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Personal injury bulletin - liability

    • Personal injury claims litigation - Personal Injury Bulletin

    06-03-2014

    Jones v Lawton  [2013] EWHC 4108 (QB)

    The accident occurred in May 2010.  The Claimant was riding his motorcycle down the outside of two lanes of slow moving traffic leaving Plymouth.  The Defendant was driving his car on a side street which joined the main road the Claimant was travelling along.

    The Defendant wanted to cross the lanes of traffic leaving Plymouth and join the two lanes of traffic travelling into Plymouth.

    The traffic leaving Plymouth stopped to allow the Defendant driver out of the side road.  As the Defendant began to turn right he collided with the Claimant.  The Claimant sustained serious injuries.  The issue to be determined was the apportionment of fault between the parties.

    The Court ruled that a driver crossing lanes of slow moving traffic had to be aware of the possibility that a motorcyclist might be proceeding along the outside of the traffic.  There was an obligation for the driver to edge forward to alert the motorcyclist and giving himself the best opportunity to see the motorcyclist. There was also an obligation to look to the right, after checking the left was clear so that he would have warning of the motorcyclist approaching.  The Defendant was found to have done none of those things, these failures caused the collision, and therefore, the Defendant was found liable.

    However, although a motorcyclist was entitled to ride past lines of slow moving traffic, there was an obligation for him to do so slowly with particular awareness that vehicles may emerge from side roads.  The Claimant was found to have been riding at around 30mph which was deemed too fast.  The Claimant did not see the gap in the traffic or the Defendants car, both of which he should have seen.  His failure to keep a proper look out, and his excessive speed had been causative of the accident.

    There were two features which tilted the balance in the Claimants favour, firstly, it was the Defendant crossing the path of the Claimant which created the hazard, and motorcyclists are vulnerable road users. As a result there was a finding of two thirds one third in favour of the Claimant. 

    Chappell v Newcastle upon Tyne Hospitals NHS Foundation Trust [2013] EWHC 4023 (QB)

    The Claimant's estate brought proceedings seeking damages for injury and loss said to have been caused by the negligence of the Defendant's medical and midwifery staff.

    The Claimant was born by caesarean section  in March 2000.  The Claimant was in a reasonable condition after birth but deteriorated soon after.  He suffered from cerebral palsy and severe learning difficulties, had very poor motor care and required 24 hour care.  He died in December 2012. 

    It was submitted that an infusion of the drug Syntocine had caused the mothers uterus to contract too frequently preventing adequate recovery time between contractions for the Claimant, and that allowing labour to go on too long caused a prolonged period of hypoxia.  It was contended that the midwife should have been suspicious following the reading of the CTG and that a senior doctor should have been consulted.

    The Defendant contended there was nothing untoward about the care and that the Claimant's injury had been as a result of an infection.

    The claim was dismissed.  The Claimant had to prove that the care of the Defendant fell below that of a reasonably competent doctor or midwife in the same position.  The Claimant then had to prove that this materially lead to the injury.  The explanation provided by the Defendant was credible.

    Mohamud v WM Morrison Supermarkets plc : Court of Appeal

    The Claimant visited the Defendant’s petrol station.  Upon checking the tyre pressures on his car, the Claimant, who is of Somali descent, entered the petrol station kiosk and was subject to abuse including racist language by the Defendant’s employee Mr Khan. 

    The Claimant left the kiosk and attempted to return to his car but was followed by Mr Khan who carried out a serious assault on the Claimant on the forecourt of the petrol station.  The Claimant sustained serious injuries in the attack.  

    It was accepted the assault on the Claimant was completely unprovoked, the Claimant was in no way at fault, and had not behaved offensively or aggressively at any stage towards Mr Khan or any one else.

    At the first instance the recorder dismissed the Claimant’s claim against the Defendant on the basis that the Defendant was not vicariously liable for the attack carried out on the Claimant. The fact that the assault was carried out by an employee of the Defendant, upon the Defendant’s premises, and that the employee was required to interact with customers in the course of his duties was not sufficient to satisfy the close connection between the wrongdoing of the employee and the employment.

    The Claimant appealed and the Court of Appeal was asked to determine whether the Defendant was vicariously liable for the assault committed by Mr Khan on the Claimant.

    The Court of Appeal considered the established 2 stage test of vicarious liability:

    1. The relationship between the wrongdoer and the person alleged to be liable, and whether that relationship is capable of giving rise to vicarious liability; and
    2. Whether there is sufficiently close connection between the wrongdoing (in this case the assaults) and the employment so that it would be fair and just to hold the employers vicariously liable – this was the issue the Court of Appeal needed to consider.

    In this case there was no doubt that the first test was satisfied by the relationship between Mr Khan and his employer, the Defendant.

    The Court of Appeal however did not consider that the second test was satisfied.  The mere fact that of contact between a sales assistant and a customer, which is plainly authorised by an employer, is not sufficient to fix the employer with vicarious liability.

    The appeal was dismissed.

    Criminal Injuries Compensation Authority (Appellant) v First Tier Tribunal (Social Entitlement Chamber) (Respondent) & TS (interested party):  Court of Appeal

    TS, aged 14 was riding his bicycle along the pavement when a dog, which had escaped from his owner’s garden, rushed towards him barking in an aggressive manner, causing TS to instinctively swerve way from the dog.  He swerved into the road and into the path of a car and was seriously injured.

    The dog’s owner was aware the dog was aggressive towards strangers (although it had never bitten anyone) and was aware that it would try to escape from the garden.  Proceedings were taken against the owner under s3(1) of the Dangerous Dogs Act 1991 but the prosecution was discontinued when she gave up ownership of the dog.

    TS submitted a claim to the CICA but it was rejected on the grounds that his injuries were not attributable to a “crime of violence”.

    An appeal was lodged with the First-Tier Tribunal who disagreed with the CICA.  It found the dog had a history of being aggressive if it escaped and was aggressive towards TS.  On the balance of probabilities the injuries of TS were attributable to a crime of violence and awarded TS £499,155 compensation.

    The CICA started proceedings for judicial review of the decision on the grounds that the tribunal’s finding contained an error of law or was irrational.  The CICA submitted that the owner of the dog had not committed a crime, but even if she had, it was not a crime of violence.

    The Court of Appeal held that a crime had been committed.  A crime had been committed under s3(1) of the Dangerous Dogs Act 1991:

    If a dog is dangerously out of control in a public place—

    (a)the owner; and

    (b)if different, the person for the time being in charge of the dog,

    is guilty of an offence, or, if the dog while so out of control injures any person, an aggravated offence, under this subsection

    In establishing if the crime committed, was a crime of violence, it was necessary to consider the nature of the offence, rather than its consequences.  It was held that the crime did not become of crime of violence for the purposes of the CICA just because it resulted in an injury to a person.

    The offence committed by the owner was not a crime of violence and therefore the appeal was allowed.

    Cox v Ministry of Justice: Court of Appeal

    The  Claimant, a catering manger at HMP Swansea, was injured during the course of her employment by the negligence of prisoner undertaking paid kitchen work under her supervision.

    The Claimant had been supervising six prisoners carrying out paid kitchen work in the prison, as they carried food from a delivery van to the first floor kitchen. One dropped a 25 kg bag of rice which burst, spilling its contents over the floor. The Claimant ordered all the prisoners to stop moving before kneeling down to secure the bag.  She was just about to straighten up when two bags of rice fell onto her upper back.  A prisoner, Mr Inder, had dropped the bags off his shoulder onto the catering manager's back when he hit his head on the wall and lost his balance as he walked past.

    It was accepted that the accident was caused by the negligence of Mr Inder.

    At trial at Swansea County Court the Claimant’s claim was dismissed.  The trial Judge concluded that the MOJ was not vicariously liable for the actions of the prisoner, Mr Inder. He also rejected an alternative plea that the Ministry of Justice should be held liable for failing to ensure the prisoner was trained in manual handling as this was not of causal relevance to the accident which arose out of the prisoner's own actions.

    The Claimant appealed.

    The Court of Appeal allowed the appeal on the basis that the trial Judge was wrong to hold that the Defendant was not vicariously liable for the negligence of Mr Inder.  The relationship between the MOJ and the prisoner kitchen staff was closer than that of the usual employee/employer relationship. The kitchen work carried out by the prisoner was essential to the functioning of the prison and benefitted the MOJ.  There was no reason that the MOJ should not take on the burden of the prisoner’s work as well as the benefit. The MOJ was therefore vicariously liable.

    Yates v National Trust : QBD

    Morden Hall Park was a property owned by the National Trust (NT), Morden Lodge was in the south west corner of the park and the National Trust managed its gardens.  The warden of the park  had previously used an independent tree surgeon or arborist, Joe Jackman (JJ) to undertake work on trees in the park. He contracted JJ to carry several days work which included the felling of a horse chestnut tree which was suffering from extensive bleeding canker and honey fungus.

    The Claimant was part of the team of 3 employed as independent contractors by JJ to carry out the works.  On the day in question, JJ was not present.

    The Claimant climbed the tree using a rope and harness and began to cut off the branches of tree with a chain saw.  The other 2 contractors were on the ground feeding the fallen branches into the wood chipper.  The Claimant had been working for about 1-1½ hours and was approximately 50 feet up when he fell to the ground. It is not known how or why the Claimant fell, the Claimant cannot recall what caused him to fall and the 2 men on the ground were not looking in his direction at the time. One of the men on the ground had to cut the rope with secateurs in two or three places to free the Claimant who had become tangled up in the rope upon falling.

    The Claimant suffered a completed spinal cord injury in the fall which has rendered him permanently paraplegic.

    The Claimant pursued a claim in negligence against the National Trust. 

    To succeed in a claim for negligence the Claimant must show that the Defendant owed him a duty of care, such duty had to be a relevant duty, in that it was a breach of that duty which was causative of the Claimant’s loss.

    The Claimant was not an employee of the National Trust, he was injured carrying out work which the National Trust had contracted with JJ to do. The National Trust had no control over the Claimant.

    The Claimant argued that the National Trust had hired JJ and did not take reasonable care to see that he and his work methods were competent and safe. Evidence was presented that JJ did not have sufficient liability insurance and all appropriate qualifications.  The Court held that the NT did not owe the Claimant a duty of care in its choice of JJ as its independent contractor and therefore the claim was dismissed.

    Webley v St George’s Hospital NHS Trust and  The Metropolitan Police: QBD

    The Claimant who had a history of mental illness was involved in a disturbance at his flat.  His daughter had called the police to his flat after he had become agitated, following a heated argument with his son.  The police attending recognised immediately that the Claimant was mentally ill and for his own protection he was arrested on suspicion of affray and taken to Wimbledon Police Station.

    At the station the Claimant was assessed by the on duty Mental Health Assessment Team who considered the Claimant to be a risk to himself and possibly others and in need of compulsory hospital admission.

    The Claimant was escorted from the custody suite to an ambulance waiting in the rear yard, on leaving the building he ran away from his escort. He was subsequently detained, handcuffed and placed in the ambulance.  Whilst in the ambulance the Claimant suffered a fit and was therefore diverted to the local A&E department at the Defendant hospital, the police escorted the Claimant to hospital.

    At A&E the Claimant was placed in a cubicle where two security guards were looking after him, having relieved the police officers.

    The Claimant escaped the cubicle, ran out across the ambulance roadway to the top of a ramp before climbing over low railing onto a ledge, then fell down a 15 foot drop.  In addition to various fractures and internal injuries he sustained a serious head injury.

    The Claimant pursued a claim against both the police and the hospital.

    The Claim against the police was pursued on the basis they were negligent in not passing on information to the hospital about the Claimant’s volatile behaviour in the previous 24 hours, in particular the fact that he had attempted to escape in the police yard, and that the failure of passing on this information let to the A&E staff being insufficiently aware of the risk of the Claimant escaping. 

    The Court found that the police and/or London Ambulance staff who arrived at the hospital with the Claimant had told the sister on duty that the Claimant was a high risk patient who was likely to abscond, and they would not leave him until they had handed him over to security staff. Therefore, the Court dismissed the claim against the Metropolitan Police.

    The Court found that the hospital had failed to take reasonable steps to ensure the safety of the Claimant and that this failure had caused him to suffer injury.  The issue was the 2 security guards were observing the Claimant rather than actively guarding him.  There were 2 doors to the cubicle the Claimant was in, however, the guards, who had been properly briefed about the risks of the patient and were on the alert for a sudden move by the Claimant, had not covered both of these doors.

    Judgment was awarded by the Claimant against the NHS Trust with damages to be assessed.

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