Legal Watch:Personal Injury13th November 2014Issue: 040

Events

Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next few months:

The Major Bodily Injury Group (MBIG) | Spring Seminar | 28.04.15 | The Wellcome Collection, London

In This Issue:

• Damages/interim payments

• Health and safety/control of building site

• Damages based agreements (DBA)

Damages/interim paymentsSince the case of Eeles v Cobham (2009) reports relating to interim payment applications have been less frequent in high value personal injury cases where periodical payments are likely to be awarded. However, in Barrett v East Herfordshire NHS Trust [Lawtel 13/11/2014] the issue once again came before the court.

The defendant trust had admitted liability for claimant’s injuries caused by a failed tracheostomy. The procedure had left him with brain damage, physical and neurological problems, and very limited eyesight. As a result he was not able to return to his home and had been living in a care home. His wife also lived in the care home because of a terminal degenerative illness. The claimant did not have capacity to make decisions about his claim. A case manager was appointed. She assessed that the couple’s former home would never be suitable for them again, and that a different house should be purchased. The trust made an interim payment of £350,000 and a bungalow two miles from the care home was purchased. Thereafter planning permission was obtained to adapt it to suit their needs. However, the claimant’s wife’s deteriorating condition by then meant that she could not leave the care home, so the plan was for the claimant to move there without her, which he wished to do. He asked the trust for a further payment of £450,000 for the adaptations to the bungalow. It refused, and the claimant made the instant application.

The claimant argued that he had a real need for a capital payment, as although his experience in the care home had been positive, he wanted to resume a life in which he was free to do as he chose. The defendant submitted that the application was premature, and that the claimant was better off at the care home with his wife.

02

‘The size of the interim payment relative to the likely damages would not fetter any future periodical payments...’Allowing the application, the High Court judge held that there was a need for the capital sum at this point. The claimant had been independent at the time of the negligently-conducted procedure. He had been at the care home for three years. It was not clear how well he would manage in the community, but it was what he wanted. His wish was to eat when he wanted to, to live informally and with freedom, to be able to have friends and family to visit, and to get about in the community. He was 56 years old; he should not have to wait longer to do that. In terms of the claimant living further away from his wife, her health was deteriorating and the he found it hard to see her. The size of the interim payment relative to the likely damages would not fetter any future periodical payments; nor would the trial judge be inhibited from taking a different decision. By then, probably a year and a half away, he would be able to tell if the move to the bungalow had been successful. The interim payment would constitute a reasonable proportion of the damages.

03

Health and safety/control of building siteCivil liability for personal injury resulting from work on a building site is invariably determined by the degree of control exercised by one or more parties. The case of Eze and another v Health & Safety Executive (2014) EWHC 3474 (Admin) is therefore of interest.

The appellant husband and wife owned a property which was being converted from offices to flats. The respondent’s inspectors visited the site on a number of occasions and formed the view that the works were being carried out in a dangerous fashion. It therefore issued prohibition notices under the Health and Safety at Work etc. Act 1974 in respect of various activities under the appellants’ control which the inspectors considered involved a risk of serious personal injury. An employment tribunal affirmed the notices.

The appellants appealed and submitted that S2 and S3 of the 1974 Act imposed duties on a single person with unified control of the premises while S4 imposed them on various persons with divided control, and although S2 and S3 were referred to specifically in each prohibition notice while S4 was not, the tribunal had focused on whether they had divided control.

Allowing the appeal in part, the High Court judge held that the tribunal had undoubtedly focused on whether the appellants each had some measure of control over the works, rather than whether both of them had joint sole control of what happened on site. The difference in practical terms might be slight, but there was a difference. Given that that was not the basis upon which each notice was formulated, the basis being the sole control to be found in S2 and S3, that had been a misdirection on the issue the tribunal had to determine. It had had to decide whether the appellants each were in sole control of the site, which would require a finding of joint sole control rather than a finding that each had some degree of control over the operations being carried out there. However, the tribunal would have still reached the same conclusion concerning the husband if it had not misdirected itself. Had it asked itself whether the

totality of the findings of fact justified the conclusion that he was in sole control of the site, the answer would plainly have been “yes”. There was no evidence that any other party seen present on the site was exercising any degree of control over the operations as a whole. The husband’s appeal was therefore dismissed. In contrast, the findings of fact did not support the conclusion that the wife had any control over the operations on site. There was no finding that she was ever at the site at any material time nor that she ever issued a direction, whether written or otherwise, in relation to the works being carried out. There was no evidential basis at all for concluding that she was in joint sole control of the site nor that she had some degree of control. Her appeal was therefore allowed.

‘There was no evidence that any other party seen present on the site was exercising any degree of control over the operations as a whole...’

The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 8 Bedford Park, Croydon, Surrey CR0 2AP. Parabis Law LLP is authorised and regulated by the SRA.

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Damages based agreements (DBA)DBAs have been permissible in personal injury cases since 1 April 2013 but there has been little, if any, take-up. They are a means of funding cases. Under a DBA, the claimant’s lawyer is not paid if they lose a case but may take a percentage of the damages recovered for their client as their fee if the case is successful. Before 1 April 2013, DBAs could not be used in civil litigation. The maximum payment that the lawyer can recover from the claimant’s damages is capped in personal injury cases at 25% of damages (excluding damages for future care and other future losses). Successful claimants using DBAs recover their costs from defendants in the usual way, but the claimant would be responsible for paying from their damages any shortfall between the solicitors’ costs paid by the losing defendant and the agreed DBA fee and would also be required to pay any shortfall in respect of disbursements.

During 2014 consideration was given to the possibility of increasing the use of DBAs by permitting a ‘hybrid’ version which combined some features of a CFA or other methods of funding. However, on 10 November it was confirmed that hybrid DBAs are not to be permitted.

This makes it unlikely that DBAs will be used extensively in this area of litigation and that CFAs will predominate.