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Corporate claims bulletin: Liability

  • United Kingdom
  • Personal injury claims litigation

16-02-2015

Iwona Sobolewska (a protected party by E W A Sobolewska her litigation friend) v Michael Alfred Threlfall (2014)

The High Court was required to determine liability in a personal injury claim brought by the claimant pedestrian (S) against the defendant driver (T).

One evening S had been found on the ground of a supermarket car park after leaving work. She had sustained a fracture to her ankle and a significant head injury, which caused brain damage leading to aphasia, cognitive deficits and a weakness in her arm. As a result of her head injury she could not remember what had happened, but her case was that her injuries had been caused when T's car had come into contact with her in the car park, sending her to the ground. It was not in issue that T's car had been travelling very slowly at the material time. T was also uncertain about what exactly had occurred, but in his witness statement he recounted that, upon driving off in the car park, he had noticed a shadow on his left hand side which suddenly disappeared.

He accepted that the ankle injury had been caused by him making contact with S in the car park, but he argued that the head injury had been caused other than as a result of the contact between his car and S. He contended that insufficient force would have been applied to S in the low velocity collision for her to have fallen and impacted with the ground with adequate force to cause an injury as severe as that which she had sustained.

HELD: (1) The evidence clearly showed that there had been contact between T's car and S, that S had fallen to the ground as a result, and that in the process S had injured her ankle and head, the head injury being caused by her impact with the ground. It was wholly clear that the injuries were of a kind likely to have been caused by falling to the ground after being run into by a car, Drake v Harbour [2008] EWCA Civ 25, 121 Con. L.R. 18 followed. For the head injury to have been caused in some way before the accident involving T's car, it had to be envisaged that S had either fallen and hit her head on the ground sometime earlier in her journey to the car park, or that she had been the victim of a serious assault at some stage which had involved her head being struck. It was inconceivable that at some stage in the period of about 10 minutes from leaving work to being found on the ground of the car park, having had some interaction with T's car, she had suffered a head injury which had rendered her temporarily unconscious, and had then recovered sufficiently to get to the car park only to suffer a second, unrelated period of unconsciousness. Applying common sense to T's own account of what had happened, it suggested plainly that S had fallen with sufficient force to cause her head injury. It was tolerably clear that an awkward fall onto a car park surface, where the hands of the person falling did not move sufficiently quickly or in the right direction to break the fall, could easily lead to the kind of injury that S had sustained. Further, in manoeuvring as he had done, it had been incumbent on T to check that it was safe from the point of view of pedestrians and other users of the car park. He had not done so and thus had deprived himself of the opportunity of seeing S who, notwithstanding the lack of lighting in the car park, would have been visible if he had looked carefully. Accordingly, in the absence of any other credible explanation for S's injuries, the picture was clear enough for the court to infer that the injuries were probably caused as a result of whatever had happened between S and T's car. (2) It was likely that S had approached T's car from the left and that she had been close to the car before it had started to move. If so, she would not have been in the direct line of view of the car's front or rear lights. On that basis, S was not at fault at all. The evidence did not suggest that she had been distracted by listening to music or focusing on her mobile telephone shortly before the accident. There was therefore no basis for a finding of contributory negligence.

Judgment for claimant

Chief constable of Hampshire Constabulary v Southampton City Council (2014)

The claimant C - who had died by the time of the judgment - was a retired police officer at the Hampshire Constabulary (D1) throughout his working life. After retirement he developed mesothelioma as a result of exposure to asbestos. For many years he had worked at the Southampton Central Police Station which was owned by Southampton City Council and let by then to D1 under a tenancy at will. On 15 April 2010 he commenced High Court proceedings against his former employers D1 alleging negligence and breach of statutory duty for exposing him to asbestos. On 8 October 2010 D1 solicitors for D1 made a Part 36 offer of settlement which C accepted on 4 November 2010. The offer was for payment of £71,351.20 plus costs (divided between C and the Compensation Recovery Unit) and, at the request of the parties, it was embodied in a consent order made on 15 December 2010. The order relating to costs provided that:

'The Defendant do pay the Claimants' costs of this action, such costs to be agreed if possible and if not, to be subject to a detailed assessment by the court.'

In due course the parties reached agreement in the amount of C's reasonable costs and the costs of the detailed assessment - and on 15 November 2011 a costs judge made a consent order relating to that agreement.

HC took the view that Southampton Council bore some responsibility for C's injuries on the basis that they had negligently allowed asbestos lagging to be present in the police station, thus exposing police officers to risks associated with asbestos dust and fibres. These claims were notified to the Council's insurers who rejected them. Accordingly D1 commenced contribution proceedings against the Council (D2) who denied liability and also claimed that the contribution claim was statute barred under s10 Limitation Act 1980. The contribution claim was started on 3 December 2012 and the court directed that the limitation question should be tried as a preliminary issue. The judge ruled that the action was indeed statute barred.


The law relating to limitation is to be found in section 10 of the Limitation Act 1980 ('the 1980 Act'). Subsection 10(1) imposes a two year limitation period starting from the date on which the right to claim contribution accrued.

Subsections (3) and (4) specify the date on which the contribution claim accrued:

'(3) If the person in question is held liable in respect of that damage
(a) by a judgment given in any civil proceedings or
(b) by an award made in any arbitration, the relevant date shall be the date on which the judgment is given or the date of the award (as the case may be).

(4) If, in any case not within subsection (3) above, the person in question makes or agrees to make any payment to one or more persons in compensation for that damage (whether he admits liability in respect of the damage or not) the relevant date shall be the earliest date on which the amount to be paid by him is agreed between him (or his representative) and the person (or each of the persons as the case may be) to whom the payment is to be made.'

When did time start to run? The contribution proceedings were started on 3 December. The legal issue was whether the case fell within section 10(3) or 10(4) of the 1980 Act. Counsel for D1 argued that (1) section 10(3) applied (2) under that subsection time only started to run on '15 December 2010 when the consent order was made and consequently (3) the contribution claim on 3 December 2012 fell within the two year limitation period.

As previously stated, the District Judge reached the opposite conclusion on the basis that (1) the case was governed by subsection (4) of the 1980 Act (2) time started to run on 4 November 2010 when C accepted the Part 36 offer and consequently (3) the contribution claim had been started outside the two year limitation period and was therefore statute barred. The Court of Appeal were in no doubt that the judge's decision was correct. Faced with these facts most practitioners would agree that the consent order was not within subsection (3) because it was not a judgment which imposed liability. That liability had arisen several weeks earlier when C accepted the Part 36 settlement offer.

Acceptance of the Part 36 offer was found to be a binding agreement between the C and D. It followed that 4 November 2010 remained the starting point for the limitation period.

The two year limitation period for contribution claims is not widely known, consideration of the possibility of making a contribution claim should therefore be made at an early stage. 

Edwards v Sutton LBC (2014)

The court was required to determine liability in a personal injury claim by the claimant (E) against the defendant local authority following an accident in which E fell with his bicycle from an ornamental bridge into a stream in a local authority park.

E's case was that after a bicycle ride with his wife they were returning to a car park and had to cross a narrow ornamental bridge which crossed a stream with rocks in. The water was about 1.1 or 1.2 metres below the surface of the bridge and was about half a metre deep. The bridge was more than a hundred years old and had a low parapet about 26-30 cm high. His evidence was that he had been pushing his bicycle on his left ahead of his wife. They were in single file. On the bridge his bicycle started to fall to his left and he toppled over the parapet and into the water. He did not have a good recollection of the aftermath of the accident. The local authority's case, based on reports from a local authority gardener, the ambulance crew and the hospital staff, was that E had been riding his bicycle rather than pushing it. The local authority further contended that the bridge was reasonably safe; there had never been a previous accident or complaint; the bridge was ornamental and fitting guardrails would not be appropriate, although an engineering solution was possible.

HELD: (1) The written records from the gardener, ambulance crew and hospital staff were nearly contemporaneous to the accident but were hearsay. There were no witness statements from the makers and they had not been cross-examined. The court was therefore entitled to give them less weight. It was also not clear whether the ambulance crew were reporting what E had told them or what the gardener had told them, or whether the hospital staff were reporting what E had told them or what the ambulance crew had told them, which would be multiple hearsay. The records had nevertheless been allowed into the trial bundle, Charnock v Rowan [2012] was considered. The evidence had not been dealt with satisfactorily by either side, since E and his wife had not dealt with it in their own witness statements when they must have realised that it contradicted their case. On the balance of probabilities the court accepted the evidence of E and his wife that they had been pushing, and not riding, their bicycles. Their evidence had been straightforward and consistent. E's inability to recall the aftermath of the accident was not sinister. There was no proper basis for rejecting their evidence. (2) The bridge gave rise to an obvious risk of injury, because it was narrow, had a low parapet and because of the transition from tarmac to the paved surface of the bridge. There was a risk that any injury would be serious because of the rocks in the stream. There had been no formal risk assessment of the bridge and no formal consideration of its safety. On the other hand there had been no previous accident and there were no formal safety standards relevant to such a bridge. The question was not whether the bridge was structurally sound as a bridge or garden ornament but whether visitors would be reasonably safe in using it. The court had to balance the risk of injury and its seriousness against the cost and feasibility of preventive measures It was not suggested that the bridge should have been rebuilt to modern standards. However, there was a clear risk of serious injury which had not been identified and addressed. There was no duty to fit railings but, if that was not done, the local authority had to take other measures to protect visitors, namely warning of the low parapet and suggesting alternative routes. That would not involve significant cost or reduce the amenity value of the bridge. The evidence was that E would have heeded any warning. (3) The bridge presented an obvious danger but E had not taken sufficient care for his own safety. In the absence of an exculpatory reason for his loss of balance, he had not shown the necessary degree of vigilance. He said that the bicycle had pulled him over, but did not explain why he had not let go of it. He was contributorily negligent to the extent of 40 per cent.

McDonald (Deceased) -v- National Grid [2014] UKSC 53

Percy McDonald was employed by the Building Research Establishment, where he worked as a lorry driver. Between 1954 and 1959 he collected loads of pulverised fuel ash from Battersea power station. He neither worked with nor used asbestos.

Whilst at the power station Mr McDonald used to go to other areas where asbestos dust was generated by lagging work. That happened particularly in the boiler house where he was as a ‘sightseer’ or 'interested visitor".

Mr McDonald probably attended between 90 and 100 times in the 5 year period and believed he was exposed to asbestos during those visits.

In July 2012, Mr McDonald was diagnosed with mesothelioma and he died in February 2014. 

Claim

Mr McDonald brought a claimed against his employers and National Grid (as the successors to the occupier of Battersea Power Station). He claimed they were negligent and in breach of statutory duty.

Negligence claim

The negligence claim failed because at the time of the alleged exposure in the 1950's, it was not reasonably foreseeable that injury would be caused by such light exposure. The High Court Judge considered the exposure to have been modest exposure on a limited number of occasions over a short period of time. His finding was that the level of exposure was not greater than those levels thought of in the 1950's and 1960's as being likely to pose any real risk to health. 

The claim against the employer failed before the Court of Appeal too and the employer was not pursued in the Supreme court.

The finding in respect of negligence is a welcome reminder that breach of common law duty and in particular foreseeability, is to be judged by the standards of the day.

Statutory claims

Claims were made against National Grid as occupiers under S47 Factories Act 1937 which later became S63 Factories Act 1961) and Section 2(a) of the Asbestos Industry Regulations 1931.

Section 47 of the Factories Act 1937 provided that if a factory process produced dust of such an extent as to be likely to be injurious, or alternatively produced a substantial quantity of dust of any kind, then all practical measures should be taken to protect the persons employed against inhalation of dust and in particular where practicable, exhaust appliances should be provided.

Section 2 (a) of the Asbestos Industry Regulations 1931 states that the mixing or blending by hand of asbestos ‘shall not be carried out without an exhaust draft...to ensure as far as practicable the suppression of dust during the process'.

The Court of Appeal

At the original appeal hearing the Court of Appeal considered the following issues:-

Factories Act

  1. Did the Act apply to everyone in the factory or just those employed on the process?
    Answer - it only applied to those employed on the process. It does not apply to bystanders.
  2. Was the dust likely to be injurious?
    Answer - no, not according to the knowledge in the 1950's.
  3. Was there a 'substantial quantity' of dust?
    Answer - there was no evidence to establish this.

As such the claim under the Factories Act failed. This narrow interpretation of the Act restricting it to only those persons employed on the process, is welcome news for defendants.

Asbestos Industry Regulations 1931

The Court of Appeal considered the following issues:-

  1. Did the regulations apply outside the asbestos production industry?
    Answer - yes.
    The Court was bound by the decision in Cherry Tree Machine Co Ltd v Dawson 2001 EWCA Civ 101  (the Cherry Tree case) even though they appeared to have their doubts about whether it was correctly decided. 
  2. Had the regulations been breached?
    Answer  - yes.
    The regulations require a mechanical exhaust to be provided so far as practicable to suppress dust and there was no evidence that one existed.

The regulations do provide for exceptions to the requirement for an exhaust machine, and there was an issue regarding whether it would have been practicable. In this case however, the defendants were unable to adduce any evidence to prove this, which is unsurprising given the passage of time. As the burden was upon them to show that the case fell outside of the regulations and they failed to do so, the regulations applied.

The Court of Appeal found that asbestos had been mixed on site, in breach of the regulations and this resulted in exposure to the claimant for which the defendant was liable, National Grid appealed regarding the finding under the Asbestos Industry Regulations Industry Regulations and the claimant cross appealed against the finding under the Factories Act. The appeal to the Supreme court only concerned National Grid and not the employer.

Supreme Court - Judgment 22 October 2014

The claimant was successful in the Supreme Court and established liability under regulation 2 (a) of The Asbestos Industry Regulations 1931. 

The Estate will be now be compensated by the occupier of the power station.

The Supreme Court considered the following:

1.  The Asbestos Industry Regulations 1931.

The question for them was whether the regulations only apply to factories and workshops dealing with asbestos in its raw unprocessed condition?

The answer was no.

The majority (3:2) found that the 1931 regulations also apply to factories and workshops which used processed asbestos. As such the mixing of lagging paste for application to the structure and fittings of the power station fell within the 1931.

In that respect the Supreme Court supported the interpretation of 'mixing' as per the Cherry Tree case where the Appeal Court held that the regulations were not restricted to just factories in which asbestos was made. The defendant had clearly hoped that the Supreme Court would instead follow the decision in Banks v Woodhall 1995 where the 1931 regulations applied to the processes in the production of asbestos materials and products but not generally to all uses of asbestos. Importantly for the defendant, the preparation of lagging had not fallen within the ambit of the regulations in Banks.      

2. The Factories Act 1937

The defendant argued that:-

  1. Mr McDonald was not acting as a 'person employed' under the Act.
  2. The 'person employed' had to be employed in the process, Mr McDonald was not
  3. Mr McDonald had not proved that he was exposed to a substantial quantity of dust, even if there was a substantial quantity of dust elsewhere.
  4. Mr McDonald was not exposed in breach of statutory duty where the quantity was not deemed to be harmful according to the standards of the time.   

The defendant's arguments were successful overall, although the court did find that 'persons employed' was not limited to those working in the dust producing process and the term 'substantial quantity of dust' refers to substantial at the time it was produced and not when inhaled.

The court was evenly divided as to whether a duty was owed by the occupier under S47 (1)  to Mr McDonald whose work involved collecting a by product of power generation.

Comment

The Supreme Court’s judgment reflects its continuing sympathetic approach to mesothelioma claims, especially where the claim against the employer has failed.

This judgment emphasises how difficult it is to successfully defend mesothelioma claims once it has been found that a duty is owed. At that point the Defendant will be required to produce detailed evidence of technical arrangements that were in place over 50 years earlier (in this case) when they fail to do this liability attaches. When this is coupled with the Court’s willingness to interpret 85 year old penal statutes liberally the burden on defendants becomes increasingly impossible to shift.

Whilst it is appreciated that for defendants it is an uphill battle to obtain evidence from decades ago, all possible efforts should be made to trace missing historical EL and PL insurance policies, and to obtain witness evidence if possible regarding the levels of dust produced, steps taken to reduce it, and evidence relating to the exemptions from the regulations.

Platt-v-BRB (Residuary) Ltd [2014] EWCA Civ 1401

The Claimant, who was 76 years old, brought a personal injury claim in respect of noise-induced hearing loss alleged to have been suffered during his period of employment with the Defendant. 

The Claimant had worked for the Defendant between 1953 and 1988 save for a two year break in the early 1960s.

The Claimant began complaining to his GP about his hearing in 1982.  Between then and 2011 he consulted various doctors about his hearing problems but it was not until 2011 that he was told expressly that part of his hearing loss was noise-induced. That was after he had read a newspaper advertisement about noise-induced hearing loss. 

Significantly, the Claimant complained to his GP about tinnitus and hearing loss in 1997 and was referred to an ENT registrar who asked whether he had worked in a noisy environment, to which he confirmed that he had. 

Evidently the Claimant did not ask the doctor on that occasion whether his hearing problems were noise-induced and the doctor did not volunteer that information.

In the first instance it was held that the Claimant did not have actual knowledge that there was a real possibility that his hearing loss was noise-induced until he read the newspaper article in 2010, less than three years before he issued proceedings.

The trial judge held that although someone in the Claimant’s position would have been curious as to the cause of his deafness, the Claimant could not be said to have had constructive knowledge of the cause because it would have been too harsh a test to have expected the Claimant to specifically ask the doctor about the cause of his tinnitus and deafness in 1997. 

The trial judge granted the Defendant permission to appeal on the basis that there was a lack of clear authority as to the extent to which a Claimant who seeks medical advice is expected to question the doctors when no cause for his condition is given.

On appeal the central question was whether the Claimant had constructive knowledge under Section 14(1)(b) and 14(3) of the 1980 Act.

Section 14(1)(b) provides that relevant to a Claimant’s deemed date of knowledge is … “that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty”.

Section 14(3) provides that a person’s state of knowledge includes knowledge which he might reasonably be expected to acquire:-

a)     "From facts observable or ascertainable by him; or

b)      From facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek.”

The Court of Appeal found it relevant that the trial judge in the first instance had found that the Claimant had indeed been asked by the ENT Registrar whether he had worked in a noisy environment, to which he replied that he had.  It was also found that the Claimant did not go on to ask and was not told that he might have been suffering from noise-induced hearing loss.

It was submitted on behalf of the Claimant that:-

  • The Court of Appeal should not interfere with what was, in effect, a finding of fact made by an experienced trial judge.
  • The Claimant had retired from his noisy working environment some nine years before he suffered hearing loss and therefore had no reason to consider whether that work was the cause of his problem.
  • It could not reasonably be expected that someone who had a variety of hearing problems over 15 years preceding the consultation with the ENT Registrar in 1997 would have asked his medical advisors at that time as to the cause of the symptoms that he was presenting.
  • In his judgement Lord Justice Vos concluded that the trial judge’s approach and the submissions made on behalf of the Claimant at the appeal did not pay sufficient regard to section 14(3) of the 1980 Act.
  • Further, the Court of Appeal was required to consider what knowledge the Claimant might reasonably have been expected to acquire from the medical advice which it was reasonable for him to seek.  Lord Justice Vos went on to say that Section 14(3) makes it clear that a person is not to be fixed with knowledge of something ascertainable only with expert advice so long as he has taken all reasonable steps to obtain and, where appropriate, act on that advice.

Held

The Court of Appeal held that applying the appropriate test in Section 14(3) it was reasonable to have expected the Claimant to ask the ENT Registrar in 1997 what had caused his hearing loss in all the circumstances of the case.  It was not disputed that, had he done so, he would have been likely to have been informed that his tinnitus and hearing loss were noise related.

Accordingly, the decision of the trial judge at first instance was overturned and the Claimant was held to have had constructive knowledge more than three years before the issue of proceedings.

Comment

The facts of this case are typical of cases of this nature.

This decision highlights the need for a forensic assessment of the Claimant’s medical records to establish when the symptoms developed and the nature and extent of the advice sought in relation to those symptoms.

This case certainly provides a basis for maintaining a limitation defence in circumstances where the professional advice did not go as far as to say in terms that the hearing loss was noise/work-related.

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