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Corporate claims bulletin

  • United Kingdom
  • Personal injury claims litigation

06-10-2014

Liability

Quantum

Other news

Liability

Hufford v Samsung Electronics (2014)

In 2007 the Claimant purchased a Samsung fridge freezer (the “Appliance”). On 1 January 2010 the Claimant arrived back to his house and discovered that there had been a fire.

The central issue in this case was whether or not the Appliance was defective within the meaning of section 3 of the Consumer Protection Act 1987 which states that “there is a defect in a product for the purposes of this Act if the safety of the product is not such as persons generally are entitled to expect; and for those purposes “safety”, in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury.”

The Claimant’s case was that because the Appliance caught fire in the course of its normal use, its safety was not such as persons were entitled to expect.

The Defendant’s case was that the fire originated outside the Appliance – from a cigarette that the Claimant had discarded.

In a claim brought under the 1987 Act, the Claimant simply needs to prove the existence of a defect in broad or general terms – he does not need specify or identify with accuracy or precision the defect in the product.

However, the burden of proof remains on the Claimant throughout the case – he needs to prove the existence of a defect, albeit unspecified, in the product, and that that defect caused the peril or accident which occurred, on the balance of probabilities.

The experts in this case:

  • Did not agree where the fire originated; the Claimant’s expert stated that it started inside the Appliance, in the machinery compartment at the rear, whilst the Defendant’s expert considered that the fire originated outside the Appliance, at its front.
  • Agreed that if the fire originated inside the machinery compartment, the most likely cause was an unidentified electrical fault with the Appliance, whilst if the fire originated in front of the Appliance, then the most likely cause of the fire was carelessly discarded smokers’ materials.
  • Confirmed that they could find no residual evidence of any causal defect within the components in the machinery compartment or elsewhere on the Appliance.

The Judge found that:

  • He accepted the joint opinion of the experts that there was a quantity of combustible material immediately outside the Appliance (a bag of rubbish), to the front of the Appliance.
  • He accepted the Defendant’s expert’s opinion that it was this material which ignited first.
  • He accepted that the location of the most severe damage was to the front of the Appliance, and thus not in the machinery compartment to the rear.
  • The Claimant was not an impressive witness – his recollection of the facts was at odds with the conclusions of the experts, in particular with regards to the conclusion of both experts that there was nothing in front of the freezer when he left the property.
  • The Claimant’s mother was also not an impressive witness – she was asked whether she recalled seeing an ashtray in front of the fridge freezer to which she replied no, but the photos of the accident clearly showed that there was an ashtray left on top of the work surface which was close to the front of the Appliance.
  • There was nothing wrong with the Appliance before the incident in question.
  • The experts’ finding that there was no evidence of a defect on the Appliance was also accepted.

Taking into account the above, and predominantly the fact that there was no direct witness evidence from anyone who saw the fire at any point, the Judge found that the Claimant had not proved that the cause of the fire was from the Appliance (despite the fire report from the Fire Service being that the cause was the Appliance. The Fire Service report was not deemed to be an opinion derived from any forensic investigation into the cause).

The Claimant had therefore not discharged the burden of proof which rested upon him to prove that there was a defect in the Appliance and that the origin of the fire was from the rear of the Appliance as he alleged.

The claim failed.

Quantum

Reaney v University Hospital of North Staffordshire NHS Trust and another (2014)

On the 30 December 2008 at the age of 67, the Claimant experienced a sudden onset of back pain with weakness in her legs.

She was admitted to the A & E Department of Stafford Hospital and following an MRI was transferred to North Staffordshire Royal Infirmary the same day having been diagnosed with transverse myelitis.

This is a rare inflammatory condition causing damage to the spinal cord which arose spontaneously in the Claimant’s case, and unfortunately rendered her paralysed below the mid thoracic level permanently.

As a result of an extended period of hospitalisation, the Claimant developed a number of deep pressure sores which led to infection of the bone marrow, shortening of the muscle tissue in her legs and a hip dislocation.

The Claimant was always to be confined to a wheelchair for the rest of her life, but the issue in this case was to what extent the pressure sores and the consequences of those pressure sores made her condition worse than it would have been but for their development, and what damages should be paid as a result, in particular in respect of care.

The Defendants accepted liability for the development of the pressure sores.

The Claimant had a past medical history of smoking, asthma, obesity, breathlessness and she had a history of problems with her neck and left shoulder.

As a result of this history, the Defendant’s case was that the Claimant would not have been able to transfer herself from bed to a wheelchair, even if she hadn’t developed the pressure sores. The Claimant’s expert disagreed with this view and stated that but for the pressure sores, the Claimant would have been able to transfer herself for at least a period of time (up to the age of 70).

The Court found from the Claimant’s medical records that at the time of her admission to hospital, she did not have any ongoing left shoulder problems such that she could have managed independent transfers, but for the development of the pressure sores. The records also suggested that the Claimant herself was keen to improve and for treatment so that she could be as independent as possible despite her condition.

Therefore, having considered the evidence, the Court found that but for the negligently developed pressure sores, the Claimant would have had a much better quality of life – she would have spent her waking hours out of bed in a wheelchair which she would have been able to self propel. She would have been able to undertake a few basic household tasks, get out and about, and her bowel and bladder management would have been better. The Court rejected the argument that but for the pressure sores, the Claimant would have required a carer 24/7 in any event.

Both medical experts however recognised that as the Claimant aged, her need for care would have increased.

As a result of the pressure sores and the consequent shortening of the muscle tissues, the Claimant was left in a “windswept” position – she falls to the left if unattended. The Claimant requires 24 hours care. She can sit in a  wheelchair for four hours at the most, and needs to be repositioned in the night,

The Court was of the view that but for the pressure sores, the Claimant would have required no more than 7 hours of care per week up until the age of 70 thereafter she would have received gradually increasing visits from one local authority carer.

This case emphasised the  principle that a tortfeasor must take his victim as he finds them – the court awarded full compensation for the worsened condition of the Claimant. In this case, the Defendant’s negligence had made the Claimant’s position materially and significantly worse than it would have been but for that negligence. She wouldn’t have required the significant care package that she now requires.

PSLA was awarded at £115k.

The parties had sought guidance as to how quantum should be considered based upon the “but for” scenarios advanced by each side, and the other heads of damage were left outstanding to be decided amongst the parties pending this decision of the Court.

Other News

Social action, responsibility and heroism bill

Introduced in the House of Commons on the 12 June 2014 and expected to be granted Royal Assent by the end of the parliamentary session in early 2015.

The bill has been developed in response to concerns that people may be put off from taking part in voluntary activities, helping others, or intervening in emergencies due to worries about risk and liability. It is also being introduced with a view that Courts will take account of people such as employers who have been taking a responsible approach towards the safety of others during an activity, and something goes wrong.

The bill therefore contains measures to reassure people that if something goes wrong whilst they are acting for the benefit of society, intervening in an emergency or generally being responsible when it comes to the safety of others, and they are then sued for negligence, full account of the context of their actions will be considered.

The bill however does not tell the court what conclusion they should reach, and it doesn’t prevent a person being found liable, but is intended to send a strong message that the courts will consider the context of the Defendant’s actions before reaching a conclusion on liability.

The idea is that Claimants will be slightly less likely to pursue a case against somebody who had been acting for the benefit of society, intervening in an emergency or adopting a generally responsible approach towards the safety of others in the course of the activity during which the negligence occurred.

Further delays to review of personal injury discount rate

The Ministry of Justice is delaying the review of the discount rate for personal injury cases, again, according to APIL.

The delays are being caused by a decision of the Lord Chancellor to recruit a panel of experts to consider the position and provide investment advice.

A decision may be made by April 2015.

For more information contact

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