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Corporate Claims Bulletin October 2017

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

17-11-2017

Liability

Baker v British Gas Services (Commercial) Limited [2017] EWHC 

The claimant was employed by the first defendant as an electrician. He was injured whilst replacing a lamp, due to a fault in the way the lamps had been wired up by the second defendant some years earlier. Prior to his employment with the first defendant the claimant had been employed by a company (C), who was responsible for carrying out inspections of the wiring in the premises. Prior to the accident the claimant’s employment with C was transferred to the first defendant under TUPE.

C sought to argue that any failing on their part to identify the original fault in the wiring during their inspections had passed to the first defendant under TUPE. The first defendant argued that although liability for personal injury which occurred prior to the transfer of employment passed to the new employer, liability did not arise where the breach occurred prior to the transfer, but the injury arose only after it.

The court rejected this argument, describing it as a fundamental misunderstanding of the Regulations. It found the first defendant was liable to the claimant on the basis of C’s failure to identify and remedy the defects to the wiring on its inspections.

Johnson v University of Bristol

The claimant (who was employed as a carpenter) attended a self-catering student flat to repair part of a kitchen unit. As he opened the door of the unit it collapsed and utensils fell out injuring him. The claimant argued that the kitchen cupboard was 'work equipment' within the meaning of the Provision and Use of Work Equipment Regulations and the flat was classed as a 'workplace' under The Workplace (Health, Safety and Welfare) Regulations.

The defendant, the claimant's employer, provided student accomodation and maintained it.

The Court of Appeal found that the defendant did not supply the kitchen unit to its workforce as equipment, nor did they have to use it in the course of their employment other than to occasionally repair it. Working on an item to repair it did not make that item 'work equipment' under the terms of the Regulations.

Fletcher v Keatley [2017] EWCA

The claimant was injured in an RTA in 2007 and sustained a head injury. The first instance judge found that the respondent had suffered Post Concessional Cyndrome until the end of 2009 and between 2009 and 2014 suffered a somatiform disorder which was non deliberate. He also found however, that from 2009 onwards there was a degree of deliberate exaggeration of symptoms and a failure to cooperate with medical tests.

This failure to cooperate delayed his recovery which would otherwise have occurred by the end of 2013. The judge reduced his general damages by 50% and his loss of earnings by 40%. He commented that he did not reduce this further because the deliberate behaviour had not started until 2009.

The defendant appealed on the basis that the reductions were not sufficient and that the claim for damages post 2008 should have been struck out in its entirety, due to the claimant’s deliberate exaggeration.

The Court of Appeal found that the judge had reached an entirely proper conclusion. He had considered and followed Summers v Fairclough Homes Limited and had accepted that the claimant has suffered some genuine adverse consequences between 2009 and 2013. On that basis the solution he had reached was necessarily pragmatic, but also correct.

Armes v Nottinghamshire County Council [2017] UKSC

The claimant was a former foster child who appealed against a decision that the local authority were not liable for the abuse that she had suffered at the hands of her foster carers. It was agreed that the local authority had not been negligent in the selection or supervision of the foster carers.

The issue before the Court of Appeal was whether the local authority owed a non-delegable duty of care to the claimant or whether they were vicariously liable for acts of the foster carers.

The Court of Appeal concluded that to place a non-delegable duty of care upon a local authority was too onerous a burden in these circumstances. A local authority had to balance competing demands, including those of acting in the child’s best interests. Those interests may mean keeping a child with his family. It was unreasonable then to impose a duty on the local authority that would make them liable for any failure on the part of those persons.

They did however, find that a local authority could be liable for the torts committed by its foster carers. The abuse was committed by the foster carers in the course of an activity carried out for the benefit of the local authority. The local authority’s placement of children in the care of the foster parents put the children into a situation where close control could not be exercised by the local authority, thus rendering the children vulnerable to abuse. The local authority also exercised a significant degree of control including powers of approval, inspection, supervision and removal. Finally, and perhaps most compellingly, most foster parents simply would have insufficient means to meet a substantial award of damages. The local authorities however did have the means to meet such an award.

Tinsley v Manchester City Council [2017] EWCA

The claimant had been involved in a road traffic accident in 1998. As a result of his injuries he had developed a personality disorder and was detained under the Mental Health Act. During this time he brought a personal injury claim against the other driver and received substantial damages including £2.89 million for future care costs.

When he eventually left a local authority nursing home, his accommodation and care were paid for from his personal injury damages for a period of time.

There were concerns however, at the cost of doing so. His deputy, appointed by the Court of Protection, brought an action against the local authority requiring it to comply with its duty to provide ongoing care under Section 117 of the Mental Health Act 1983.

The local authority refused to provide care on the basis that:

1. It was not required to do so if the claimant had been awarded damages for future care;

2. To allow such a claim would be to allow for double recovery.

The Court of Appeal held that the local authority was not entitled to take into account the fact that the claimant had been awarded substantial personal injury damages when assessing the claimants needs for ongoing care, in order to discharge its duty under Section 117 of the Mental Health Act 1983. The court found that there was no suggestion that at the time of bringing the claim that the claimant did not genuinely believe that he would fund his ongoing care himself rather than rely upon the state.

In relation to the issue of double recovery, the court drew a distinction between a situation where a claimant at trial accepted that he would seek to rely on local authority funded care, in which case he would not be entitled to recover the cost of private provision from the defendant. However, the court also held that the fact that the claimant had recovered damages for private care did not preclude him from subsequently making an application for local authority provision.

Practice and Procedure

Adebolajo v The Ministry of Justice [2017] QBD

The claimant was an Islamist extremist who murdered fusilier Lee Rigby.  He was bringing a personal injury action against certain prison officers and the Ministry of Justice.  The prison officers applied for and were granted anonymity and the right to give their evidence from behind a screen.

The application for anonymity was made under the ECHR and common law.  Under the ECHR, anonymity could be granted where there was a risk to life or a risk of a serious injury under Article 2 or Article 3.  The risk had to be real and immediate.

At common law, the bar was set lower and an order could be granted where a party feared he might be put at risk if his identity was revealed and where it was in the public interest to do so as refusing the order may prevent him doing his job.

Here, there was no evidence of a real (as opposed to a merely hypothetical)  to the officers and therefore the application under the ECHR was turned down.

The application relying on the common law was, however, granted.  The officers’ evidence was that they were in fear and there was clear evidence that they were suffering from stress with some of them taking anti depressants.  The court held that the officers should be allowed to give their evidence without fear and in the circumstances there was little or no disadvantage to justice as the claimant’s case would not be adversely affected by the anonymity of the defendants.

Although there was a general principle that justice should be open, in this case the court held that the identities of the officers concerned was not vital and that the balance was in favour of granting their application.

Miley v Friend Life Limited [2017] EWHC

The claimant was employed by an investment bank and had the benefit of an income protection insurance policy that became payable if he was “unable because of illness or injury to perform the material and substantial duties of his employment”.

In 2009 the claimant claimed that he developed chronic fatigue syndrome and was unable to carry on with his job.  His claim under the policy was allowed but payments were stopped four years later when the insurance company alleged that he had misrepresented his condition or exaggerated his symptoms. The claimant sued for the unpaid monies and the defendant counter-sued for the return of the insurance monies that had already been paid across.

The defendant called a number of witnesses to show that the claimant had lied about his condition and income, as well as surveillance evidence showing the claimant riding a bike, going out in his car, shopping, attending his daughter’s nativity play and going to the pub. All of which were inconsistent with his alleged condition.

Chronic Fatigue Syndrome represents a particular challenge in these circumstances as it is a diagnosis that arises from the exclusion of all available alternative diagnoses.  If there was no other explanation for the claimant’s symptoms then the diagnosis of CFS is made.

The defendant relied upon discrepancies between what the claimant said he could do and specific examples of what he actually did do.  It also relied upon surveillance evidence.  The court concluded however that there was insufficient evidence to establish that the claimant was dishonest or deliberately committing fraud.  The surveillance evidence in particular fell short of showing that the claimant was lying about his levels of disability.  It lacked clear contradiction between what the surveillance evidence showed him capable of and what the claimant said he could do.

The court also attached weight to the claimant’s witnesses, finding that it was improbable that they were the victims of a prolonged and persistent deceit on his part.  The defendant had not been able to bring any evidence to undermine the claimant’s witnesses directly or establish that they were lying on any specific point. Further, the court found the claimant’s expert witness more convincing, commenting that the defendant’s expert had been slow to make concessions where he thought such a concession would have supported the claimant’s case.

In conclusion, the court found that the claimant had discharged the burden of demonstrating that he was suffering from CFS and unfit for work and that his own assessment of his disability was not substantially worse than the objective evidence in relation to it.

Costs

Trehan v Liverpool Victoria Insurance Company Limited

A personal injury claim was referred to the claimant’s solicitors by the claimant’s claims company. The solicitors corresponded with the claims company to obtain the claimant’s signature on the particulars of claim etc.  The case did not settle and the date was set for trial.  The first time his solicitors spoke to the claimant was to tell him he was required to attend trial.  The claimant, who believed that the claims company was dealing with the claim and knew nothing about the litigation, did not attend trial.  As a result judgement was entered against him together with a cost order.

The claimant applied to set the cost order aside on the basis that he knew nothing about the litigation. Handwriting analysis indicated that the document signed on behalf of the claimant had had their signatures forged.  The claims company alleged that the man who had attended their offices to sign the documents must have been an imposter.  The solicitors sought an indemnity from the claims company.

The claimant said that he knew nothing about the litigation and in fact had told the claims company to drop the case some months earlier. The court found that the claims company had forged the claimant’s signature on ten documents including particulars of claim, witness statement and schedule of loss.  The director of the claims company was aware of this practice and endorsed it.  His suggestion that an imposter had attended his office to sign the documents were incredible.

Additionally, the claims director’s wife was a director of the medical company which had examined the claimant and the claims director himself ran the company that provided physiotherapy after the accident.

The court concluded that although non-party cost orders under Rule 46.2 were exceptional and generally required more than simply funding the litigation, here, the forging of documents and running a proceeding for personal gain justified the making of a non-party cost order against the third defendant. The court rejected the solicitor’s claim for indemnity.  They had failed to obtain any authority or any funding arrangement and were in breach of the money laundering regulations in that they had no evidence of the client’s identity.  They were described as improper, unreasonable and negligent in entering into litigation in those circumstances.

The court commented that although they had been deceived by the claims director, had they acted properly that would not have happened. In addition, they had deliberately dated letters incorrectly to disguise non-compliance with directions and to commence and continue litigation in the claimant’s name without any direct contact with him was appalling.  As a consequence they too were found liable for the costs of the action.

Whalley v Advantage Insurance Company Limited

The claimant sought to argue that she was entitled to assess costs (in addition to the FRC’s) incurred during the period of late acceptance.

It was agreed between the parties prior to the hearing that the claimant would not pursue indemnity costs. The court held that the claimant was not entitled to assessment of her costs for the period of late acceptance of the offer.

The fixed cost regime applied to the entire claim, Part 36 was a self-contained code but was silent as to the issue of costs arising following late acceptance of a Part 36 offer under the RTA protocol.  This silence meant that the costs in those circumstances were determined under the fixed costs regime and not by assessment.

This judgement contradicts and overturns Sutherland v Khan which held that the late acceptance of a Part 36 offer automatically entitled the claimant to an award of indemnity costs and allowed the claimant to escape the fixed cost regime.

The judgement is likely to have some force as it was heard by regional costs judge Besford who had also given the judgement in Sutherland itself.  He described that earlier judgement as “unsupported and [it] can no longer stand”.

Howlett v Davies [2017] EWCA

The claimants sought damages for personal injury and losses suffered as a result of a road traffic accident whilst passengers in the defendant’s car.  The insurers at first instance made no admissions as to the fact of the accident happening and credibility of the claimants was put in issue although no positive pleading of fraud was made.

The Court of Appeal held that it was not necessary in all circumstances for a defendant to plead fraud or dishonesty.  A failure to do so would not bar a judge from finding a witness to have been lying. The claimant did however, have to have been given adequate warning of the possibility of such a conclusion and an opportunity to deal with it.

In those circumstances whether or not a specific allegation of fundamental dishonesty had been made in the defence, a judge was entitled to find that there had been such fundamental dishonesty and at that point the insurer could invoke CPR 46.16(1) and overturn the presumption of qualified one way cost shifting.

Pollard v University Hospital of North Midlands NHS Trust [2017]

The claimant brought a personal injury action against the defendant as a result of slipping in a car park.  She entered into an ATE insurance policy which provided for indemnity cover up to £100,000, the cost of which was also £100,000. She succeeded in her case but the defendants argued that the ATE premium was too high and at first instance it was reduced from £100,000 to £18,000.

The Claimants appealed.

The court concluded that the judge had erred in reducing the premium in the way he had.  There had been no material put before the judge as to the availability of any other policy which was suitable and in those circumstances, finding the premium to be too high on instinct and then reducing it on a broad brush basis was wrong.  The case was remitted for reassessment.

In order to challenge an ATE premium, evidence should be obtained in respect of other comparable insurance available at the time the policy was taken out.  Effectively, an exercise akin to the credit hire comparisons needs to be undertaken.

Other News

CUE Database

The claimants and the underwriting exchange has been extended to include data on holiday illness claims.

This will mean that a cue search will now reveal the claimant’s travel claims history and is a response to the increasing concern about the amount of fraud occurring in holiday illness claims.

Small Claims Limited for PI Cases

The Justice Secretary, David Lidington has confirmed that the small claims limit for RTA cases will rise to £5,000 – “as they are not cases where people should usually need a lawyer” – and the limit for other personal injury cases will rise to £2,000.

The thinking behind the higher limit for RTA cases appears to be the provenance of such claims and the cost of contesting and settling the claims leading to increases in motor insurance premiums. 

To go along with these increases there will be a fixed tariff of damages and some more straight forward way to obtain medical evidence to support the claim with a view to people acting on their own behalf rather than using lawyers.

Periodical Payments Order and Mesothelioma

An insurer has agreed to cover the future costs of mesothelioma treatment by way of a deferred PPO for the first time.

The PPO agreement that was reached between the anonymous parties will not operate until his treating doctors advise that he should receive immunotherapy treatment. Once the order was triggered the insurer would commence quarterly payments at a rate that assumed the most expensive treatment option.  As the treatment progressed the actual cost would be calculated and any excess refunded by the claimant.

The agreed terms of the PPO allowed for the payments to change to match any developments in treatment or new drugs that were recommended. The treatments that were covered would not ordinarily have been available on the NHS and it is a developing area of medicine so it was not possible to be specific about the future costs.

The effect of the PPO was to avoid delaying settlement of the claim or uncertainty in relation to the costs of future treatment.  This is an avenue that may be pursued more frequently in relation to future treatment costs in development areas of medicine.

For more information contact

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