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Eversheds Sutherland’s Corporate Claims Bulletin

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

22-05-2019

LIABILITY

Mrs Sandra Shelbourne v Cancer Research UK [2019] EWHC 842 (QB)

This is the latest test of the position on vicarious liability.

The claimant brought a claim against her employer after sustaining an injury to her back at a work Christmas party.  The party took place at the Cambridge Research Institute of CRUK in December 2012.

The organiser, a CRUK employee, completed a risk assessment.  His main concern was to prevent people returning to laboratories during or after the party, and additional security staff were present to prevent this happening.

Robert Beilik was a visiting scientist employed by Cambridge University who attended the party.  The claimant was employed by CRUK as an animal technician.  Mr Beilik had been drinking and had successfully lifted three other women on the dancefloor before the claimant’s accident.  Although none had consented, they had neither complained.  When he picked up the claimant he dropped her when he lost his balance and she suffered a serious back injury.

In the first instance the claim was dismissed on the basis CRUK was not vicariously negligent for the actions of Mr Beilik.

The decision was appealed.  The claimant’s case was that once it was established that a party was happening where alcohol was being provided, which could cause people to behave in inappropriate ways, there needed to be a written declaration from attendees that they would not behave inappropriately, a risk assessment should be carried out covering “eventualities stemming from all such forms of inappropriate behaviour”, trained staff should be at the event, and special training should be carried out for those conducting the risk assessment.

The appeal was dismissed.  Lane J said that “as a matter of common sense” this could not be right.  The monitoring standards as suggested by the claimant was an invitation to set the bar unreasonably high.  He stated that the claimant’s case involved viewing the party as a nightclub where there is an ever present risk of violence.  It was noted neither the claimant or her husband who was also present at the party complained about the behaviour of Mr Beilik prior to the incident.  The Court of appeal agreed with the Recorder that reasonable steps had been taken by CRUK, no duty of care was breached and negligence was not made out.

On vicarious liability it was found that Mr Beilik’s research activities with CRUK were not sufficiently connected with what happened at the party so as to give rise to vicarious liability.

Mr Kristian Lee Hanbury (Administrator of the Estate of Mr David Jack Hanbury Deceased) (1), and Mrs Hazel Raye Hanbury (2) v Hugh James Solicitors [2019] EWHC 1074 (QB)

The High Court has ordered Hugh James Solicitors to pay damages to the family of an asbestos victim for professional negligence in abandoning their personal injury claim. 

The deceased worked as an installation engineer for several different employers.  After his death an inquest concluded that he had died of asbestos related lung cancer.  The family of the deceased instructed Hugh James Solicitors about a possible claim.  HJS instructed a medical expert, Dr Williamson, who concluded there was insufficient evidence to attribute an increased risk of lung cancer to previous asbestos exposure and that on the balance of probability the deceased’s lung cancer was caused by his cigarette smoking.  On the basis of the report HJS advised the claim could not proceed, and the limitation period expired shortly afterwards.

The family of the deceased brought a professional negligence claim against HJS for failing to provide the medical expert with the post mortem report and a mineral fibre analysis which was carried out on the deceased’s lungs.   The expert gave evidence that if he had seen those documents he would have concluded that the result clearly supported the attribution of lung cancer to asbestos and medical causation would have been established.

HJS admitted liability but denied that the claimant’s had lost anything of real value because of concerns about the witness evidence and because some of the deceased’s former employers did not have insurance or were no longer live companies.

It was held that (but for the solicitors admitted breach) a favourable medical opinion would have been obtained, and that it was likely that various employers would have co-ordinated a response to the claim apportioned between them on a time exposed basis.  There were good prospects of the claimant’s recovering damages against some or all of the live defendants.

Concern was expressed about the evidence given by Simon Ellis, Partner and Head of the Asbestos Team at HJS, which departed significantly from his written evidence at trial.  It was noted that in a letter sent to the litigation insurer the case was not continuing due to unfavourable medical evidence, and no other reason was provided.  He conceded that it was his decision not to continue with the claim, and that had he received favourable medical evidence the claim would not have ended when it did.

Damages were awarded in the sum of £217,000, but reduced by 20% for contributory negligence for smoking, 25% for apportioned risk of splitting compensation between multiple insurers, and a further 20% that the case may not have settled at all.

Christopher Goldscheider v Royal Opera House Covent Garden Foundation [2019] EWCA Civ 711

The claimant was a viola player who brought a claim against the defendant opera house for personal injury.  It was his case that he had developed acoustic shock in September 2012 as a result of being exposed to noise in the course of rehearsing Wagner’s opera Die Walkure.

In the first instance judgment was given in favour of the claimant on the basis the defendant should have enforced the wearing of hearing protection at all times for members of its orchestra.

The Royal Opera House appealed on the basis it was not reasonably practicable and would have catastrophic consequences for the performance of orchestral music in the UK.  The Association of British Orchestras, the Society of London Theatres and the UK Theatre Association all obtained permission to intervene in the appeal and support the Royal Opera House.  The case was listed as one of The Lawyers Top 20 cases of 2019.

The appeal was dismissed but for reasons different to those put forward in the first instance.

Crucially, the Court of Appeal reversed the decision on hearing protection and held that the Royal Opera House’s approach to encouraging the wearing of hearing protection as much as possible, but ultimately leaving it up to musicians as to when they did during the course of performing, was a reasonable one.

However, the court found that after reporting the incident to the Royal Opera House it had reconfigured the orchestra in order to reduce noise levels in the location in the pit where the claimant was sitting.  The court concluded this could have reasonably been done at an earlier stage, and therefore, the defendant had not taken all reasonable steps to reduce noise level on this occasion.

Further, it was held that the burden of proof was on the defendant to show the breach was not causative of the injury and that the defendant had failed to do so in this case.

The defendant has made an application for leave to appeal to the Supreme Court and a decision on this is awaited.

QUANTUM

Alistair Craig Inglis v Ministry of Defence [2019] EWHC 1153 (QB)

Former Royal Marine, Alistair Inglis, was awarded £545,766.60 from the Ministry of Defence after it was proven that his hearing loss was caused by sustained and unprotected exposure to extraordinary noise levels during combat and in training.

The MoD had already admitted liability for Mr. Inglis’ injuries ahead of the hearing on an 80/20% basis in favour of Mr. Inglis, acknowledging that it had failed in its duty of care during his years in service.

The issues to be decided, and their decisions, were:

  1. Whether the claimant left the Royal Marines because of his hearing loss.  This was for the claimant to prove on the balance of probabilities, rather than leaving to take up more lucrative employment in the maritime service industry as alleged by the defendant;

It was accepted that the claimant left the Marines before he failed a hearing test which he felt would have adverse implications for his future career within the Marines.  Although there were some areas he could be redeployed there were no vacancies at that time.

  1. The extent of the hearing loss;

The claimant’s evidence was accepted that he struggled with many every day activities, hearing his children, the television and telephone, sleeping due to the impact of tinnitus etc.  Hearing aids had assisted but in limited ways.

  1. Whether the claimant is disabled;

Because it affected the kind of paid work the claimant could do it was considered the claimant was disabled.

  1. Whether loss of earnings should be calculated as a Smith v Manchester or the annual shortfall in his earnings;

The Judge concluded this was not a case where a Smith v Manchester award was appropriate and the usual calculation method was the Ogden Tables.

  1. Whether the damage stopped when the noise ceased exposure ceased or whether the damaging effect of the exposure continued; and

No finding found as insufficient evidence but thought not to be material in any event.

  1. The amount of damages.

General Damages

£25,000

Loss of congenial employment

£8,000

Loss of earnings to date

-£24,133.30

Loss of benefits to date

£7,662.36

Future Loss of earnings

£257,518

Future Loss of benefits

£562.12

Future loss of pension

£351,313

Future claim for hearing aids

£54,919

The judge considered the detrimental effect of Mr. Inglis’ hearing loss on his civilian career options, taking into account approximately 20 years of reduced earnings over the remainder of his working life, as well as a significant loss of pension. Mr. Inglis will also have to pay for essential, costly hearing aids for the rest of his life.

X v Buckley [2019] Unreported

A victim has been awarded damages of just under £87,000 from a man who raped her after they met on a night out.

Wayne Buckley is currently serving 8 years in prison following being convicted of rape at trial in May 2016.  Buckley owned a construction firm and therefore, had the means to enable the claimant to pursue a claim against him directly. 

It is rare for victims of rape or sexual assault to bring a civil claim for damages against their attacker directly.  This is believed to be one of the biggest civil payouts for rape in England and Wales.

The victim suffered a nervous breakdown, was hospitalised for 12 weeks and attempted to take her own life.  She left her job as she was unable to cope.  She was awarded £50,000 for the shock, terror, pain, and physical injury, as well as aggravated damages for injury to her dignity.  She was awarded £36,000 for loss of earnings.

This should be compared to the £11,000 the victim received from the CICA which was the maximum award available.

PROCEDURE

Bonnie Lackey v Mallorca Mega Resorts SL (1) and Generali Espana De Seguros Y Reasecuros SA (2) [2019] EWCH 1028 (QB)

The English claimant was injured whilst staying at a Spanish hotel.  She was in the wave pool in a large inflatable ring.  She was upended when the wave machine started in the shallow end.  She landed awkwardly on her head and neck, sustaining a fracture which rendered her tetraplegic.

The hotel had public liability insurance but the limit was less that the anticipated value of the claim.  Under Spanish law the claimant had a direct right of action against the insurer.  She commenced proceedings in England against the hotel and their insurer relaying on Article 11 (an insurer may be sued in the Member State courts where the claimant is domiciled) and Article 13 of the recast European Regulation 1215/2012.

Generali acting under the terms of the insurance contract took over conduct of the claim on behalf of itself and its insured.  DAC were instructed and filed an Acknowledgement of Service  which accepted the jurisdiction of the court. Because of the limit of the insurance Keoghs were instructed separately on behalf of the hotel.  They took a different view and applied for relief from sanction for the late application for a declaration that the English court did not have jurisdiction over the claim against it.

The application concerns only the place (and therefore the procedural law) of trial.  However, practically for the claimant, a tetraplegic, there were also implications of having to travel to Spain to attend hearings which would put her at a disadvantage.

Relief from Sanction – the application was made a month late, which was quite a long delay considering Denton principles.  There was a change of solicitors and a change of opinion as well as an intervening Christmas break. The claim is valued at £9million and jurisdiction is a central, important and moderately complicated issue.  Therefore, relief from sanction was granted.

It was held the Regulation allowed for an “anchoring” claim to be made in England against the Spanish insurer, and Article 13(3) then allows a “parasitic” claim against the Spanish insured to be added.  The objective of this is to discourage multiplicity of proceedings and the possibility of conflicting judgments.

The claimant was also entitled to bring her claim against the Spanish hotel in England on the basis she is a consumer.

Master Harry Roberts (a child and protected party by his mother and litigation friend Mrs Lauren Roberts) v The Soldiers, Sailors, Airmen and Families Association – Forces Help (1) and The Ministry of Defence (2) and Allgemeines Krankenhaus Viersen GMBH (Part 20 Df) [2019] EWHC 1104 (QB)

This case concerned a child born at a German Hospital providing services to UK Armed Forces (with whom his father served at the time).  Negligence causing hypoxic brain injury was alleged against the midwife, with the Association and Ministry of Defence being vicariously liable for her acts or omissions.  Both defendants issued a Part 20 claim against the hospital seeking contribution in accordance with the Civil Liability (Contribution) Act 1978 in the event they are found liable.

The hospital contended that the choice of law rules would have applied German law which would have rendered any claim time barred.

This was a trial of the preliminary issue.  The court upheld the decision in Arab Monetary Fund v Hasim (No. 9) 1994 concluding that the Contribution Act 1978 has overriding effect and applies automatically to all proceedings brought in England and Wales, without reference to choice of law rules.

Vedanta Resources Plc and Another v Lungowe and Others [2019] EWCA Civ 1528

The Supreme Court has given judgment in a high profile appeal which raises important issues regarding jurisdiction and potential liabilities of parent companies in respect of damages caused by their subsidiaries.

The claims are brought on behalf of 1826 Zambian citizens who allege they have suffered damage as a result of toxic discharges from one of the world’s largest copper mines.  The mine is run and operated by KonKola Cooper Mines Plc (“KCM”), the second defendant, a Zambian company.  The first defendant, Vedanta Resources Plc, is the parent company of KCM and domiciled within England. The allegations are that KCM are both negligent and in breach of statutory duty according to Zambian law.  The allegations against the Vedanta are that it didn’t exercise sufficient control over KCM.

The claimant’s issued proceedings against Vedanta on the basis they are domiciled within England.  They then applied for permission to serve outside jurisdiction on the basis KCM were a necessary or proper party to the proceedings.  Both defendants challenged jurisdiction.

The defendants argued that there was no real triable issue against Vedanta and that Zambia was the proper place to bring the claim.

The Supreme Court dismissed the appeals on the basis there was no abuse of EU Law, Vedanta would arguably owe the claimant’s a duty of care, and that the judge was entitled to find that there was a real risk the claimant’s would not be able to obtain substantial justice since legal aid would not be available, CFA’s are illegal and the claimants are too poor to fund litigation.  Finally that Zambia lacks legal teams of sufficient size and experience to pursue mass claims such as this.

The claims can proceed against both defendants in England  This could have wide implications for client’s who are domiciled in the UK but operate through subsidiaries overseas.

COSTS

Ferri v McGill [2019] EWHC 952 (QB)

The claimant was injured when he was struck by a car door when riding his bicycle. He suffered injuries to his abdomen, arm, back, neck and left shoulder.  He was a self-employed builder and decorator and was off work for a week and had some reduction in his ability to work.  He instructed a firm of solicitors who obtained a report from a GP which anticipated a full recovery in 4 months. The claimant’ claim was initially run through the portal and liability was admitted.   When the defendant made a settlement offer of £1,500 the claimant instructed new solicitors who no longer considered the claim suitable for the portal. The claim settled without the need to go to trial in the sum of £42,000 and the claimant sought more than fixed recoverable costs.

There are two reasons for exiting the portal; the claimant notified the defendant that the claim has been revalued at more than the protocol upper limit, or the claim is unsuitable for the protocol, i.e. due to complexity.  The rules mandate fixed recoverable costs in such cases, subject only to judicial allocation of the claim to the multi-track, or rule 45.29J(1), exceptional circumstances.

In the first instance the Master held that a low bar should be set for exceptional circumstances, and that these were those which took the case out of the “general run of the type of such case”.

The issue at appeal was whether the Master had been right in her test of exceptional circumstances.  The Court of Appeal stated the test requiring exceptional circumstances was already a high one.  The policy of the fixed cost regime was to provide certainty and solicitors were expected to take the rough with the smooth. Allowing for exceptional circumstances required a strict regime, and not a low bar.  The case was sent to be reassessed by another Master.

Calonne Construction Ltd v Dawnus Southern Ltd [2019] EWCA Civ 754 (Hambleton LJ, Flaux LJ, Asplin LJ)

The appellant appealed against a decision that a Part 36 offer made prior to service of the counter claim was valid.

The appellant had engaged the respondent to carry out refurbishment works at a residential property.  The works were subject to delays, there was water ingress, and the parties fell into dispute.  Before serving the defence and counter claim the respondent made a Part 36 offer which indicated it would accept £100,000 in settlement of both the claim and the unissued counterclaim, the offer included that interest would accrue at 8% per annum after expiration of the offer.

Following trial, judgment was entered for the respondent in the sum of £116,616.89 plus interest and costs as they had beaten their Part 36 offer.

Permission was granted to appeal. The appeal was made on the basis of the decision in the Court of Appeal case of Hertel & Another v Saunders [2018] which found the inclusion of a counterclaim which had yet to be pleaded was fatal to the validity of the Part 36 offer.  It was argued that Part 36.7 provides that a Part 36 offer can be made at any time, including before the commencement of proceedings, therefore the offer could not be invalid because the counterclaim had not been pleaded.

It was held the comments in Hertel were made obiter.  The express purpose of Part 20 is to enable counterclaims and other additional claims to be managed in the most convenient and effective manner. Nothing in Part 20 exempts it from the provisions of Part 36.  Accordingly, the proposed counterclaim must be treated as if it were a claim for the purposes of Part 36, and in light of the fact a party is entitled to make a Part 36 offer at any time including before commencement of proceedings, it cannot be correct that a Part 36 offer cannot be made in a counter claim before it is pleaded.  To rule otherwise would mean a defendant would have to go to the expenses of pleading the counterclaim to make a Part 36 offer.

Nicky Herbert v HH Law Ltd [2019] EWCA Civ 527 (Sir Terence Etherton MR, Lindbloom LJ, Asplin LJ)

A firm of solicitors appealed against a High Court assessment of its bill of costs in respect of the decision regarding the success fee and ATE premium.

Ms Herbert brought a claim for personal injury following a road traffic accident on 15 October 2015.  She entered into a CFA with HH on 17 March 2016 which allowed for 100% success fee with the maximum amount they could recover from her being set at 25% of the total of any damages.  The claim was settled by way of a Part 36 offer in the sum of £3,400.  Ms Herbert received the net sum of £2,221.79.

Ms Herbert subsequently brought a claim against HH challenging the costs of her claim, in particular that HH had failed to conduct a litigation risk assessment to justify the level of success fee (although she did understand what the level was), that the level was out of step with the 12.5% RTA fixed success fee under the previous regime, and that the ATE premium should be a solicitors disbursement.

In first instance the District Judge reduced the success fee to 15%.  He found there was no clear evidence of a risk assessment.  He could not accept that as a starting point HH had to charge 100% to ensure overheads and a reasonable level of profit is made.  The facts were straight forward and 12.5% was reasonable but allowed 15% as the solicitors had funded disbursements.  The ATE premium should have been included as a disbursement.

The decision was appealed and upheld by Mr Justice Soole.

The decision was appealed further.  HH commented that they were funding the appeal for the wider good of the profession in order to bring greater clarity to the law.

The Court of Appeal found that although the combination of the retainer, the CFA and the ‘What you need to know’ documentation considered by Ms Herbert gave her a clear and concise account of her exposure to the success fee, the wording of CPR 46.9(4) shows that it was envisaged that a success fee would be related to risk.  In this country in the context of a conditional fee agreement the success fee traditionally related to litigation risk, and that it would be unusual for it not to be.  It is insufficient that this is a business model for other competitors.

With regard to the ATE premium, case law indicated that a disbursement is qualified as a solicitors disbursement if it either was a payment which the solicitor was obliged to make whether the client put them in funds or not, i.e. court or counsels fees.  The client’s liability to pay the ATE premium arises from the contract of insurance, not from the contract with the legal representative.  The appeal was allowed here however, it was noted that this would mean the client would be unable to challenge the amount of the ATE premium in a Solicitors Act Assessment and that this is something the SRA may need to consider.

Bruce and Bruce-Daly v Thomas Cook Tour Operations (Unreported)

The claimant’s went on a Thomas Cook package holiday to Fuerteventura for 14 nights in January 2015.  Each claimant alleged they had gastroenteritis and brought proceedings for breach of contract for the alleged food poisoning contrary to the Package Travel Regulations 1992.

In September 2018, the claimant’s solicitors made an application to come off the record and from that point onwards the claimants failed to comply with the Order made on allocation.

In December 2018, the defendant applied to have the claim struck out for failure to comply with the court’s Order.  There were some administrative errors by the court which lead to some delay and an adjournment of the application.  However, the claim was finally struck out prior to the hearing of the application due to the claimant’s failure to pay the trial fee. 

The allocation Order specifically stated that if the trial fee were not paid the defendant could receive its costs.  The defendant submitted that under CPR44.15(c)(i) that its costs should be enforced and QOCS disapplied on the basis that the conduct of the claimants generally, including the non-payment of the trial fee, had obstructed the just disposal of proceedings.

The judge disapplied QOCS and awarded the defendant its full costs.

There is the opportunity therefore for defendants to disapply QOCS where claimant’s conduct falls short of what is acceptable, and with the likely increase in litigants in person this may be a consideration for defendants.

OTHER NEWS

Fatal Accidents Act 1976 amendments

There is a proposal for a remedial order to the Fatal Accidents Act 1978 to allow an award of bereavement damages to a new category of claimant which is being brought to implement the judgment in the Court of Appeal case of Jacqueline Smith v Lancashire Teaching Hospitals NHS Foundation Trust; Lancashire Care NHS Foundation trust; and the Secretary of State for Justice [2017].

The Court of Appeal held that section 1A(2)(a) of the FAA is incompatible with Article 14 read with Article 8 of the European Convention on Human Rights because they deny an award of bereavement damages to an individual such as Ms. Smith who had lived with the deceased as his unmarried partner for a period of over 2 years immediately prior to his death.

The award is currently set at £12,980 and is awarded to the wife, husband, or civil partner, to his or her parents, if he or she was legitimate; or to his or her mother if illegitimate.

The government proposes to amend section 1A of the FAA to make bereavement damages available to claimants who have cohabited with the deceased person for a period of at least two years immediately prior to death.  It also allows where the deceased was still married to a former partner, and not yet divorced, but had been in a new cohabiting relationship for at least two years, that the award should be divided equally between the eligible parties.

On the same issues of the bereavement award, there has been discussion about the level of the award, and pressure being placed on the government to increase this as it has remained at £12,980 for 6 years.  Northern Ireland have increased their award to £15,100 as of next month.

Potential expansion of MedCo

The Ministry of Justice is seeking views on an expanded role for MedCo as part of the whiplash reform to cover initial medical reports for all RTA claims up to £5,000.

The MoJ is developing a platform to enable unrepresented claimant’s to progress their own claim irrespective of whether they have legal representation.  The whiplash reform banned settling these claims without a medical report, and therefore, an expansion of MedCo is the next logical step.

The platform is planned to go live in April 2020.

Change of Discount Rate

Impending change, which must be concluded by 5 August 2019 means a focus on old Part 36 offers. 

For more information contact

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