Global menu

Our global pages

Close

Corporate Claims Bulletin - September

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

23-10-2018

LIABILITY

Lewis v (1) Tindale & (2) MIB (3) Secretary of State for Transport [2018] EWHC 2376 (QB)

This case arises after Mr Lewis was struck by Mr Tindale in an uninsured 4x4 whilst walking on private land. Mr Tindale suspected that Mr Lewis was stealing metal at the time.

Mr Tindale was debarred from defending the claim. There were three questions for the Court to decide:

  1. Whether the liability owed by Mr Tindale to Mr Lewis was required to be insured against under the Road Traffic Act 1988;
  2. If not, whether the MIB is otherwise obliged to satisfy any judgment under EU Law;
  3. Whether the provisions of the EU directive have direct effect against the MIB.

It was held that none of the defendants were liable under the RTA 1988 as the collision had occurred on private land and not on a road. The MIB was also not liable under the Uninsured Drivers Agreements.

However, the Court held that the MIB is an emanation of the state and is, therefore, bound by the Motors Insurance Directives. As a result, it has an obligation to the claimant and is liable for off road accidents. Damages are yet to be decided but the MIB’s potential exposure is up to €1,000,000.

This decision is being appealed by the MIB.


Wiseman v Overhead Doors (Great Britain) Ltd

This case arose after the claimant suffered noise induced hearing loss whilst working as a sheet metalworker in the 1970’s and 80’s.

The claimant was able to establish breach of duty against the three defendants and that a proportion of his hearing loss was attributable to the noise to which he had been exposed to during the course of his employment.

This only left the question of whether the level of hearing loss suffered was enough to warrant an award. 

Prior to the trial, the medical experts for the claimant and defendant were in disagreement over the level of noise induced hearing loss. The claimant’s expert considered it be 8.3dB in contrast to the defendant’s expert who considered the loss suffered was 3.2dB.

At trial, the claimant’s expert conceded that the defendant’s expert was correct and the remainder of the hearing loss was constitutional in nature. This meant that the noise induced hearing loss was negligible. The defendant’s expert described it as too small to be noticeable.

The judge concluded that the claimant was not materially worse off than he would have been if he had not been exposed to noise. As there was no noticeable loss of hearing as a result of the exposure, the claim was dismissed.


PROCEDURE

Serious Fraud Office v Eurasian Natural Resources [2018] EWCA Civ 2006

This case involved the disclosure of documents relating to fraudulent practices allegedly committed in foreign jurisdictions, including interview notes made by ENRC’s solicitors involving employees and former employees. At first instance, the SFO was granted declarations that these documents were not subject to litigation privilege.

The Court of appeal considered numerous issues in reaching their judgment in respect of litigation privilege and legal advice privilege.

In terms of litigation privilege, the Court of Appeal held that the litigation was in reasonable contemplation of the defendant at least 3 months prior to the documents being created. This in fact formed the basis of the relationship between the parties. 

It was also held that the need to investigate the facts was only a “subset” of the defence and not an entirely separate purpose, therefore, still making the contemplation of litigation the dominant purpose.

The Court of Appeal declined to answer several questions relating to legal advice privilege and left these matters for the Supreme Court in some appropriate later case. This was on the basis that it had already established that the documents were privileged and the first instance decision should be overturned.

Key Points

  1. “Legal advice given so as to head off, avoid or settle reasonably contemplated proceedings is as much protected by litigation privilege as advice given for the purpose of resisting or defending such contemplated proceedings”;
  2. A corporation should be at liberty to ask its lawyers to obtain the information that it needs from its employees under the protection of legal advice privilege;
  3. This decision restores the law to its position before the High Court decision and clarifies the above points in relation to litigation privilege.

Sajid v Nuur (2018)

This unreported appeal case arose after the claimant landlord served his former tenant with a claim form at an address where he knew the defendant no longer resided. It was heard in the Central London County Court.

By way of background, the tenant had initially brought a claim against his landlord for disrepair. The landlord made a counterclaim for rent arrears but this was struck out for paying the incorrect court fee. The tenant made an application to have the second action struck out on the basis that the second action was an abuse of process, however, this action was unsuccessful.

In terms of service, the landlord knew that the claimant was no longer residing at the property (he had left 2 years prior to attempted service) but alleged that he was entitled to serve him there as it was his last known address under CPR 6.9. However, under 6.9(3), he must have taken reasonable steps to ascertain the current address and considered alternative means of service under 6.9(4).

Of relevance here, the landlord knew who the solicitors were that were acting for the tenant (albeit they were not instructed to accept service) and knew the telephone number of the tenant’s daughter as he had communicated with the tenant via this number before.

The court held that the service was defective. They went on to say that the landlord should have done one of the following:

  1. Made an application for alternative service on the tenant’s solicitors;
  2. Sought a notification order involving a text message to the tenant’s daughter to say that the claim form had been issued and a copy could be collected from his solicitor’s office.

Caribonum Pension Trustee Limited (as trustee of the Caribonum Pension Scheme) v Pelikan Hardcopy Production AG [2018] EWHC 2321

This was a High Court decision relating to the claimant’s application for summary judgment under CPR 24 i.e. the defendant has no real prospect of successfully defending the claim and there is no other compelling reason why it should be disposed of at trial.

The facts of this case are not relevant. However, in resisting the application, the defendant sought to convince the Court that it did have a real prospect of defending the claim (by relying on argument that it had not pleaded in its defence) and that the claim was an abuse of process in any event as the defendant was in liquidation and did not have the means to pay any judgment.

Firstly, the court held that, as the defendant had not pleaded the points on which it relied, it should be sufficient for the claimant to succeed in establishing that the defendant had no real prospect. However, it did consider the points on the merits in any event.

Secondly, it was held that despite the claimant knowing that the judgment could not be satisfied and making the claim purely with the intention of the parent company perhaps deciding to support its subsidiary was not an abuse of process. If the claimant had a valid claim, it was perfectly entitled to bring it.


Playboy Club London Ltd v Banca Nazionale Del Lavoro [2018] EWCA Civ 2025

This claim arises after the claimant brought a second action against the defendant (in deceit) after the first action in negligence was unsuccessful because it was found that the defendant did not owe the claimant a duty of care.

Again, the facts are not relevant, however, the defendant made an application that the claim should be struck out on the basis that it was an abuse of process to bring the second action after the trial of the first and it should have been brought at the same time. The claimant argued that, based on the evidence it had before the trial of the negligence claim, any claim for deceit would have been weak. It was evidence at the trial that strengthened the claimant’s case.

At first instance, the defendant’s application was successful and the claim for deceit was struck out. The claimant appealed the decision and the Court of Appeal overturned it.

It was held that there was no manifest unfairness to the defendant in allowing the claimant to pursue the deceit claim and, in accordance with the overriding objective, the claimant should be permitted to proceed with the claim.


Costs

Ketchion v McEwan (2018)

This case arises out of a Road Traffic Accident. Following the refusal of the claimant’s permission to appeal, HHJ Freedman ruled that the defendant, who was unsuccessful and also unsuccessful in his Part 20 personal injury counterclaim against the claimant, was entitled to the benefit of qualified one-way costs shifting (QOCS) and the term “proceedings” in CPR 44.13 includes both claim and counterclaim.

The judge in this case delayed handing down his decision until judgment in Cartwright v Venduct Engineering Ltd [2018] EWCA Civ 1654 was given. He noted that, until Cartwright, it was possible to divide “proceedings” into two; a claim and a Part 20 claim. However, once the judgment in Cartwright was given, he was focused on concluding that “proceedings” must be given a wider definition and interpreted as referring to a Part 20 claim, so long as the same facts arise from the primary claim.

No real difference can be drawn from proceedings brought by a claimant and proceedings brought by a Part 20 claimant in the same case if they arise out of the same facts. QOCS will now apply to the whole of the action.

Following this case there has been much discussion regarding whether insurers will treat it as an incentive to encourage defendants to bring their own PI claims, even if they are forged, would enable them to avoid having to pay costs.


Quantum

JJ v Lewisham And Greenwich NHS Trust (2018)

In November 2013, the 71 year-old claimant was taken by ambulance to the defendant trust after falling down concrete steps and experiencing a tearing sensation in her torso. After an X-Ray was taken of the lower chest, she was incorrectly diagnosed as suffering from a cracked rib. No neurological examinations were performed and the claimant was discharged and sent home by taxi after being prescribed co-codamol and tramadol for pain relief.

Throughout the following two weeks the claimant continued to take the pain killers and waited for the rib to heal. She was in significant pain and this affected her sleep and mobility. The claimant began to lose sensation when wiping herself after the toilet and her legs collapsed beneath her when walking from the toilet. She was again taken to the defendant trust after her husband called an ambulance.

The defendant trust diagnosed the claimant as suffering cardiac failure and uncontrolled arterial fibrillation secondary to non-compliance of medication. No neurological examinations were performed.

18 days after the initial accident the claimant underwent an MRI scan and she was informed she had sustained a fracture which was causing compression of the spinal cord. The claimant was also found to have bone deconstruction at T10/11 and severe cord compression at the same level. The claimant remained an inpatient at the defendants trust and underwent surgery.

The claimant became classified as a T10 ASIA A Paraplegic. Her injuries were noted to be severe, lifelong and impacted upon her ability to mobilise and undertake activities of daily living. The claimant’s injuries led her to be wheelchair dependant, lose independence, suffer from bowel and bladder dysfunction and to require multi-disciplinary support. Her injuries and symptoms were permanent and her life expectancy was reduced to 81.

The claimant brought an action against the defendant claiming that it was negligent in failing to identify and arrange for spinal stabilisation surgery when she first attended A&E.

The defendant denied liability. The defendant accepted that at the claimant’s initial trip to A&E she should have been admitted for further medical investigations to be carried out but claimed that such procedures would have been limited to rehydration via a drip and that the claimant would have been discharged the following morning without further radiological examinations being performed nevertheless. The defendant maintained that in any event there was no justification to carry out a CT examination in the absence of a complaint of midline back pain.

Despite the defendant’s initial denial of liability, the claimant accepted offers on an 80% liability basis.

The claimant was awarded £230,000 plus interest for PSLA and £1,350,000 for miscellaneous future costs including care, case management, therapies, equipment, assistive technology, accommodation, transport and medical treatment. The claimant was also awarded £86,000 for past special damages, which include care, aids, equipment, household expenditure, travel and assistance.


LY v Frimley Health NHS Foundation Trust (2018)

In July 2013, the 43 year old claimant underwent a transobturator procedure at a hospital of the defendant trust to treat her urinary incontinence. The claimant had a spinal anaesthetic rather than a general anaesthetic. The anaesthetist made two attempts to insert the needle and on both occasions the claimant was in extreme pain. Due to this the claimant consequently had a general anaesthetic and the operation was performed without any adverse consequences. When the claimant woke up she felt extreme pain and had weakness in the lower limbs and it was discovered that she had suffered a severe neurological injury to the spinal cord

As a result the claimant suffered T10 ASIA Paraplegic. She was in constant pain, her sleep was severely affected and she was not able to move independently. The claimant’s injuries were permanent and the medical experts agreed for her to have a powered wheelchair. Her life expectancy has been reduced by six years and was agreed at age 82. There was a risk that she would suffer from further neurological deterioration if a syrinx (a spinal cord cavity) which was shown on the MRI scan, enlarged causing further permanent destruction to the spinal cord.

The case settled for an out of court settlement figure of £2,449,523. General damages PSLA settled for £175,000. Miscellaneous future costs including care, case management, therapies, equipment, accommodation, transport, loss of earnings, medical treatment was settled for £2,196,000. Special damages included past care costs, medical treatment costs, aids and equipment costs, household expenditure, travel and transport costs, subsistence and loss of earnings settled for £78,500.


EA v Chesterfield Royal Hospital NHS Foundation Trust (2017)

This case arises out of clinical negligence where the claimant, a pregnant 24-year-old woman, referred herself to a birthing centre at a hospital of the defendant trust because she was vomiting, dizzy, unable to urinate and was suffering from a headache. The claimant was diagnosed as suffering with severe pre-eclampsia and being in active labour. Unfortunately, the next day the claimant’s baby was delivered still born.

The claimant suffered symptoms of stress including intrusive thoughts, nightmares, flashbacks, avoidance phenomena, increased arousal, mood disturbance, elevated general anxiety and social withdrawal. These symptoms were expected to last around two years.

The claimant planned to have her baby, stay at home for six months and go back to work part-time, only doing a couple of shifts per week. Following the stillbirth she attempted to go back to work but found she could not cope. The claimant was thinking of leaving work altogether but was offered a demotion to a position that would be less stressful but that consequently meant she suffered a loss of earnings as a result.

The claimant brought an action against the defendant alleging that it was negligent in failing to provide appropriate care, in particular failing to recognise abnormal Cardiotocography (CTG) results. The claimant alleged that the defendant trust had the opportunity to deliver the child alive.

The claimant was awarded an out of court settlement for £35,000 total damages. She was awarded £30,000 for general PSLA and £5,000 for special damages including loss of earnings, cost of flowers for grave and funeral expenses.


OTHER NEWS

Infected Bloody Inquiry Preliminary Hearing Commences

During the 1970s and 1980s, thousands of NHS patients were infected with blood-borne viruses such as HIV/AIDS and Hepatitis due to treatment with Factor concentrates for haemophilia or in the course of blood transfusions.

The Inquiry will consider issues including what happened at the time and why, the amendment and loss of medical records, whether there was a medical or political cover up, what ought to have been known and done by pharmaceutical companies, clinicians, government bodies and politicians and how this can be avoided in the futur

The Inquiry will start hearing oral evidence in April 2019 and is predicted to take over two years to complete.


NHS Pays Out £35m Due to Unsafe Hospitals

During 2017/18, the NHS paid out £35m in compensation for claims of public liability, property damage and theft due to hospitals being unsafe for staff to work in and dangerous for members of the public to visit.

The average pay out over the financial year was £158,219 but some trusts paid out more than £1m each. These trusts included North West Ambulance Service NHS Trust and Guy’s and St Thomas’ NHS Foundation Trust.

This amount of compensation does not include claimant or defence legal costs and is a cumulative sum paid to claimants as a result of hospitals inadequately providing safeguards for staff and members of the public.


Vulnerable Road Users To Be Exempt From Whiplash Reforms

The Lord Chancellor, David Gauke, has announced that vulnerable road users such as pedestrians and cyclists will be completely exempt from the government’s whiplash reforms.

At the opening of the second reading of the Civil Liability Bill, David Gauke said “Our reforms are focused on ensuring that genuine claimants have access to justice, receive a proportionate amount of compensation and that the system works for all who use it honestly”.

The Ministry of Justice had already made a concession in the House of Lords exempting vulnerable road users from the provisions of the bill, but not from the associated increase in the small claims limit.

David Gauke also noted that “Raising the small claims limit for these RTA cases to £5,000 will work to control their costs, acting as an incentive for insurers to challenge, rather than settle, those cases that they believe to be without merit”.

The bill begins sitting again on the 9 October 2018, the date by which the committee has to finish its work.


Female Majority To Hear Supreme Court Case For The First Time In History

The UK’s highest court is set to have a female majority hear a case for the first time in 600 years.

Three female judges out of a total of five judges are to hear a Supreme Court case regarding a 16-year-old with Asperger's ’syndrome and learning difficulties.

Lady Hale, the court’s first female president, said women were “seriously under represented” among senior judges due to the struggle of juggling high-flying legal jobs with family and caring responsibilities.

This ground-breaking moment has been made possible by the appointment of Lady Justice Arden, who currently sits on the Court of Appeal, and will be joining the Supreme Court at the beginning of October 2018.


The MoJ Sets Date For Civil Liability Savings Report

MPs and others will now have to wait until 2024-2025 to discover whether insurers have passed on the huge savings the Civil Liability Bill is likely to generate.

A recent government amendment laid down by the Justice Minister means that a report to Parliament will only have to be made between 1 April 2024 and 31 March 2025.

The amendment aims to counterbalance critics who say policy holders will not see lower premium rates notwithstanding the savings from both the whiplash reforms and an increased discount rate. The amendment provides that regulations to be made by the Treasury “may” oblige insurers to give information to the Financial Conduct Authority (FCA) about the effect of the legislation on their policy holders.

Insurers must provide information on what they have paid out each year as a result of personal injury claims, what they would have had to pay if the legislation would not have been in force and any benefits that the savings have been used to provide. This then needs to be confirmed by an auditor and then provided to the FCA.

The Treasury and the FCA would have to report this information to Parliament within 12 months after 1 April 2024 and give a view on whether and how policy holders have “benefited from any reductions in costs for insurers”.

It has been noted that some time will need to pass before the full impact of the legislation has been felt.


For more information contact

< Go back

Print Friendly and PDF
Subscribe to e-briefings