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Corporate Claims Bulletin - September 2015

  • United Kingdom
  • Personal injury claims litigation - Claims e-briefing

23-09-2015

Liability

Thomas Edward Bartlett v English Cricket Board Association of Cricket Officials (2015)

The claimant was captain of a cricket team who had decided to call off the match because of heavy rainfall, which he considered had made the pitch unsafe. The opposing team captain, who wished play to continue, insisted that the match umpires inspect the ground and make the overall decision. The umpires had carried out a thorough and careful ground inspection, with the players' safety a primary consideration. The umpires considered that it was not dangerous or unreasonable for play to take place. Play continued and the claimant used a sliding technique to stop the ball. In doing so, he injured his knee and held the cricket umpires responsible for their decision to let play continue. The claimant’s knee injury lasted around eight weeks. The cricket association relied on the defence of ‘volenti non fit injuria’ in that the player had chosen to play and to undertake the sliding stop on a ground he considered to be unsafe.

HELD: It was an established principle that cricket umpires owed a duty of care to the players involved in the game over which they officiated. The fact that grass in a cricket ground was wet and slippery did not mean that the ground conditions were dangerous, as a match could be played safely even when conditions were not ideal. The claimant, who was right-handed, had carried out the sliding stop incorrectly by leading with his left leg instead of his right. The condition of the ground was not the cause or a material contributing factor of the claimant’s injury, but rather his incorrect use of sliding stop fielding technique.

Milroy v British Telecommunications Plc [2015]

An engineer employed by the defendant telecommunications company claimed damages for breach of statutory duty following an accident at work at the end of August 2009. The engineer suffered personal injury after coming into contact with a high power voltage line.

The engineer operated a ‘cherry picker’ or platform on the rear of a work van, which enabled access to high-level telephone lines. The engineer qualified as a platform operator in 2003. Until early 2009, each platform was manned by two trained operators, one in the bucket and the other providing ground support. From early 2009 onwards, the system changed and platforms were manned by a single trained operator with ground support from an engineer who was not platform-trained.

On the day of the incident, the claimant engineer was called out by a site engineer who needed access to a carrier pole. The site engineer, who was not platform-trained, got in the bucket with him rather than providing ground support.

The distance between the bucket position at the top of the pole and the electricity cable was some 4m. The engineer came into contact with the power line after moving the bucket in response to a request from a lady on a horse who needed to get past, however the precise mechanics of the incident are unclear.

The engineer's case was that his employer failed to provide a safe system of work because it was in breach of the Provision and Use of Work Equipment Regulations 1998. He also alleged that the company was vicariously liable for ground support failings by the site engineer. The employer disputed liability and contended it had provided sufficient training and that its guidance in relation to working near high power voltage lines specified a 2m clearance distance, which the engineer had breached.

HELD: Judgment for claimant. The provision of inadequate training was a breach of the Provision and Use of Work Equipment Regulations, specifically 9(1), and was a significant cause of the accident. The site engineer was also in breach of his duty to the claimant engineer for a number of reasons, including the fact that he got into the bucket instead of remaining on the ground. Those breaches were a substantial cause of the accident and the employer was vicariously liable for them.

Determining liability involved examining the detail of the engineer's training in 2003. After the training day, employees had been given a file of manuals. One contained a short paragraph about working in the vicinity of power and the 2m clearance.

There was no evidence that the relevant paragraph had been drawn to the engineer's attention. His understanding from his training was that he should not go within the area of a notional 2m diameter from any high voltage power line. That amount of clearance was not enough to safeguard against the risk of serious injury or death.

The employer contended that the 2m clearance was supposed to be horizontal, but that was not clear from the training documentation. In 2007, the employer changed its guidance to ‘clarify’ that point. The claimant engineer displayed a lack of care in moving the bucket so close to the power line and in allowing the site engineer into the bucket with him. The engineer’s contribution was assessed at one third.

NOTE:

Many organisations have embraced technology and provide training to their employees electronically.

This case is a reminder that electronic training may not be appropriate in all cases. Clients are advised to review the content of their electronic training, high risk activities and consider delivering training in these areas in person.

Quantum

BM (Executrix of the Estate of AM, Deceased) v Somerset Care Ltd (2014)

The claimant, a 79-year-old woman, received £35,000 after her husband died having suffered a fall in July 2011 whilst in the defendant's residential care home.  

The deceased had suffered a stroke in March 2008 which left him paralysed down the right hand side of his body. He required on-going care and in June 2011, the deceased attended a residential care home operated by the defendant for respite care. Whilst being washed and d`ressed by carers at the home on 16 July 2011, the deceased suffered a fall and was taken by ambulance to hospital. He underwent an x-ray which confirmed a fracture to the neck of his femur.

The deceased underwent a partial hip replacement on 18 July 2011. Shortly after his operation the deceased began to deteriorate. First he contracted a UTI and high temperature. The deceased was then diagnosed with the ESBL infection on 5 August 2011. An ESBL infection (extended spectrum beta lactamase) produces species of bacteria which destroy one or more antibiotics. The deceased was given antibiotics to treat the ESBL infection which failed to work. The Liverpool Care Pathway, palliative care for dying patients, was put in place on 16 August 2011. The deceased died on 27 August 2011. The deceased’s death certificate listed numerous causes of death, chief amongst which were infection and the fractured neck of the femur.

The claimant brought an action against the Care Home alleging that it was negligent. The deceased had been incorrectly recorded as a ‘medium risk’ of a fall. The deceased had previously suffered fits and the Care Home had subsequently failed to implement a specific fall intervention plan.

Liability was admitted.

It was conceded that the fracture to the neck of the deceased’s femur, as a result of the fall, had triggered a chain of events that caused him to contract the ESBL infection, which ultimately caused his death.

Settlement out of court: £35,000 total damages:-

Pain, suffering and loss of amenity: £10,000.

Special damages

Bereavement damages: £11,800

Loss of pension: £8,200

Funeral expenses: £5,000

Cost and Procedures

Clinical negligence claims of up to £250,000 could be subject to fixed fees under plans being considered by the government. Previously it has been assumed that fixed recoverable costs would be applied to cases up to £100,000 damages, as the government seeks to reduce spending on clinical negligence claims. It has also emerged the government envisages that fixed fees will be introduced in October 2016, subject to a consultation opening later this year.

Other news

Data suggests that 7,500 more whiplash claims per month are being submitted than in 2014, despite the number of road accidents remaining almost static. This has lead insurers to suggest that unscrupulous claims management firms, lawyers and doctors have discovered loopholes in laws that were designed to prevent fraudulent claims.

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