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Eversheds Sutherland's corporate claims bulletin - March 2018

  • United Kingdom
  • Litigation and dispute management
  • Personal injury claims litigation

20-04-2018

Hannah Pook v Rossall School (2018) QBD

Facts

The claimant was a student at the defendant’s school. On 14 January 2011 she was taking part in a PE lesson, in which the students were going to play hockey. The students got changed in the changing rooms and then made their way over to the astro turf pitches.

The claimant alleges the students were encouraged to run to the pitches by the teachers. As she was running to the pitches, the claimant alleges she began to race another girl and in doing so, cut the corner of the tarmac path and slipped on a muddy grass patch. The claimant alleges she fell backwards and hit her elbow on the kerb.

The pleadings

The claimant alleges that the school failed to properly supervise the PE lesson, failed to provide any adequate barrier around the muddy area and failed to ensure that students did not walk on the muddy area.

The defendant denied that the claimant was running at the time of the accident, denied that she had passed over the muddy area and stated the claimant tripped on the kerb. The defendant also alleged that a teacher was present at the front and rear of the group of student and therefore adequate supervision had been provided. Finally, the defendant denied they had a duty to fence off the muddy area and denied they had a duty to stop students walking over it.

First instance trial

The claimant submitted to the court at first instance that the students should not have been encouraged or permitted to run. He stated that the issue is therefore one of how the students were or were not controlled, rather than the danger on the school premises.

The defendant sought to argue that the court could not determine how this accident occurred and therefore the claim should be dismissed. The defendant argued that whether the claimant was running or walking, made no difference as it was not determinative of the case, the court could not be certain that the claimant slipped because she was running or tripped when she was walking.

The claimant responded with allegations that the area in question was not a safe area to end a race between children.

The court found as a matter of fact that the claimant fell forwards. It was documented in the hospital records as such. The Judge appeared to also accept the account recorded in the records that the claimant was running. The Judge however did not believe the issue of causation was established, preferring the account that the claimant tripped forwards, rather than slipped backwards.

The Judge also found that there had been no negligence in allowing the students to run to the lesson.

On appeal

The claimant appealed stating that by allowing the students to run, the risk of injury was increased. If the increased risk was not justified, the students should have been instructed to walk. They also alleged that the route through the car park and over an internal road posed an additional risk to students running. The claimant submitted that there had to be an analysis of the risk and benefit. In the circumstances the claimant alleged the instruction should have been to walk.

The defendant submitted that there had been consideration by the teachers and it was appropriate to allow the students to run to the lesson. The defendant also stated that there was no particular risks that required them to walk rather than run. The children had been told not to go on the muddy verge. They also stated there were benefits to letting them run, as the lesson would not be held up by dawdlers and the children would be sufficiently warmed up.

Appeal dismissed

The court rejected the notion that the school is to reduce the risk to the lowest level reasonably practicable. The court accepted there will be times where the students would not be permitted to run (for example in corridors) but there will also be times where the teacher’s discretion and judgment must be used.

The Judge held that the finding in the first instance was right. The Judge also held that the finding on causation was within the power of the first instance judge. The contemporaneous records showed the claimant reporting to have fallen forwards whilst running, an outcome the appeal Judge was content could happen just as equally if she had been walking. The appeal was therefore dismissed.

The Bosworth Water Trust v SSR, A.B,J.B-W (2018) QBD

SSR was one of three guests invited by J’s parents to celebrate J’s birthday at an amusement park, owned and operated by the Bosworth Water Trust.

J’s mother had paid for them to play mini golf. Each boy was given a metal putter by a Bosworth employee. J got frustrated with one of the holes and took a full swing of the club, which came into contact with SSR’s face. SSR lost vision in his left eye, he was nine years old.

First instance

SSR brought a claim against the Bosworth Water Trust and the parents of J. Both defendants denied liability.

The judge considered the following points when giving judgment:

  1. Whether J was volatile, unpredictable and sometimes violent – finding that outside of school J was boisterous and sometimes impulsive and that this behaviour was manageable with firm handling as his mother knew or ought to have known, but that he was not dangerous and dangerous behaviour could not have been foreseen.
  2. What measures needed to be taken to enable the boys to play safely on the course – it was appropriate for the boys to be given instruction as to how to behave, how to use the putters and should have been supervised whilst playing their game, but did not say who was responsible for the instructions and supervision.
  3. No formal risk assessment undertaken – there were no rules posted in the shop or on the course but it was reasonable for the trust to expect parents to supervise their children and ensure they behaved well. Since the accident a risk assessment had been carried out, signs were put up and rubber putters were used. The judge found that if instructions were given by the Trust, the boys would have followed them.
  4. What J’s parents had said to them – held that some instructions had been given by J’s mother but could not conclude what that instruction included.
  5. How the accident occurred – J was frustrated with ‘not being able to do a hole’ and took a full swing like a professional golfer. The backswing came into contact with SSR who was stood beside the hole.

The Judge held that Bosworth Water Trust could have given an instruction or rule which would have prevented the situation from arising.

The Judge dismissed the claim against J’s parents, finding that there had been a level of supervision and instruction of the parents.

Permission to appeal the dismissal of the claim against J’s parents was granted to Bosworth Water Trust, along with permission to appeal against four of the five grounds found against the Trust.

Appeal dismissed

The Bosworth Water Trust stated the Judge was in error on one of four grounds:

  1. The Court erred in establishing causation
  2. The Court imposed a standard of care that was too high
  3. The Court erred in relation to the element of foreseeability of the risk of serious harm
  4. The Court erred in finding that there was a duty to warn participants not to swing their clubs.

The Trust relied on the case of Harris v Perry (2008) in which a bouncy castle operator was not found to be negligent for injuries. The onus in this case was put on the parents to supervise their children. The Trust argued that the parents should have policed the behaviour of the children.

The appeal Judge however found no basis on which to alter the findings of the first instance Judge. A risk assessment should have been carried out and warning sign should have been put in place, as it would have cost very little to do. The Trust were therefore in breach of their duty.

The fact that the Bosworth Water Trust did in fact carry out a risk assessment post accident and put up signs, show that a warning would have been given to J. As such, the findings of causation flow from that.

The Bosworth Water Trust argued that serious harm was not reasonably foreseeable. This was rejected on appeal. Although it was accepted the risk of harm was obvious, it was not so obvious not to require further mitigating actions. The appeal was therefore dismissed.

In a separate appeal, SSR argued that the dismissal of the parents claim was incorrect. It was accepted that some instruction was given by J’s mother but that instruction did not extent to not swinging the club. The appeal Judge held that if J’s mother had not been intending to go round with the boys, a greater level of instruction would be needed. The appeal was therefore allowed against J’s parents.

Susan McIntosh v Mr Barry Harman (2018) QBD

The claimant was a serving police officer and was driving a marked BMW police car. She had pulled up on the side of the B386 facing oncoming traffic. A Citroen motor car driven by the defendant travelling west bound then collided head on with the police car.

The injuries sustained by the claimant lead to taking early retirement from the police force.

Liability was denied by the defendant and contributory negligence was alleged. At a Case Management Conference the Court ordered liability be tried as a preliminary issue and refused permission to obtain an accident reconstruction report.

The issues

The claimant was searching for a missing 81 year old woman. She saw a group of 6-8 people in a driveway on the opposite side of the carriageway. She pulled across to the west bound carriageway and parked by the side of the road. The lights on the police car were off to avoid dazzling the pedestrians and oncoming traffic. The defendant alleges he saw an oncoming vehicle which he thought was on the other side of the road, he dipped his headlights and lowered his speed. It was only at the final seconds before the collision he realised the vehicle was in his path.

The defendant alleged that there was ample room for the police car to pull into the driveway and that the lights should have been left on.

The evidence

The police car was fitted with an ‘incident data recorder’ which recorded the relevant events. Each party instructed an expert to review the data. The following was agreed:

  • The police car came to a stop 1 minute 32 seconds prior to the collision with headlight dipped beams and side lights on.
  • 60 seconds later the dipped beams were off but the side lights and rear red lights were on.
  • 19.4 seconds prior to the collision the dipped beams came back on.
  • 3.5 seconds prior to the impact the main beams were on.
  • The take down lights were on throughout.

The dash cam of the police car captured the incident. This showed the defendant’s headlights dip and the police car’s headlights illuminate before the impact.

Conclusions

The Court accepted the defendant’s account that he first became aware of what he thought were oncoming headlights before he cleared the brow of the hill. The Court also accepted that the defendant believed these to belong to an oncoming vehicle. The Court however did not accept the defendant could assume the lights were oncoming headlights up to 3.5 seconds before the impact. There was no indication the lights were moving.

The defendant should therefore have appreciated there was a hazard in his path within seconds of clearing the brow or the hill, some 120 metres away. The fact he did not showed that the defendant was not taking sufficient care and was travelling too fast to react appropriately.

It was held that if the claimant was travelling at a speed of 40-50mph, he would have been able to see the hazard from 75.4 – 84.4 metres away. If he had been driving at a reasonable speed, the defendant would have been able to bring his car to a halt or steer around the police car safely. The defendant was found liable.

In determining whether any contributory negligence applied, the court held that the claimant’s actions of turning off the side lights on the defendant’s approach were negligent.

The claimant was held 30% liable for not sufficiently illuminating the vehicle.

Goldscheider v Royal Opera House Covent Garden Foundation (2018) QBD

Facts

The claimant had been a professional musician employed by the defendant. The defendant's orchestra played in a pit, half-covered by a stage. The defendant had duties under the Control of Noise at Work Regulations 2005.

The defendant provided the claimant with custom 9dB earplugs, and 28dB earplugs were available in the orchestra pit. The earplugs caused difficulties in hearing other players, so use of the earplugs was discretionary.

In 2012 the conductor planned a different pit configuration for artistic reasons. The claimant therefore sat in front of the brass section and particularly in front of the principal trumpet.

A risk assessment was carried out and it was anticipated that noise would exceed the action levels in the regulations. The claimant wore the 9dB earplugs intermittently.

During a session the claimant complained about the noise and a dosimeter was attached to his shoulder. This did not provide live readings. After the afternoon rehearsal the claimant complained of ear pain and dizziness.

Allegations

The claimant alleged the defendant had breached its duty regarding risks identified on the risk assessment, reducing and controlling noise exposure, providing and enforcing the use of hearing protection and providing training. As a result the claimant suffered acoustic shock.

The defendant denied liability and provided expert evidence that the claimant had begun to suffer from Meniere's disease, not acoustic shock.

Judgment

The court gave judgment for the claimant on the following basis:

  • The defendant's risk assessment identified noise levels expected to exceed the action levels. That was a general statement which took no account of the requirements in Regulation 5(3). The assessment was for a performance, not a rehearsal, and did not account for repetition of loud passages. Given the expectation of high noise levels, it would have been reasonable to monitor levels at the first rehearsals and different parts of the opera to gauge the level and type of exposure.
  • There was a breach of Regulation 5(3)(a). The assessment did not recognise that the employer was under a duty to ensure the pit was designated a hearing protection zone and the failure to do so and to impose mandatory requirements for hearing protection breached Regulation 5(1).
  • The defendant conceded it was possible to perform at a lower sound level. The defendant had breached Regulation 6(1) for failing to do everything reasonably practicable to remove the risk.
  • The defendant was also required to reduce noise exposure by appropriate measures, excluding personal hearing protectors. Those protectors were instead the only measure it had used.
  • The defendant had not informed the players of the mandatory requirement for hearing protection when noise was likely to exceed the second action level.

The court was satisfied that causation was established and that the claimant suffered acoustic shock, rather than the defendant’s contention that he was suffering from Meniere’s disease.

Procedure

James Quinn v Claire Bricklebank (2018) Central London County Court

Facts

The claimant brought a claim against the defendant for damages, personal injury, and other losses arising out of a road traffic accident on 29 June 2015. The claim included a significant claim for credit hire totalling £58,000.

The defendant denied liability but could not advance a positive case as he simply did not know that an accident had taken place.

An application was made to the court following a Cost and Case Management (“CCMC”) hearing on 22 November 2016. It was left to Counsel to draw up the order following the hearing. Counsel could not agree on what the judge had ordered. The defendant’s counsel sent his version of the order with the claimant's representations to the Court but it appears that the Deputy District Judge had not seen the draft and no sealed order had been issued.

The application

An application was made for the order to be perfected. The defendant sought to strike out part of the claimant’s witness statement, in particular two paragraphs which deal with her need to hire a replacement vehicle, on the basis that she had failed to plead any need in either her Particulars of Claim or her Reply.

The defendant argued that if the Court strikes out that part of the witness statement then the whole claim for credit hire must also be struck out on the basis it is simply not a pleaded part, although one of the crucial elements for the credit hire claim is lacking.

The claimant opposed the application.

The Judge was addressed by the defendant on this self-same point at the CCMC hearing and ordered as follows:

'The Claimant must by 4pm on 13 December 2016 file and serve a reply complaint with PD 16.8.2(8) setting out any facts relating to mitigation of loss or damage on which she proposes to rely’.

The Particulars of Claim, in particulars of personal injury said:

'The Claimant intends to raise the issue of impecuniosity, the Claimant intends to rely on further Evidence, and then under 'Particulars of Special Damage' in handwriting is listed ‘one hire to date and continuing’.

The Defence raises the issue of a lack of pleading as to need for a replacement vehicle.

The reply filed made no reference to a need for a replacement vehicle and the need is only addressed in the claimant’s witness statement, where she says she needed the vehicle for commuting to work and all other purposes.

The defendant referred to the case of Umerji v Zurich Insurance PLC [2014], which states:

'A claimant whose car has currently been damaged as a result of the defendant's negligence is entitled to recover for the cost of hiring a replacement vehicle to the extent but only to the extent that it was reasonable for him to incur that expenditure.'

'The issue of reasonableness is conventionally assessed by reference to the three elements labelled need, rate and duration'.

The issues to be determined are therefore:

  1. Did the claimant need a replacement vehicle for all or any part of the period claimed?
  2. What rate did the claimant need to incur?
  3. What was a reasonable period of hire?

The court stated that the order made at the CCMC hearing, and indeed the Practice Direction required the claimant to spell out in the Particulars of Claim and, if not there in the reply, the need for a replacement vehicle. As she had not done so then it was not open to her to seek to get in evidence on need.

The claimant relied on the case of Giles v Thompson [1993], in which under the Heading, 'Proof of Need' is the well-known part which reads "the need for a replacement car is not self-proving".

'A claim for the cost of hire of a replacement vehicle is strictly a claim for expenditure incurred in mitigation of the primary loss, namely the loss of use of the damaged vehicle. The burden is thus on the Claimant to prove and therefore plead that such expenditure was reasonably incurred'.

Judgment

The court held that the passage in Giles v Thompson about inference did not sit very easily with the Practice Direction.

The order however had not been sealed and all orders do have to be sealed under CPR 40.2. However, it is open to the court to allow a party to draw up an order under 40.3. Under 40.7(1):

'A judgement or order takes effect from the day when it is given or made, or such later date as the Court may specify'.

The court was satisfied that even though the order was not sealed, it was made on 22 November 2016 and did bind the parties and the order refers to PD 16.8.2 which says 'any facts relating to mitigation of loss or damage'.

The court interpreted ‘any facts’ to mean not just the mere fact of credit hire but the elements needed to prove the reasonableness of that expenditure and so that does mean that the claimant should have pleaded facts relating to need. The claimant was held to be in breach of the Practice Direction and the order.

The court was also satisfied that it was simply disproportionate to strike out the offending parts of the claimant’s witness statement, and even more so disproportionate to strike out a major element of her claim. The defect could be proportionately remedied by an unless order to the claimant to file and serve an amended reply which sets out the facts as to need for a replacement vehicle, and if there are any cost consequences then there could be orders for those.

Mr Richard Fudge v Hawkins and Holmes Limited, F.G. Minter Limited, Charles Winstone (Builders) Limited (2018)

Facts

The Claimant, an 81 year old male, sought provisional damages against each of the defendants for alleged asbestos-related injury leading to the development of diffuse pleural thickening and asbestosis.

He was said to have a respiratory disability of 30%, 20% of which was attributable to pleural thickening and 10% to asbestosis; the disease was likely to increase by 10% in next 10 years. There is said to be a 3% risk of malignant mesothelioma and a 2% risk of asbestos related lung cancer. Life expectancy was alleged to be reduced by 4 months because of the risk of asbestos related malignant disease and by 3 months due to a risk of respiratory failure and also of chest infection.

He alleged that he was exposed to asbestos while working for the defendants at various separate times between 1973 and 1978, cutting asbestos insulation boards, sweeping asbestos dust and debris, or working near laggers as they worked with asbestos paste. He alleged that each of the defendants owed him and were in breach of common law and/or statutory duties to protect him from exposure to asbestos and accordingly that each was liable.

The defendants denied liability and plead limitation defences. It was ordered that there be a preliminary trial on the issue of limitation.

It was common ground that the action was brought after the expiry of the limitation period defined by the claimant's date of knowledge. The claimant accepted that he had the knowledge for the purpose of sections 11 and 14 of the Limitation Act 1980 by the summer of 2008. The three year period would have expired in the summer of 2011.

The claim form was issued on 9 February 2017, some five and a half years after the expiry of the primary limitation period. Therefore the sole issue is whether the court should exercise their discretion under section 33 of the Limitation Act 1980 to disapply the limitation period which the claimant accepted otherwise barred him from pursuing this claim against all three defendants.

The legal principles

The court reviewed the case law which had been decided on the burden of proof.

The court held that inevitably each case will turn on its facts and a comparative analysis of delay in other cases is not likely to be helpful.

The parties argued that delay should include any delay caused in the pre-limitation period. The defendant argued that it did, whereas the claimant argued that it was only the period after the expiry of limitation that needed to be considered for section 33.

The court concluded that delay under section 33 was not pre-limitation delay as such. However, when assessing the significance of post limitation delay, the earlier period can be taken into account when considering prejudice. It is likely that greater weight will be placed on delay since the claimant gained knowledge required to start the limitation clock running.

The court considered whether the defendant had suffered any evidential or forensic prejudice which should make the difference. It held that delay is a factor but the weight to be attached to it will depend on the circumstances of the case and in particular, the prejudice in terms of the ability to look for or adduce cogent evidence. Even if there is evidential prejudice, the court must also have regard to the reasons for the delay and to the fairness of a decision to the parties.

The claimant is required to act promptly in order for section 33 to apply. In this case there was no argument put to the court that required any other action than acting on the plain meaning of the words in section 33.

The court stated that they must be careful not to gain a false impression of the cogency of the evidence, which un-contradicted, may appear to be proof of liability and allow that impression to influence the exercise of discretion.

The defendants argued that as a matter of public policy, where there was an inordinate delay, the courts should not exercise discretion under section 33. The court however concluded that this was not an inflexible rule and that consideration had to be given to the length of the delay. The longer the delay, the more difficult it would be for the claimant to disapply the rule.

The did however accept that in certain cases, proportionality may be a factor to which regard should be had.

Pleadings

The claimant accepted his date of knowledge was September 2008 but did not bring proceedings until February 2017. The claimant sought legal advice in 2010 but was told in 2011 that no insurers could be traced for his former employers.

In 2015 he consulted another solicitor about a claim under a statutory scheme, who then identified insurers for all three employers. The claimant alleges the delay was unlikely to diminish the cogency of the available evidence and that he had given full information previously prior to commencing the claim.

What did the claimant have to prove?

  • That he worked for one or more of the defendants;
  • When and for how long he worked for them;
  • That in the course of his work for the defendants he was exposed to asbestos;
  • That this exposure was caused by an actionable breach of duty on the part of one or more of the defendants;
  • That the pleural plaques and asbestos related disease were caused by the exposure.

The evidence

The claimant set out his witness statement a list of his employment history and served a further seven statements in support. The claimant had given a witness statement to his previous solicitors but this had not been served, although no adverse inference was drawn from this.

The previous solicitors file was disclosed and makes several references to establishing the employment history. Reference was also drawn to limitation expiring in June 2011. The solicitors wrote to the claimant and gave him all the information required to protect his position.

The claimant conceded in cross examination that he had held records of employment separately, but that these were destroyed in 2012.

The court were however satisfied that the responsibility for not carrying out a search for employers could not be laid at the claimant’s door.

The defendants provided evidence which suggests no living directors of the companies could recall the works or projects referred to by the claimant.

The findings

The court held the following in this matter:

  • The claimant acquired actual knowledge in September 2008, there was no delay prior to that date as the claimant was not and should not have been aware of his condition;
  • There was a delay between 2008 and 2010 in instructing solicitors, when the claimant should really have got on with making a claim;
  • The claimant gave a highly confused and confusing account of his employment history which lead the previous solicitors on a wild goose chase;Any doubt about the limitation date was taken away by the previous solicitors letter setting out in clear terms the date of limitation;
  • The claimant appears to had put the possibility of a claim entirely out of his mind until fortuitously speaking to his current solicitors;
  • The claimant sought to rely on the previous solicitors advice but the court were not satisfied that this provided a satisfactory explanation, in light of the fact the claimant did not give all the necessary information to the solicitor;
  • Proceedings were issued nearly 8 years after the expiry of limitation and 2 years after the instruction of the current solicitors. This was held to be an unacceptable delay by the court;
  • There was no inevitability for the delay in commencing proceedings, the claimant took time in approaching solicitors and then provided a confusing story of employment;
  • The claimant was not able to offer a coherent account that answers the issues identified by the court;
  • The cogency of the evidence had been significantly reduced by the delay in bringing proceedings. What would have been difficulties due to a fading memory before the expiry of the limitation period have become insuperable barriers since then;
  • The defendants have been unable to turn up any evidence in respect of the work alleged by the claimant, the delay also meaning that the defendants had been deprived of seeing the claimant’s file which was subsequently destroyed;
  • The claimant did not act promptly or reasonably having spoken to the previous solicitors, he failed to offer the solicitors his own archive;
  • The claimant failed to seek a second opinion for a number of years after being advised to do so, the reasonable response would have been for the claimant to search his own archive;

Judgment

The court held that if they were is disapply the limitation rule, the defendants would be left having to respond to a claim on an already failing memory of the claimant. they had been deprived access to contemporaneous records which would help prove or disprove the allegations.

The court concluded it would not be equitable to allow the action to proceed. There had been considerable delay, which could have been avoided by the claimant. The effects of the limitation defence were therefore not disapplied.

Other news

Justice Secretary unveils new bill to cut car insurance premiums

The Secretary of State for Justice, David Gauke has unveiled the draft Civil Liability Bill, which focusses on reducing the number of whiplash claims and allows insurers to cut premiums. Motorists are expected to save around £35 per year as a result of the legislation, which will set fixed amounts of compensation for whiplash claims, and ban the practice of seeking or offering to settle whiplash claims without medical evidence.

Claimant lawyers will lose £81m a year as insurers pocket huge windfall

In response to the draft Civil Liability Bill an impact assessment has been published by the Ministry of Justice and states that £32 million will be lost from claims that will no longer proceed. It also estimates that an additional £49 million is likely to be taken from firms' revenues where claims proceed but without the claimant having legal representation.

Personal injury discount rate: how it should be set in future: Consultation outcome

The Ministry of Justice has published documents that comprise the Government response to the March 2017 consultation on how the personal injury discount rate should be set in future. They include a Command Paper entitled "Personal Injury Discount Rate: Government response to the report of the Justice Select Committee".

The papers set out the response from the Government and highlight which steps should now be taken to proceed with the review of the discount rate.

For more information contact

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