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Personal Injury Claims Bulletin: March 2021 Edition

  • United Kingdom
  • Litigation and dispute management
  • Personal injury claims litigation - Personal Injury Bulletin

20-04-2021

LIABILITY

Mather v Ministry of Defence [2021] EWHC 811 (QB)

The issue in this case was whether it is suitable for the issue of causation to be heard as a preliminary issue without a trial for the other issues regarding liability being heard.

Background

Between 1989 and 2003 the claimant worked as a painter and finisher with the RAF, where his role involved working with organic solvents. The claimant brought an claim against the RAF due to his suffering with multiple sclerosis (MS) and a psychiatric injury, as he alleged his injuries had been caused by the defendant’s breach of duty, negligence and breach of statutory duty, specifically the Control of Substances Hazardous to Health Regulations 2002 (COSHH 2002).

The defendant denied these allegations and contended the claimant was statute-barred. It also applied to have the causation element tried as a preliminary issue as the parties needed to establish whether the organic solvents could cause MS, and, if so whether this had caused the claimant’s MS. The claimant applied for permission to rely on an addendum report from an occupational hygiene expert about possible carcinogenesis of organic solvents.  

The defendant argued that the causation point did not depend on 25 lay witnesses and 2 occupational hygiene experts. These were relevant to the duty of care, but not whether the exposure to the solvents could have caused the injuries and if so, whether it did cause them. The defendant attempted to reduce the evidence provided by the claimant’s occupational hygiene expert into a table so that it could form an assumed set of facts. Some of those facts being exposure post-2000 could be taken out of the equation, as could any exposure after 1994 because exposure might have been below certain threshold limits. The claimant objected to this and contended the court had to consider the total amount of exposure. In addition, they also stated that the making of such order is against the norm and the court should be careful to avoid delay and anxiety in accordance with the overriding objective to ensure litigation was dealt with both ‘expeditiously and ‘fairly’.

Decision

It was held that it would not be prudent or just to order a trial of a preliminary issue, either on the basis of assumed facts or a trial of causation alone without a trial for the other liability issues. It was held that it did seem sensible to separate quantum and liability if that could be done easily, but the court wanted more detail on this before granting that order. The court gave consideration to many factors in this case which are listed as follows:

  • the case on breach of duty did not overlap with causation; and there would be no duplication of witnesses between stage 1 and stage 2;
  • it had been assumed that the two trials might last the same time as one long trial;
  • recalling of the witnesses and overlapping issues, plus the possibility of witnesses contradicting themselves between stage 1 and stage 2;
  • the prospect of an appeal against a ruling on stage 1, would delay stage 2 from being heard.

 

PRACTICE AND PROCEDURE

Balls v Reeve and another (as personal representatives of the estate of Sydney Theodore Thurlow (deceased)) [2021] EWHC 751 (QB)

The issue in this case was whether a claim is statute barred when the claimant has admittedly had respiratory symptoms (which turned out to be asbestosis) for many years, before the claim was brought, and whether the claimant had actual knowledge of a significant injury attributable to asbestos exposure during the course of his employment.

Background

The 81 year old claimant was employed as a carpenter for the defendant between 1954 and 1983. It was alleged that during these years he was regularly working with asbestos, particularly during the construction of houses, bungalows and farm buildings in Suffolk. In August 2017 the claimant was diagnosed with asbestosis which caused him to suffer significant disability.

On 28 October 2019, the claimant issued court proceedings against the defendant in order to recover damages for the claimant’s suffering. However, the defendant argued the claim was statute-barred as it had been issued outside of the limitation period. The defendant submitted that the claimant had been aware he had been suffering from a respiratory condition as far back as the 1990s, or at least by the 2000s. The defendant relied on the claimant’s own oral evidence, where he has said he was suffering from breathing problems, and from reported conversations with the defendant and his relatives back in 2004.

The claimant accepted he had been suffering with respiratory symptoms for some years, however he was not aware this was asbestosis or was attributable to his exposure to asbestos until August 2017. He hadn’t considered it to have been serious enough to visit his GP until early 2017. Although, the claimant did have a chest X-ray in 2013 which showed signs of asbestos exposure and asbestosis, it was thought as harmless and the GP/hospital decided not to take it any further. As asbestosis is an insidious progressive disease, it was accepted that it had not manifested itself under late 2016, after which time he had been promptly diagnosed in August 2017. No weight was given to the conversations with the defendant or his relatives on the basis is was speculative as to whether it was signs of asbestos or asbestosis, both of which sounds similar, but are very different.

The questions the court thought necessary in order to consider whether the claimant should have had constructive knowledge (i.e. ought to or assumed to have known) were as follows:

  • what the claimant has known of his injury;
  • what he ought to have known;
  • whether a reasonable person, armed with such combined knowledge would have considered the injury significant.

Decision

It was held that the claimant should not be fixed to constructive knowledge, the main reason being that it was accepted the diagnosis was not until August 2017 and the court accepted the distinction between the x-ray (signs of asbestos exposure) and the development of an asbestos-related disease.  As a result, the claim was not statute-barred in the circumstances and if the court was wrong on the date of knowledge point, then it would have exercised its discretion under s33 to allow the claim to proceed. It was held there was no serious prejudice to the defendants as a result of any delay in bringing the claim and to deprive the claimant of the opportunity to pursue a remedy would be unjust.

Various Claimants v G4S Plc [2021] EWHC 524

The issue in this case is whether claimants can be added to proceedings after issue in circumstances where limitation may have expired.

Background

The claimants brought an action against the defendant for providing inaccurate share prices which led to losses. After proceedings were issued, a number of amendments were made to the claim form where numerous new claimants were added (64 additional claimants), which significantly impacted the value of the claim; in fact they added up to £92 million of the £102 million claimed. Some of the claimants (including some of the original claimants) listed on the claim form did not appear to be legal persons (unidentified claimants) capable of bringing a claim. After service of the proceedings the defendant challenged the additional claimants.

Rules CPR 17 to 19 were considered in detail as these set out the rules relating to additions of new parties. The claimant relied on CPR 17.1(1) which allows a party to amend his statement of case at any time before it has been served on any other party. The defendant applied for the additional claimant’s to be struck out on the basis that CPR 17.1 does not permit the addition of claimants before service or where there is said to be an arguable limitation defence.

The defendant also replied upon CPR 19.4(4) which states a party cannot be added as a claimant unless it consents in writing and that consent is filed with the court. In addition, the defendant applied for the unidentified claimants to be struck out on the basis that they had not been properly identified and were not legal entities.

The claimant stated that the defendant cannot challenge the additional claimants because they did not apply under rule CPR 17.2, which essentially provides a route for challenging amendments which should be made within 14 days of service. Ultimately, the court has the power to disallow amendments which a party has made which did not require permission from the court (CPR 17.2(1)). The claimants also applied for permission to amend the names of the unidentified claimants, this was a variation of substitution of claimants for other entities and the correction of typos.

High Court Decision

The High Court agreed with the defendant and it held that new claimants cannot be added to an existing claim form using CPR17.1, as this rule is for an amendment for an existing claimant/statement of case, it is not to plead another claimant’s entirely separate claim. It was held that the additional claimants should have brought their own separate proceedings and later apply for the claims to be consolidated. As a result, the judge struck out the additional claimants. He also considered whether the defendant’s application to strike out the additional claimants was the correct approach and could stand as an application under CPR17.2. The judge found that the defendants were correct to make this application, however as it was not made within 14 days of service, relief from sanctions would be required if the court was wrong on the CPR17.1 point.

It was also held that in order for new claimants to be properly added to an existing claim form, a separate document recording their written consent must be filed pursuant to CPR19.4(4) as argued by the defendant. The court held an amended claim form signed by the claimants’ solicitor did not constitute consent.

In relation to the limitation point, the judge held that where there is an arguable limitation point regarding the additional claimants, an application under CPR17.2 would succeed. The appropriate course would be to leave it to the claimant to issue fresh proceedings in which the limitation point could be tried.

Finally, the court refused to allow the claimant’s amendments to the names of the unidentified claimants (except for one) and the judge commented ‘the claimants failed to get their ducks in a pen, let alone in a row’ and that the courts discretion is not intended to assist with such ‘disorderly litigation.’

Mundil-Williams v Williams & Ors [2021] EWHC 586 (Ch)

Background

A testator who owned a farm attended a solicitors firm to give instructions to change his Will. The instruction was for each of his four sons to have a share in his farm, but giving one son a larger share and option to purchase the farm. A few weeks after this meeting, a Paralegal at the firm called him and recorded his instructions to give the farm to one son as a specific gift with detailed percentages of the residue going to the other sons. However, if the farm was a gift, there was no residue.

This change was not drawn to the testator’s attention and was left unexplained, he then executed the Will. Two of the sons and their families recalled conversations with the testator which described the contents of the Will in accordance with the original instructions and not the terms in the signed Will. Following the testator’s death, one of the son’s brought a claim to challenge the validity of the Will on the grounds his father did not have approval or knowledge of its contents.

The Paralegal provided evidence by saying she had gone through the instructions taken in the face to face meeting with the testator on the phone, however she accepted that the attendance note did not record that she had gone through that exercise. Instead the note stated she had asked the testator to tell her how he wanted to dispose of his assets.

The Paralegal was uncertain as to whether she had told him that his instructions over the phone were different to those in the face to face meeting a few weeks earlier, and she had not recorded this in her attendance note either. In addition, she had made no record of what assets would fall into the residuary estate i.e. nothing, and no record was made of her informing the testator of this. The follow up letter to the testator also failed to mention there would be no residue and was found to be misleading.

Decision

Among meeting the high threshold to challenge a Will of a testator, combined with the contemporaneous conversations with the family in which the testator appeared to believe he had changed his Will in accordance with the original instructions, it was held that he had not understood the contents of the Will and did not have approval or knowledge of its contents. The judge preferred the contemporaneous file note over the Paralegal’s recollection of a telephone call from 7 years ago, as he felt that throughout her evidence, she showed signs of remembering things in a manner that accorded with what she knows, what she ought to have done and what, as a now qualified Solicitor, she now would do’.

Barclay-Watt & Ors v Alpha Panareti Public Ltd & Ors [2021] EWHC 642

The issue in this case was whether witness statements which were disclosed by the claimants in error could be relied upon by the defendants.

Background

The claimants in this case had accidently disclosed 4 witness statements in their list of documents, which otherwise would have been privileged documents. This mistake, which was made by a junior solicitor was only picked up just prior to the start of the trial. The defendant made an application to rely on them as they dated back to 2011 and 2012, so argued they were far more likely to be a true reflection of the claimants’ evidence of events, as opposed to the statements made some nine years later. The main question for the court was whether the defendants had appreciated a mistake had been made by the claimant and whether it would have been obvious to a ‘reasonable’ solicitor.

High Court Decision

It was held that it was entirely reasonable for the defendants to assume that the disclosure had been intentional, and there was nothing which would put the defendants’ solicitors on notice of any mistake being made. The judge was satisfied that a reasonable solicitor would assume the same, especially when such witness statements were expressly listed without objection to disclosure. As a result, the defendants were allowed to rely on the 4 witness statements.

COSTS

Seabrook v Adam [2021] EWCA Civ 382

The issue in this case was whether the wording of the claimant’s Part 36 offer to accept 90% of damages was effective when causation was in issue.  

Background

This was a low value personal injury claim resulting from the defendant colliding into the rear of the claimant’s vehicle, causing the claimant to suffer two alleged injuries – whiplash injury to the neck and a back injury. Breach of duty was admitted, but causation was denied by the defendant. Before the trial, the Claimant made two Part 36 offers, neither of which were accepted by the defendant. The first offer was in respect of the whole claim and the second offer related to liability (90/10 split). Following the trial, the claimant was awarded a sum just under £1600 (£10,000 was claimed), this was given only in relation to the whiplash injury. Causation for the back injury was not proved.

In the first instance, it was held by the judge who was assessing the costs that the two Part 36 offers made by claimant were not genuine attempts to settle, and awarded costs without taking them into account. The claimant submitted that he had bettered his Part 36 offer because he had recovered 100% of his damages for the neck injury and if either of his Part 36 offers had been accepted, the defendant would only have to pay 90% of the damages ultimately awarded, so the claimant appealed this decision.

High Court Decision

The judge dismissed the claimant’s appeal, as it was held that had the defendant accepted either offer, he would have been liable for 90% of all injuries, when at trial the claimant had lost in respect of the more valuable back injury claim. It was held the defendant had bettered the Part 36 offers because at trial the liability was limited to just the whiplash injury and not for the larger back injury. Furthermore, the defendant would not have been able to argue the causation point for the back injury. The claimant appealed again.

Court of Appeal Decision

It was unanimously held that both part 36 offers made by the claimant had addressed liability and causation and related to both heads of damage, therefore the initial decision was correct. It was held that a reasonable person reading those offers would have read that it related to liability and causation for both of the alleged injuries. Consequently, as the defendant had only been found liable for the neck injury, he had bettered both offers and so the claimant was entitled to conventional fixed recoverable costs. The appeal judgment provided some helpful advice on this issue at paragraph 22 of the judgment, quoted below:

‘Cases of this kind turn, inevitably, on the precise wording of the pleadings and the particular terms of the Part 36 offer. In order to avoid the kind of dispute which has arisen here, especially in a low value claim, it is important to make express reference in the Part 36 offer to whether the offer relates to the whole claim or part of it and/or the precise issue to which it relates, in accordance with CPR 36.5(1)(d). In particular, if the issue to be settled is ‘liability’, it would be sensible to make clear whether the defendant is being invited only to admit a breach of duty, or if the admission is intended to go further, what damage the defendant is being invited to accept was caused by the breach of duty.’


OTHER NEWS

The number of motor claims and the total amount paid has fallen, but the average claim value rises.

The Association of British Motor Insurers (ABI) have published figures stating there were 19% fewer motor insurance claims in 2020, and the total amount paid fell, this was most likely due to fewer journeys being made because of coronavirus. However, the average personal injury claim rose by 13%. 

An exaggerated clinical negligence claim leaves a claimant with a 6 month custodial sentence.

The claimant claimed in excess of £5.7 million alleging she was unable to leave her house without assistance, when in fact her mobility was unrestricted and she had travelled abroad on numerous holidays. It was found that her dishonesty was relentless over a number of years and by her contempt of court she was effectively attempting to steal money from the NHS for her own benefit.