Legal Watch:Personal Injury27th November 2014Issue: 042

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:

• Fraud/contempt of court• Damages/contributory negligence• Civil procedure/expert evidence• Damages/remoteness• ASHE update• Guidance for the instruction of experts in

civil claims

Fraud/contempt of courtThe number of cases in which insurers seek to penalise claimants for pursuing fraudulent claims is steadily increasing. The latest is Bate v Aviva Insurance UK Ltd [Lawtel 20/11/2014].

The claimant/respondent had brought proceedings against the defendant/applicant for an indemnity and damages after anaccidentalfireathisproperty.Hisclaimwasdismissedandhe was found to have been actively dishonest in various ways when presenting his claim. The Court of Appeal upheld that decision. The defendant sought to commit the claimant on the basisofthetrialjudge’sfindingsofdishonesty.Inparticular,italleged that he had created or colluded in the creation of false documentsinsupportofhisclaim,whichwerepreparedafterthe event as part of a dishonest scheme. It also alleged that the claimant had acted in contempt in relation to his disclosure obligations and that he had wilfully and deliberately interfered with witness evidence to increase his prospects of success. The defendant did not call any witnesses to give evidence in support of its application. The claimant gave live evidence to resisttheapplication.Inhisevidence,headvancedarevisedversion of events which had not been raised either at trial or on appeal.Atthetimeofthishearing,whichwasbeforethetrialjudge,hewas71andinpoorhealth.

The claimant denied the allegations made against him. He contendedthatitdidnotfollowfromthefindingsattrialthatthe defendant did not need to call witnesses to give evidence insupportofitsapplication,becausesuchacoursedeprivedhim of a chance to cross-examine important witnesses,contrary to Article 6 European Convention on Human Rights 1950.

The deputy High Court judge held that the claimant’s arguments were misconceived: it would be absurd for the court to have to revisit witness evidence it had already heard in order to arrive at the facts on which the instant application was based. The application for contempt formed part of the

02

underlying civil action and so the instant court should start with thosefindings. Itwas for thecourt to reconsider theprevious findingsof dishonesty,whichweremadeon thebasisof thecivilstandardofproofandask itselfwhether,after hearing the claimant’s evidence and submissions in the presentapplication, itwassurebeyond reasonabledoubtthat those findings were indeed correct. If it consideredthat what the claimant saidmight be true, he had to begiventhebenefitofthedoubtandcontemptcouldnotbeproved. It was clear that the allegations made in his live evidence were new allegations which gained no support from the documentary evidence. His evidence depended solely on an assertion which he had not made at trial. There wasnothinginhisfurtherevidencewhichcouldaffecttheviews set out in the trial judgment. In order to resist the committal application, he had changed his claims. Thosechangesdidnotovercomeatleastsomeofthedifficultiesraisedpreviouslyandtheywerequitedifferentinsubstancefrom what he had said throughout the proceedings and in evidence at trial. In the circumstances, the defendanthad proved contempt in relation to its allegation that the claimant had created or colluded in the creation of false documents insupportofhisclaim.However, ithad failedto prove beyond reasonable doubt that he had wilfully and deliberatelyinterferedwithwitnessevidence,orthathehadacted in contempt in relation to his disclosure obligations.

‘...the defendant had proved contempt in relation to its allegation that the claimant had created or colluded in the creation of false documents in support of his claim.’

But for theclaimant’spersonalcircumstances,namelyhisage,poorhealthandpreviousgoodcharacter,animmediatecustodialsentencewouldhavebeeninevitable.However,inallthecircumstances,theappropriatesentencewasoneofninemonths’imprisonment,suspendedfortwoyears.

03

Damages/contributory negligenceIn the case of Blackmore (deceased) v Department for Communities & Local Government [Lawtel 21/11/2014] the court was required to determine the issue of contributory negligence in a fatal accident claim arising out of the death ofthedeceasedasaresultoflungcancer,wheretheliabilityof the defendant employer had been admitted. The factor to be considered was the deceased’s history of smoking.

The deceased had worked for the defendant between 1966 and1986.Hehadstartedsmoking in1950,aged14,andcarried on until he died, aged 74. The medical expertsagreedthathisdeathwascausedbythecombinedeffectsofsmokingandexposuretoasbestos;however,therewasasignificantdifferenceofopinionastotherelativecontributionof those two causes. The defendant’s medical expert relied ontheconceptofrelativerisk,andproposedthattherelativeriskforsmokingwas9.1,whileforasbestosexposureitwas2.1,givingrisetoadeductionforcontributorynegligenceofat least 85%. The deceased’s estate’s expert emphasised that not only was the mechanism of the synergy between asbestos exposure and smoking unknown, but that anyprecise calculation based solely on analysis of the two factors had to be inaccurate, as there must logically beother factors at play, otherwise all individualswith similarhistories of smoking and asbestos exposure would die of cancer.

The defendant argued that where precise data as to contributionwasavailable,acommonsenseapproachhadtobetoapplythatdatawhencalculatingthecontribution,sothattherelativefiguresshouldbedirectlytranslatedintoafindingofcontributorynegligence.Itarguedthatitwouldbe wrong to apply a broad brush approach in any case where liability was established by a mathematical analysis of risk.

‘...any approach to assessing relative contribution or apportionment had to take into account the fact that cancer was an indivisible injury, and there were possibly other factors at play.’The County Court judge held that any approach to assessing relative contribution or apportionment had to take into account the fact thatcancerwasan indivisible injury,andthere were possibly other factors at play. Reliance could beplacedontheanalysisofrelativerisk.However,itcouldonly be used as a basic broad guide and with caution. In a case like the instant case, given the agreed view thathistorical lack of knowledge of the dangers of smoking required a deduction for contributory negligence from the mid-1970sonly,anycalculationshouldnotonlyignorethecontributiontoriskofsmokingbeforethen,butalsobuildintotheassessmentofrelativerisk,asagainstasbestos,theadditionalsynergisticeffectofthecombinationofasbestosexposure and tobacco for the 10 years preceding the mid-1970s. That simply could not be donewith the precisionput forward by the defendant’s expert. It would be wrong to proceed on the assumption that the precise calculation based on relative risk from smoking and exposure to asbestosproducedbyitsexpertwasasufficientlyreliablyaccurate assessment of the biological processes at play that it could translate directly into an apportionment of contributory fault. The court would proceed to use as

04

broad guidance as to relative contributions a relative risk for asbestos towards the bottom of the range of 2-5 and a relative risk for smoking between 5.5 and 9.1.

The defendant’s submission relied on the concept of blameworthiness as being no more than a statement of the extent to which the claimant contributed to the damage. Such an approach was wrong in principle, as it placedno extra weighting on the fact that a statutory duty was imposed upon the defendant and was breached. Parliament had placed directly on the employer’s shoulders the responsibility for ensuring compliance with statutory duties. Such duties bore in mind the cross-section of individuals whowouldbeaffectedbybreach,includingtheoccasionallycareless and those whose care for their own health could be seen as below that required. The consequences of the defendant’s breaches of duty should not be emasculated by ahighfindingofcontributorynegligenceonthedeceased’spart.

The risk from smoking in the instant case was probably betweendoubleandtrebletheriskfromasbestos,viewingthe assessment of relative risk in the round. The deceased was a smoker long before he commenced employment with the defendant and long before it was known to be a hazard to health. He did not have an extensive history of having been advised to stop smoking. He had tried to give up twice and eventually succeeded in cutting down. Havingconsideredall the relevant features, thedegreeofcontributory negligence could be assessed at 30%.

Further comment on this case will appear in the next edition of Legal Watch: Disease.

05

Civil procedure/expert evidenceIn last week’s Legal Watch: Personal Injury we reported the case of Jowari v NHS England. That decision has already been the subject of an appeal and is reported as NHS England v Jowhari [Lawtel 24/11/2014].

The claimant/respondent claimed that the defendant/appellant was in breach of statutory duty by temporarily removing him from the National Dental Performers’ List,which he alleged caused him to lose the opportunity to purchase a dental practice. His claim exceeded £2m,which was the revenue he contended that he would have generated at the practice if he had been able to buy it. At a case management conference, the claimant asked forthe appointment of a single joint accountancy expert; the defendant contended that both parties should have an expert. The Master was not persuaded that any accountancy expert was needed, but he did not want to exclude thepossibilityaltogether,soheorderedthat thepartiescouldapply for such evidence to be admitted by a later date. Just before that date, the defendant applied for permission toadduce the evidence of an accountant who specialised in dental practices. The application was not heard until about two weeks before the trial window. The judge refused the application: he decided that the defendant had left its application until the lastminute, and that theMaster hadbeen clear that no expert evidence was required and the defendant had misinterpreted his order to mean that the door was still open. He also decided that the report was not expert accounting evidence within the meaning of the Master’sorder,butwassimplyevidenceaboutthemarketindentalpractices,whichcouldbedealtwithintheclaimant’scross-examination.

Allowingtheappeal,theCourtofAppealheldthattheMasterhad allowed the possibility that the parties would apply for permissiontoadduceexpertaccountingevidence,andhehadsetatimetableforthat,withwhichthedefendanthadcomplied. It was not its fault that it had taken several weeks for the matter to be listed. The judge should not have been

influencedbythetermsoftheMaster’sorder;thefactwasthat the Master had left the door open for an application. Only a small part of the report could be described as expert accounting evidence. Other parts of it were accounting evidenceinabroadsense.However,allofitwasgivenbyacharteredaccountant.Overall, thereportwaswithin thescope left open by the Master. Therefore the judge’s reasons for excluding the report were wrong.

‘The report was an expert report. It would be for the trial judge to decide what weight to give its contents’The matter would be considered afresh. The report was an expert report. It would be for the trial judge to decide whatweighttogiveitscontents.Itwasathinreport,notwell resourced or referenced. The burden of proof was ontheclaimant,andhisevidencedidnotcondescendtodetail.Thereportwouldbehelpfulinfindinginadequaciesin his evidence. The report could materially add to the defendant’s case at trial. It should not be denied the opportunitytoadduceit,eventhoughitmightnotaddvery much. The Master had rejected the idea of a single jointexpert.Iftheclaimanthadwantedsuchanexpert,then he should have appealed against the Master’s order. He did not raise that issue before the judge. It was too latetoresurrectit,especiallyasitwouldresultinthelossofthetrialdate,whichthecourtshouldbeveryslowtocountenance.

06

Damages/remotenessIn Yapp v Foreign & Commonwealth Office (2014) EWCA Civ 1512 we have a rare example of a case looking at remoteness of damage in a personal injury claim.

The claimant/respondent had been appointed to the post of High Commissioner in Belize by the defendant/appellant. Ten months after commencing his post, the defendantreceivedallegationsinconfidencethattheclaimanthad(i)sexually harassed women at social events and had behaved in a manner likely to damage the reputation of the United Kingdom;(ii)bulliedandharassedstaffmembers.Itwithdrewtheclaimantfromhisroleonthebasisofthefirstallegation.That allegation was later found to be unsubstantiated. The claimant received a written warning in respect of the second allegation. He became depressed and remained unable to work for several years until his retirement. The judge concluded that the decision to withdraw the claimant amounted to a breach of contract and a breach of the defendant’s duty of care and that those breaches had caused the claimant’s depressive illness.

Thedefendantappealedandsubmitted that (1) the judgehad applied the wrong test to the question of whether the claimant’s withdrawal was fair; (2) even if his illness wascausedbythebreachofcontractorbreachofdutyofcare,it was too remote to attract damages.

Allowingtheappealinpart,theCourtofAppealheldthatthejudge had recognised that the defendant enjoyed a broad discretion whether to withdraw a post-holder for operational reasons and that sometimes speed would be important and preclude an effective investigation. That was notinconsistentwithhisfindingthatthewaythatthatdiscretionwas exercised in the claimant’s case was unfair. It had been unnecessary for the defendant to act as precipitately as it did,withoutmakinganyfurtherinquiriesandwithoutevenputting the allegations to the claimant. The judge had also beenentitledtofindthatifthedefendantwasgoingtotakesuchadrasticstep,itshouldhavefoundawayofdealingwiththeissueofconfidentiality.Itcouldhavedisclosedthe

contentoftheallegationswithoutrevealingtheirsource,orit could have sought consent to disclosure.

Withregardtotheissuesofforeseeabilityandremoteness,the following propositions were established from case law:

• Inconsidering,inthecontextofthecommonlawdutyofcare,whetheritwasreasonablyforeseeablethatanemployer’s acts or omissions could cause psychiatric injury,suchaninjurywouldnotusuallybeforeseeableunless there were indications of some problem or psychological vulnerability on the part of the employee.

• That approach extended to cases where the employer hadcommittedaone-offactofunfairness,suchastheimpositionofadisciplinarysanction.However,thatwasnot an absolute rule and each case turned on its own facts.

• In claims for breach of the common law duty of care it was immaterial that the duty arose in contract as well as tort: they should be treated as covered by tortious rules. In order to establish that the duty was broken it was necessary to establish that psychiatric injury wasreasonablyforeseeable;ifitwas,noissueastoremoteness could arise.

• In claims for breach of the implied duty of mutual trust andconfidence,orofanyexpresscontractualterm,thecontractual test of remoteness would be applicable.

07

‘...it would be exceptional for an apparently robust employee, with no history of psychiatric ill health, to develop a depressive illness as a result of even a very serious setback at work.’Inprinciple,anemployer’sconductmightbesodevastatingthat it was foreseeable that a person of ordinary robustness mightdevelopadepressiveillnessasaresult.However, itwould be exceptional for an apparently robust employee,with no history of psychiatric ill health, to develop adepressive illness as a result of even a very serious setback at work. There was nothing about the instant case that wassufficientlyegregioustorenderitforeseeablethatthewithdrawal of the claimant from his post would cause him a psychiatricinjury.Itwasnottantamounttodismissal,andhewastoldthatifexoneratedbytheinvestigation,thedefendantwoul try to find him another posting. The defendantwasattemptingtofollowdueprocess,despitetheunfairnessofwhat had occurred. The losses attributable to the claimant’s depression were not reasonably foreseeable and could not found a claim for breach of the common law duty of care. They were also too remote to be recoverable in his claim for breachofcontract,wherethetestofremotenesswasmorefavourable to defendants.

08

ASHE update

6115 60 70 75 80 90

2013 Frist release 8.50 9.21 9.73 10.29 12.02

Final release 8.50 9.22 9.73 10.29 12.02

2014 First release 8.55 9.23 9.72 10.21 11.94

On 19 November the ONS issued the latest set of ASHE data.

CommentNotforthefirsttimeweseeareductioninthehourlyrateson which claimants’ periodical payments will be calculated: thistimeinthecommonlyused75thand80thpercentiles,as well as the 90th.

This is particularly surprising given the news from the National Joint Council on 14 November 2014 that the Spinal Point 8 rate on which gratuitous care claims are normally calculatedwillincreasefrom£13,321to£13,871,witheffectfrom 1 January 2015. This represents an increase from £6.92 perhourto£7.21,producinganethourlyrateof£5.41.

09

Guidance for the instruction of experts in civil claimsWitheffectfrom1December,the“Protocol for the Instruction of Experts to Give Evidence in Civil Claims” is replaced by new guidelines which are available at http://www.judiciary.gov.uk. The 2014 guidelines emphasise the importance of pre-action protocols and they continue to draw a distinction between advisory experts and Part 35 experts.

There are lengthy sections re-emphasising the duties of the expert,aswellastheneedfortheinstructingpartytoensurethattheexpertcanfulfilallaspectsofhisinstructions,withinthe required timescales and ascertain the cost of doing so.

The guidelines cover the instruction of single joint experts and how single joint experts should conduct themselves.

From section 47 the guidelines deal with the form andcontent of experts’ reports. There is not a great deal that is new here but it is worth noting that it remains mandatory for an expert to state whether or not his views fall within a range of opinion. In the past this requirement has been morehonouredinthebreach,withfewexpertsaddressinga range of opinion. Section 63 of the guidelines is worth reproducing,as therehasbeen recentpublicityabout thenumber of experts who have been ‘persuaded’ to change their views as the result of pressure from those instructing them:

Experts should not be asked to amend, expand or alter any parts of reports in a manner which distorts their true opinion, but may be invited to do so to ensure accuracy, clarity, internal consistency, completeness and relevance to the issues. Although experts should generally follow the recommendations of solicitors with regard to the form of reports, they should form their own independent views on the opinions and contents of their reports and not include any suggestions that do not accord with their views.

Section 65 is also of interest in that it confirms that (e)xperts have a duty to provide answers to questions properly put. Where they fail to do so, the court may impose sanctions

against the party instructing the expert, and, if there is continued non-compliance, debar a party from relying on the report. Experts should copy their answers to those instructing them.

There are provisions governing the preparation of joint statements. Agendas are not mandatory but the guidelines anticipate their use in multi-track cases.

Theseguidelinesdonotdiffersignificantlyfromtheearlierprotocol but they do offer an opportunity to re-instil bestpractice both in relation to the instruction of experts and how the experts carry out their instructions.

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.

www.plexuslaw.co.ukwww.greenwoods-solicitors.com

Contact UsFor more information please contact:

Geoff Owen, Learning & Development Consultant

T: 01908 298216E: gro@greenwoods-solicitors.com

PublicationsIfyouwouldliketoreceiveanyofthebelow,pleaseemail indicating which you would like to receive.

Weekly:

• Legal Watch: Personal InjuryMonthly:

• Legal Watch: Property Risks & CoverageQuarterly:

• Legal Watch: Counter Fraud • Legal Watch: Health & Safety• Legal Watch: Professional Indemnity • Legal Watch: Disease

To unsubscribe from this newsletter please email:

crm@greenwoods-solicitors.com