a decision that it was primarily liable under OLA 1957 in respect of a serious injury sustained by the respondent (E) when he fell from a small ornamental footbridge in a park onto rocks in the water below.

E cross-appealed against the decision that SLBC was not required to construct railings along the bridge.

The bridge, being over 100 years old, had a low parapet about 26-30cm high. E had attempted to cycle the narrow path over the bridge, when he fell into the water.

In subsequent personal injury proceedings, the judge held that, although there was nothing wrong with the state of the premises, and no history of accident or injury, the local authority had had a duty under s.2 of the Act to ensure that visitors were ‘safe’.

A distinction was drawn between that provision and s.1(1)(a) of OLA 1984, which regulated whether a duty was owed by reason of any danger due ‘to the state of the premises’. He found that SLBC should have identified and assessed the risk, it was not required to fit railings, but should have warned about the low parapet.

E was held 40% contibutorily negligent.

The issues considered on appeal were:

1. whether the judge had misapplied the 1957 Act;

2. whether the judge had taken the right approach to the risk assessment; and

3. whether the judge had reached the correct conclusion regarding the installation of railings.

Held:

1. Determining an occupier’s duty in each case involved first identifying the dangers. The judge below had not adequately focused on that issue. It was understandable that an unfenced bridge with low parapets would present more danger of a fall than a bridge with high guard rails, but there were many such unprotected bridges up and down the country. Any user of the bridge would have appreciated the need to take care, especially a user pushing a bicycle to his side. The judge below had set too high a standard.

2. A formal risk assessment would not have produced anything other than a statement of the obvious.

3. The existence of modern requirements for side barriers to be fitted to new structures did not mean that occupiers were liable if an older structure did not meet these standards.

Appeal allowed, cross-appeal dismissed.

G4S Care and Justice Services (UK) Ltd v Manley [2016] EWHC 2355 (QB)

The defendant (G4S) appealed against a County Court decision that it was in breach of OLA 1957 s.2(2) for a failure to restore power to the cell of the respondent prisoner (M) within a reasonable time following an electricity failure.

The power failure occurred four days after M had returned to the prison after a hip operation. He reported the failure between 20:15 and 20:20 via the intercom in his cell. He informed the officer that he had mobility problems. The officer passed on the power failure notification, but not the information regarding M’s circumstances.

Power was restored at 20:47, however during the time that the power was out M had fallen and hit his head whilst trying to get to the toilet.

Power failures in the prison were frequent and lasted approximately 10 minutes. The judge considered that the amount of light in the cell would have enabled M to see the main objects within his cell, but not the slipper that was sticking out from under the bed, which caused him to fall.

The judge held that the power supply should have resumed at 20:35.

The points considered on appeal were as follows:

1. Was the judges approach to s.2 incorrect because he had failed to consider whether the lighting conditions, as an objective fact, rendered the premises unsafe; and

2. Whether the judge had imposed an unreasonably high standard of care on G4S.

It was decided that the judge had taken the right approach to s.2 and had applied the correct test. The claimant had to establish that G4S had failed to:

1. Take such care as was reasonable in the circumstances;

2. To ensure that M would be reasonably safe in using his cell.

The judge considered that the senior officer should been told the claimant had reduced mobility and was less able to look after himself under poor lighting conditions. the lighting situation would have been rectified far quicker had this information been passed on.

The decision did not impose an unduly high standard of care. It was not a case of the judge treating a delay of 15-20 minutes beyond the target time of 10 minutes for restoring electricity as a breach of s.2 duty. The judge was concerned with the failure to restore power within normal timescales where G4S knew, or ought to have known, of the need for urgency.

Appeal dismissed.

Practice and Procedure

Dixon v Radley House Partnership (A Firm) [2016] EWHC 2511 (TCC)

The claimant (D) brought negligence proceedings against the defendant (R) a firm of architects, for refurbishment works.

In the draft claim form, D had referred to a loss of £35,894.00 allegedly caused by negligent misrepresentation on the part of R, who had been instructed on 27 October 2007.

The draft claim form and the fee were prepared up to a value of £50,000.00 and were received by the court on 25 October 2013, less than six years after the cause of action arose.

The proceedings were issued on 07 November 2013, after the expiry of the limitation period under the 1980 Act. When the documents were served in February 2014 it was claimed that remedial works had also been carried out in the sum of £431,305.00.

R applied to the court to amend their defence to include the defence of limitation.

The court considered three points.

1. The court’s discretion under the overriding objective, when considering an application to amend a statement of case.

i) The court would wish a real dispute between the parties to be adjudicated, provided that a substantial prejudice to the other party caused by the amendment could be compensated for in costs, and that there was no significant harm to public interest or the administration of justice.

ii) If R’s amendments could be said to have a real prospect of success, there would need to be substantial extraneous factors to prevent the issues they raised from being dealt with at trial.

2. The lack of statutory provision to the effect that issued proceedings were invalid or ineffective if the court issued them in the normal way, even if it accepted a fee which either was or became less than the proper fee for the claim.

i) Unless a claim was not included in or comprehended by the proceedings as issued, time stopped running once the claim form arrived at the court office with a request to issue and the appropriate fee.

ii) The fact that a claimant intended to bring a claim which could not be articulated or quantified at the time of issuing proceedings should not require payment of the fee that would have been payable if that claim had been articulated or quantified. An action had nevertheless been brought for the purposes of the act.

iii) In the absence of abusive behaviour, it was not to be determined by reference to claims which were articulated later, whether or not such later claims were ones which R intended to bring later at the time of issuing proceedings.

3. The proposed amendments did not distinguish between the period of 25 October 2013 when the documents were sent to the court and 7 November 2013 when they were issued, on the one hand, and 7 November 2013 onwards on the other.

i) The failure to differentiate was wrong in law.

ii) There was nothing to justify the conclusion that the failure to pay the correct fee when the proceedings were issued prevented the action from being brought on that day for the purposes of the act.

iii) D had paid the correct fee on 25 October 2013, therefore the amendment as drafted had no real prospect of success.

Application Disallowed.

Wall v Royal Bank of Scotland Plc [2016] EWHC 2460 (Comm)

The claimant (W) brought claims totalling approximately £700 million against the defendant bank (RBS). The claims arose from RBS’ dealings with a property group in insolvent litigation. W owned and controlled the parent company of the group and therefore claimed to be the assignee of its rights against RBS.

RBS sought to apply for an order for security for costs against any third party funder identified by the claimant on the basis that such a person had agreed to contribute towards W’s costs in return for a share of whatever he might recover in the proceedings.

W asserted that his potential liability for costs was covered by an ATE policy, therefore there would be no question of such an order and the information that RBS required was not required.

W submitted that an order to require him to produce this information was in breach of ECHR art 8.

Three points were considered in determining the outcome of the application:

1. There was an inherent power in r.25.14 to order W to identify his third party funder.

2. The CPR had to be given effect to in a way that was compatible with the fundamental rights and freedoms provided by the ECHR. W had embarked on a very high-value and public litigation that provided for disclosure of third party funder details, this took the identity of the funder outside the realm of W’s private life.

3. The size of the litigation and the lack of evidence as to W’s ability to fund it himself brought about an assumption that a third party must be funding the claim. The case therefore fell within the r25.14.

Application granted.

Other news

Civil Legal Aid

Sir Oliver Heald announced that the draft Civil Legal Aid (Merits Criteria) Amendment Regulations 2016 will broaden legal aid availability to include cases that have a 45-50% chance of success, but are of overwhelming individual importance or significant public interest.

Contrasting Medical Reports in RTA claims

LV permitted to bring committal proceedings against two Solicitors, after two contrasting medical reports were produced in an Road Traffic Accident claim which they were handling. The differences in the reports were described as ‘stark’ by her Hon. Judge Karen Walden-Smith.

Judges prepare profession for Online Dispute Resolution

In his key note speech at the annual Bar conference, Sir Ernest Ryder, speaking about the plans for a radical transformation of the courts and tribunals systems said the following:

“…we have and will continue to have the best justice system in the world. Our aim is to take the best of our existing system and transform it into something that will stand the test of time.”

“A digital world may be more effective and efficient, it may even be more accessible and proportionate, it will hopefully be swifter and more intelligible, but it does not provide a substitute for the sophisticated skills of the advocate or the litigator.”

Jackson tells lawyers and judges to be proactive on disclosure

LJ Jackson, speaking at the Law Society’s Commercial Litigation Conference 2016, advised that lawyers must “act against their own interests” and consider new forms of disclosure instead of automatically pursuing standard disclosure, such as technology assisted review software.

Government shelves personal injury reform

Members of Association of British Insurers have received an email from the director of general insurance policy, stating that the Government has decided not to proceed with its plans to increase the small claims limit for personal injury from £1,000.00 to £5,000.00 and remove the right to claim damages for low-value soft tissue injuries.

This briefing is correct as at 02 November 2016. It is intended as general guidance and is not a substitute for detailed advice in specific circumstances.

For more information contact

< Go back

Print Friendly and PDF
Subscribe to e-briefings