Last updateTue, 24 Feb 2015 5pm

12 King's Bench Walk

12 King's Bench Walk

Fixed costs regime; road traffic accident; non-road user; pre-action protocols; public liability claims, simple fast-track claims

This decision provides important clarification as to the scope of the fixed costs regime (FCR) at CPR Part 45.

Shoulder dystocia; secondary victims; psychiatric injury; destruction of medical records

In this case, the infant claimant had suffered a brain injury during her protracted birth in 2011. She was a very large baby and suffered (the claimants argued) a shoulder dystocia, meaning that her shoulders got stuck in the birth canal. As a result of this she suffered a hypoxic insult to her brain. The two other claimants were her mother and grandmother, who sustained psychiatric injury as a result of the birth.

Duty of care; A&E; head injury; waiting times

In Darnley v Croydon Health Services NHS Trust [2017] the court looked at what, if any, duty is owed by a receptionist of an A&E department to a patient in respect of the provision of information. By a majority it was held that no duty is owed to provide correct information about waiting times.

Contaminated food; package travel holidays; reasonable care; transfer of goods

This important package travel case represents a significant coup for claimants in the context of food poisoning cases. Although the package travel industry will be disappointed by the court’s decision, comments in the judgment suggest a demanding approach to establishing causation on the evidence.

Court fees; limitation period; striking out; abuse of process

In the professional negligence case of Lewis v Ward Hadaway [2015] several claims were held to be statute barred as a result of underpayment of court fees.

Vicarious liability; wrongful conduct; close connection test; lack of evidence

In Cox v Ministry of Justice [2016] and Mohamud v WM Morrison Supermarkets plc [2016] the Supreme Court in effect relaxed the criteria for vicarious liability. The facts of Mohamud (where a supermarket was held liable for an unprovoked assault perpetrated by one of its kiosk attendants on a customer) suggest that nearly all torts committed on the employer’s premises during work hours would satisfy the ‘close connection’ test.

Contributory negligence; Occupiers Liability Act 1984; dangerous state of premises

On the 10 September 2010, while wheeling his bicycle across an ornamental footbridge in one of the defendant’s public parks, the claimant fell from the bridge into the stream below and suffered serious injury.

Negligence; contribution to loss; multiple injuries

Assume an accident involving a neck injury to a blameless claimant led to a complete spinal cord injury that with proper treatment would have been far less serious. Historically the insurer paid out, and if the hospital had been negligent, well, that would be no concern of the claimant’s, and the insurer’s view would be that it wouldn’t be cricket to seek a contribution from the NHS. But no longer.

Road traffic accident; foreseeability; breach of duty; Highway Code

Valley Road in Streatham is long and straight, largely residential in character albeit with some commercial premises on it, and it bears a speed limit of 30mph. On a clear evening with good visibility in June 2008 the defendant was travelling home along the road on his 125cc motorcycle. He was travelling at or slightly below 30mph.

Asbestosis; asbestos exposure; liability; actionable damage

The Court of Appeal decided that a defendant was liable to compensate a claimant for a 2.3% contribution to his asbestosis in Carder v The University of Exeter [2016].

Late surveillance footage; disclosure; fraud; expert evidence; adjournment

This case is an important illustration of the tension between the imperative of procedural discipline on the one hand and the inclination to permit deployment of surveillance evidence to expose potential fraud on the other.

Insurers; vehicle loss; allegations of fraud; acknowledgement of service

Lord Justice Vos said in Gentry v Lee Miller [2016] (para 34):

Landlords’ liability; injuries arising out of latent defects

This important case resolves (for the time being at least) the question of whether a landlord’s liability under the Defective Premises Act 1972 (DPA) extends to latent defects.

Vicarious liability; breach of duty; protection for victims of tort; employment relationship

Who would have thought a generation ago that the prison service would be held vicariously liable for the negligence of a prisoner? Yet in Cox v Ministry of Justice [2016], a prisoner working in the prison kitchen negligently injured a member of staff, and vicarious liability followed, showing just how far these principles have developed in recent years. Coupled with the parallel decision of the Supreme Court in Mohamud v WM Morrison Supermarkets [2016] and its decision in Woodland v Essex County Council [2013] which significantly extended the scope of the principle of the non-delegable duty of care, it is clear that we are in an era where it will be very difficult for insured economic entities to avoid compensating accident victims by passing the blame entirely onto a sub-entity or employee, especially one without insurance. Yet in reality vicarious liability is expanding in scope as and because the world of employment has been changing, but it has been keeping true to its original rationale of risk allocation as between innocent people – the employer and the victim of the employee’s tort.

Section 41 Highways Act 1980; duty of repair; breach of duty; contributory negligence

The recent High Court appellate decision in the case of Craig Rollinson v Dudley Metropolitan Borough Council [2015] addresses the important question of ‘whether highway authorities are under a duty to keep all roads, pavements and footpaths throughout England and Wales free from moss and algae’?

CFAs; retrospective recoverability of success fees; back-dating

This costs appeal is notable for the relatively benign approach taken to a retrospective CFA.

Expert evidence; road traffic accident; motorist duties; accident mathematics

At approximately 6pm on 12 January 2010 the claimant, Mr Horner, was struck by the Miss Norman’s vehicle as he was crossing the westbound carriageway of the A4 Colnbrook Bypass. He suffered serious injuries which left him with no recollection of the accident.

Strike out; admission of liability; conflict of interest; solicitor default

When is it appropriate to strike out a claim in which liability is admitted?

Duty of care; providing accurate waiting times

Mr Darnley was attacked by persons unknown and struck on the head. He felt unwell. He was persuaded to go to hospital. He was booked in, but left 19 minutes later, without having seen a clinician. He says he was told that he would be waiting 4-5 hours, the hospital evidence was that a triage nurse would have given an estimate of 30 minutes but the court accepted that the 30 minute estimate was not given. The maximum allowable time for seeing Mr Darnley would have been 30 minutes. Sadly Mr Darnley’s condition deteriorated. The judge held that (a) if Mr Darnley had been told of a 30 minute wait then he would have remained at hospital for treatment (b) on the agreed causation evidence Mr Darnley would then have been treated appropriately promptly at hospital and (c) consequentially made an essentially full recovery but (d) the nature of Mr Darnley’s presentation at hospital was not such as to have alerted non-clinical reception staff to the presence of a condition so serious that it was necessary to bring it to the attention of a triage nurse. So the core issue was this: was there a duty of care owed by a hospital to provide appropriate information as to waiting times? The judge found that there was no duty of care on the staff to inform Mr Darnley of the 30 minute wait.

Liability in negligence for the mentally ill; the duty and standard of care applicable

The claimant (C) was a young man who sustained extreme burns as a result of the actions of his uncle (V).

Jackson reforms; additional liabilities; expert reports; factual evidence

This case is the first reported decision on the recovery of additional liabilities taken out after the implementation of the Jackson reforms on civil funding.

Public authority; duty of care; acts or omissions

HHJ Cotter QC followed the important line of legal authorities which significantly restrict the circumstances in which a public authority owes a duty of care in respect of omissions (non-feasance). The case was brought against Devon County Council as highway authority. However the principles applied have a broader application.

Patients’ rights; doctors’ duties; consent test

The appellant, Nadine Montgomery, sought damages on behalf of her catastrophically injured son, Sam, born on 1 October 1999 at Bellshill Maternity Hospital, Lanarkshire, alleging negligent care provided by her obstetrician Dr McLellan during her first pregnancy and labour.

Vehicular trespass to the person; battery; self-defence; ex turpi causa; volenti non fit injuria

This case provides an enlightening illustration of the liability principles applicable when a driver uses their vehicle deliberately to inflict force on another person.

Causation; multi-defendants; asbestos

The High Court ruled on the principles of causation to be applied to a multi-defendant case of asbestos-induced lung cancer. Mr Justice Jay decided that the modified Fairchild test of causation applied to lung cancer cases and that employers were liable only to extent of the risk created.

Limitation; Civil Liability (Contribution) Act 1978; date cause of action accrues

This case determined a short but important point as to when the limitation period runs (and therefore expires) in respect of a claim under the Civil Liability (Contribution) Act 1978.

Lucy Boyle outlines the details of the new compensation system for asbestos victims

The Diffuse Mesothelioma Payments Scheme (the scheme) has been making payments to eligible mesothelioma sufferers since July 2014. The scheme was established by the Mesothelioma Act 2014 (the Act) and is detailed in the Diffuse Mesothelioma Payment Scheme Regulations 2014 (the regulations). Gallagher Bassett is the scheme administrator.

Taking the strain; foreseeability in occupational stress claims

This case provides important confirmation of the difficulties in establishing liability for injury arising from occupational stress.

Negligent treatment of pre-existing paraplegia; establishing the appropriate counterfactual; whether credit should be given for care required in any event

This case considered the consequences of admitted negligence on a pre-existing (non-negligently-caused) disability.

Calculating future loss; Ogden

This judgment provides an interesting discussion of the tension between the judicial and statistical approaches to valuing quantum of future loss of earnings. After addressing the alternative approaches, Andrew Edis QC, sitting as a High Court judge, chose to use the Ogden tables but to apply a further discount to the relevant table B reduction factor.

Manual Handling Operations Regulations 1992; breach of duty

In this case the Court of Appeal considered whether Mrs Recorder Stocken had correctly dismissed a claim for damages for personal injuries suffered at work based on a breach of the Manual Handling Operations Regulations 1992.

Limitation; calibrating pre-knowledge prejudice

The time limit for bringing a claim for personal injury is three years from when the cause of action accrues (s11 Limitation Act 1980) or, if later, from when the claimant possessed relevant knowledge (s14 Limitation Act 1980).

Fatal Accidents Act; jurisdiction; assessment of damages

In this case the Supreme Court considered whether provisions of the Fatal Accidents Act 1976 applied to the assessment of damages where the substantive law governing the tort was German law.

Section 2 Mental Health Act 1983; duty of care; burden of proof

The claimant sustained his head injuries outside the accident and emergency (A&E) department at St George’s just before 16:30 on 15 April 2010. He had been taken there while en route from Wimbledon police station to Springfield University Hospital, pursuant to being ‘sectioned’ under s2 of the Mental Health Act 1983 (the MHA) as a result of a severe psychiatric disturbance – for which purpose he was, initially at least (until handed over to the NHS Trust at A&E), under escort by the police.

Assault; Human Rights Act 1998; police investigation

The case involved claims for declarations and damages by two of the victims of the ‘black-cab rapist’ John Worboys against the defendant Commissioner for failing to conduct an effective investigation into their allegations of sexual assault dating back to 2002 and 2007 respectively. Both women made complaints to the police who commenced investigations but failed to bring Worboys to justice until 2009.

Duty of care; assumption of responsibility; causation

Did the defendant college owe a 21-year-old student a duty of care for his catastrophic injury suffered on its premises during an events day organised and managed by the students?

Highways Act 1980; duty to maintain; section 58 defence

On 19 April 2009 the claimant tripped over a defect in the carriageway of Hargrave Road, in Archway, North London. The defendant was the highway authority for Hargrave Road, which was a residential street with residents’ parking bays on both sides. There were also a number of shops nearby. The claimant said that she fell as a result of a defect on the kerbside part of the carriageway. As a result of her fall, the claimant suffered an injury to her right foot and ankle, which required hospital treatment.

Fixed costs; fast track; exceptions

This case provides a salutary indication of the courts’ approach to what is likely to be an increasingly prevalent issue, namely claimants seeking to exit a fixed costs regime and thereby escape its restrictions.

Matthews v Collins & ors [2013] EWHC 2952 (QB) Disposal of histological samples; civil proceedings; fair trial

The seven defendants to this claim made an application to strike out the claimant’s statement of case as an abuse of process under CPR 3.4 (2) (b). They submitted that the conduct of the claimant and/or her solicitors, JMW, which resulted in the destruction of histological samples, was unreasonable and blameworthy such as to amount to an abuse of process. It was alleged that the destruction of the samples of lung tissue deprived the defendants of the opportunity to carry out further histological examination, giving rise to a real risk of injustice, such that a fair trial was no longer possible.

Andrew Hogarth QC analyses the recent approach of the courts to compensate primary and secondary victims

Most would agree that the approach of the courts to the recoverability of damages for what lawyers describe as ‘nervous shock’ is in a mess. The starting point for any discussion on the topic is the statement by Lord Wilberforce in McLoughlin v O’Brian [1983] that:

Relief from sanctions; CPR 3.9; overriding objective

Practitioners have had to adapt to a multiplicity of reforms to the civil litigation system over the past six months, the latest offering being the expanded portal to all road traffic accident, employers’ liability and public liability cases worth less than £25,000. It seems that yet more changes are on the horizon with the government’s consultation on reforming mesothelioma claims due to end on 2 October 2013.

Breach of statutory duty; emergency service; employer’s liability

These claims arose out of a mass explosion that occurred at a fireworks factory at Marlie Farm in East Sussex on 3 December 2006. Geoffrey Wicker, a firefighter, and Brian Wembridge, a retired firefighter employed as a video technician by the second defendant, were killed when an ISO container filled with fireworks exploded during a fire. Many others were injured.

Ex turpi causa; joint enterprise; recovery of damages

In the case of David Joyce, the Court of Appeal recently revisited the principle of ex turpi causa whereby a person cannot recover compensation where his cause of action is based on his own criminal or immoral act. This was a joint enterprise case. The first defendant (the driver), and the claimant were engaged in a theft of ladders, when the first defendant drove away at speed leading to the claimant falling off the steps at the back of the van. The first defendant was convicted of dangerous driving. The claimant sought to recover damages for his injuries.

Patrick Vincent and Tom Banks analyse the effect of costs budgets and the new case management powers

Surveillance is a familiar battleground for PI lawyers. But it does not need to be. It is just about the only effective weapon against fraudulently exaggerated PI claims. But its use also frequently promotes settlement by confirming to insurers the bona fides of a claimant. Good use of surveillance aids both sides in a claim and often leads to quicker and fairer resolution of the areas of dispute.

Employers’ liability; breach and causation; Personal Protective Equipment Regulations

This case provides a telling illustration of the stringency of the Personal Protective Equipment Regulations 1992 (the PPE Regulations) and the evidential difficulties a defendant is likely to face rebutting liability under health and safety regulations.

Third-party cost orders; disclosure

On 10 April 2013 the Court of Appeal handed down judgment in the conjoined appeals in Flatman v Germany and Weddall v Barchester Health Care [2013]. The appeal addressed the issue of third-party costs orders against solicitors. Rix LJ had taken the unusual step of allowing second appeals in what was ostensibly an appeal about disclosure, because of the impact it would have on the thorny issue of solicitors’ exposure for non-party costs.

Contemporaneous evidence; contributory negligence

In this case, it was held that an allegation of contributory negligence had to fail where contemporaneous reports of an incident had not criticised the claimant in any way, but had instead identified the failings of others.

Limitation; discretion; burden of proof

This case helpfully provides a final answer to the question whether a claimant seeking, under s33 Limitation Act 1980, to disapply the section 11 statute bar faces should face a very heavy burden in doing so. The answer, in short is, no.

Discount rate; Damages Act 1996; preliminary issue

In Harries v Stevenson [2012], a claimant tried and failed to escape from the arguably unjust effects that the 2.5% discount rate creates in the current economic climate. The case provides guidance on preliminary issue hearings and confirms that the approach of the Court of Appeal in Warriner v Warriner [2002] and Cooke v United Bristol Healthcare NHS Trust [2003] to s1(2) of the Damages Act 1996 remains good law despite the amendment of the Damages Act by the Courts Act 2003. Warriner, the first case to consider s1(2), and Cooke both involved an application by C to call expert evidence as to the appropriate discount rate. The Court of Appeal held in both that it was not appropriate to take account of a different discount rate or to call this evidence. Dyson LJ in Warriner set the test to be applied by the court when considering s1(2).

Interpretation of the Civil Procedure Rules; meaning of disease

In employer’s liability claims, the classification of an injury is particularly important when it comes to the assessment of costs. Mr Patterson (the appellant), or rather his solicitors and counsel, sought to argue that the non-freezing cold injury (NFCI) he suffered was in fact a disease and therefore, a success fee of 62.5% of his solicitors’ and counsel’s base fees ought to be recoverable on the settlement of his claim against the Ministry of Defence (the respondent). This was significant because, if the claimant’s injury could not be classified as a disease, the recoverable success fee would be only 25%.

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