Legal Watch:Personal Injury11th December 2014Issue: 044

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:

• Occupiers’ liability

• Damages/causation

• Civil procedure/litigation friend

• Civil procedure/evidence• Costs management• Jackson/Mitchell/Denton• From Plexus Law Scotland

Occupiers’ liabilityThe case of Edwards v Sutton LBC [Lawtel 10/12/2014] is of interest at two levels. First, it is an illustration of how an occupier may attract liability through a failure properly to assess a risk on its premises. Secondly, it shows the importance of calling live witness evidence, rather than relying on documents and hearsay evidence.

The claimant’s case was that after a bicycle ride with his wife they were returning to a car park and had to cross a narrow ornamental bridge which crossed a stream with rocks in. The water was about 1.1 or 1.2 metres below the surface of the bridge and was about half a metre deep. The bridge was more than a hundred years old and had a low parapet about 26-30 cm high. The claimant’s evidence was that he had been pushing his bicycle on his left ahead of his wife. They were in single file. On the bridge his bicycle started to fall to his left and he toppled over the parapet and into the water. He did not have a good recollection of the aftermath of the accident. The defendant’s case, based on reports from a local authority gardener, the ambulance crew and the hospital staff, was that the claimant had been riding his bicycle rather than pushing it. The defendant further contended that the bridge was reasonably safe; there had never been a previous accident or complaint; the bridge was ornamental and fitting guardrails would not be appropriate, although an engineering solution was possible.

Finding in favour of the claimant, the deputy High Court judge held that the written records from the gardener, ambulance crew and hospital staff were nearly contemporaneous to the accident but were hearsay. There were no witness statements from the makers and they had not been cross-examined. The court was therefore entitled to give them less weight. It was also not clear whether the ambulance crew were reporting what the claimant had told them or what the gardener had told them, or whether the hospital staff were reporting what he had told them or what the ambulance crew had told them, which would

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be multiple hearsay. The records had nevertheless been allowed into the trial bundle. The evidence had not been dealt with satisfactorily by either side, since the claimant and his wife had not dealt with it in their own witness statements when they must have realised that it contradicted their case. On the balance of probabilities the court accepted the evidence of the claimant and his wife that they had been pushing, and not riding, their bicycles. Their evidence had been straightforward and consistent. The claimant’s inability to recall the aftermath of the accident was not sinister. There was no proper basis for rejecting their evidence.

‘There had been no formal risk assessment of the bridge and no formal consideration of its safety.’The bridge gave rise to an obvious risk of injury, because it was narrow, had a low parapet and because of the transition from tarmac to the paved surface of the bridge. There was a risk that any injury would be serious because of the rocks in the stream. There had been no formal risk assessment of the bridge and no formal consideration of its safety. On the other hand there had been no previous accident and there were no formal safety standards relevant to such a bridge. The question was not whether the bridge was structurally sound as a bridge or garden ornament but whether visitors would be reasonably safe in using it. The court had to balance the risk of injury and its seriousness against the cost and feasibility of preventive measures. It was not suggested that the bridge should have been rebuilt to modern standards. However, there was a clear risk of serious injury which had not been identified and addressed. There was no duty to fit railings but, if that was not done, the local authority had to take other measures to protect visitors, namely warning of the low parapet and suggesting

alternative routes. That would not involve significant cost or reduce the amenity value of the bridge. The evidence was that the claimant would have heeded any warning.

The bridge presented an obvious danger but the claimant had not taken sufficient care for his own safety. In the absence of an exculpatory reason for his loss of balance, he had not shown the necessary degree of vigilance. He said that the bicycle had pulled him over, but did not explain why he had not let go of it. He was contributorily negligent to the extent of 40%.

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Damages/causationThe case of Walls v London Eastern Railway Ltd [Lawtel 10/12/2014] is a fairly typical example of an argument about causation of back problems in a claimant with pre-existing degenerative changes. However, it is of greater interest because of the judge’s criticism of the claimant’s medical expert.

The claimant, who was employed by the defendant, had been at a railway station attending a work-related health and safety course on 5 February 2009 when he slipped and fell. The defendant did not dispute liability for failing to grit the path leading to the station but did dispute the extent and nature of the injury. According to the claimant, he was walking down a slope and holding onto the rail but slipped and fell onto his left side. As the day progressed, the pain increased in his left thigh, lower back and hips. After the fall he was absent from work for two weeks. On 6 April, he was driven to hospital with great pain in his back and left leg. The information the claimant gave was inconsistent: his witness statement from 2012 stated that he had gone to the General Practitioner a couple of days after the accident as the pain had got worse. He had also stated that he visited hospital a few days after the accident rather than two months. At the trial, he acknowledged that that was incorrect. After returning to work, the claimant also claimed that he had been put on nightshift because it was less demanding on his back. However, his line manager gave evidence that he knew nothing of the claimant’s back problems. The defendant’s medical expert gave evidence that the claimant was suffering from a long-standing, degenerative condition of the lower spine, which was supported by MRI scans. The evidence of the claimant’s medical expert was that the pain was all due to the accident and that the fall caused a tear in the lower back’s fibre which caused a disc to leak. The issue for the determination of damages was the nature and extent of the injury.

‘The claimant’s expert had presented his evidence as a series of lectures, but it was no part of an orthopaedic expert’s expertise to say who should be believed and why’The deputy High Court judge held that there was no doubt that the claimant was an unreliable source of evidence and the court was not able to believe him. The court found that he suffered progressive new pain after a two-month period following the fall, leading to his hospital admission. The evidence of the line manager, which did not support the claimant’s claim of progressive pain after the accident, was accepted. Between the evidence of the two experts, the defendant’s was preferable; he had subjected the material to careful analysis. The claimant’s expert had presented his evidence as a series of lectures, but it was no part of an orthopaedic expert’s expertise to say who should be believed and why. He had diminished the role of the medical expert in doing so. He had also unreservedly supported the claimant’s claim even though the claimant’s evidence had been misleading. Further, the way that the claimant had fallen did not support the theory of torn fibre; he did not fall on his back but heavily on his left side. Therefore, the court found that the bruising was mostly over within a fortnight and that the visit to hospital had been prompted by long-standing degenerative changes in the claimant’s lower spine.

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The claimant had sustained no structural damage. It was likely that he had suffered fairly extensive bruising; he was of a hardy disposition and there was no doubt that he coped the best he could with the discomfort and was not necessarily free from pain when he went back to work a fortnight after the fall. It was appropriate to award £1250 in damages.

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Civil procedure/litigation friendIn the case of Dunhill (Protected Party) v Burgin (2014) the Supreme Court held that a party lacking mental capacity must have a litigation friend and without one the proceedings could be nullified. It is perhaps not surprising therefore that in Bradbury and others v Paterson and others (2014) EWHC 3992 (QB) the five claimant patients and the third defendant health authority applied for the setting aside of an order discharging the Official Solicitor as litigation friend of the first defendant surgeon in the claimants’ clinical negligence claims.

The claimants alleged that the first defendant had negligently carried out breast cancer surgery, and claimed against him and against the other defendants, for whom he had worked. The first defendant was a member of a defence organisation through which insurance was available. The Official Solicitor had been appointed to act as his litigation friend as it appeared that he lacked capacity to give instructions. The defence organisation later informed the Official Solicitor that the first defendant was not entitled to the benefit of the insurance policy. As the first defendant’s legal representation would no longer be funded, the Official Solicitor applied under CPR 21.7 to be discharged as litigation friend. The judge granted the order without representations from the claimants or the other defendants.

The claimants and third defendant argued that the court’s power to terminate a litigation friend’s appointment was subject to the overriding requirement that a protected party had to have a litigation friend, so the court should not have discharged the Official Solicitor without identifying a substitute litigation friend.

‘…no litigation friend who needed to instruct lawyers would be prepared to act without a cast-iron guarantee that the costs of doing so would be met.’Rejecting the application, the High Court judge held that the power to order the termination of a litigation friend’s appointment was not restricted in the manner contended for. Subject only to the requirement in CPR 2.7(2) that the litigation friend provided evidence in support of his application for an order terminating his appointment, there was no further requirement in that rule requiring that he identified a substitute. The Official Solicitor had further submitted that a litigation friend who was unwilling to continue to act was a person most unlikely to satisfy the criteria in CPR 21.4(3); further, regarding litigation friends other than the Official Solicitor, no litigation friend who needed to instruct lawyers would be prepared to act without a cast-iron guarantee that the costs of doing so would be met. Those submissions had considerable force in general, although it was doubtful whether the Official Solicitor, as an officer of the court, would act contrary to the interests of a protected party in such a situation. Nonetheless, because of the funding constraints to which he was exposed, enforced continuation as a litigation friend would be uncomfortable. The judge had been entirely justified, and almost certainly obliged, to make the orders regarding the cessation of the Official Solicitor’s involvement. It might have been open to her to adjourn the application so the other parties could make representations, but the application had been properly

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constituted. Nevertheless, the situation was unsatisfactory; some way had to be found of enabling the claims to be considered properly.

The claimants had raised questions about whether the first defendant in fact lacked capacity to conduct the proceedings. The logical next step was therefore to resolve that issue: if he did not lack capacity, the litigation friend issue became irrelevant; if he remained a protected party, the question of how the Official Solicitor was to be funded would have to be considered. There were at least three possibilities for securing the funding: if the first defendant had capacity to manage his property and affairs, but not the litigation, he could ask the Official Solicitor to act for him if he put him in funds; if he lacked capacity to manage his property and affairs, the Court of Protection would have jurisdiction to intervene and ensure that the Official Solicitor was properly funded; and, if those avenues were not fruitful, the High Court would have power to direct that one or more of the parties should fund the Official Solicitor’s costs, the initial outlay to be recoverable as part of the costs of the litigation. The case was unusual and appeared possibly to require the intervention of the Court of Protection, so would be transferred to the Vice President of that court to ensure that the relevant expertise was applied. In order for capacity issues to be addressed properly when the case was transferred, the court directed that the claimants and second and third defendants each put the Official Solicitor in funds from which he would have liberty to instruct an expert to examine the first defendant as to his capacity, and to take advice on the implications of the findings. The proceedings would be stayed to enable the issue of capacity to be resolved.

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Civil procedure/evidenceIn high-value personal injury claims there have always been problems in accommodating the many expert witnesses required to attend the final hearing. The case of Iredale v Horgan and another [Lawtel 9/12/2014] suggests that the courts will continue to adopt a pragmatic approach to such difficulties, even in the post Jackson/Denton era.

Both the claimant and defendants wished to call experts on the issue of brain damage. The trial window had been set without regard to the availability of the defendant’s four expert witnesses, and it transpired that not all of them would be available to attend court during the period specified. At the instant hearing, the claimant suggested that if the trial began on a specific date during the window, most of the defendants’ experts would be able to attend to give evidence.

‘…the court felt constrained to vacate the trial to ensure that both parties had a proper opportunity to deploy all the necessary expert evidence.’Vacating the trial date, the deputy High Court judge held that due to the lateness of the claimant’s suggestion, the defendants had been unable to take up-to-date instructions on the availability of their experts on the specific dates suggested and the court had also been unable to make enquiries as to its own ability to accommodate a trial on those specific dates. It was of concern that, if the court acceded to the claimant’s suggestion, at least some of the defendants’ experts would not be able to be present in court

when all of the claimant’s experts gave evidence. Bearing in mind the significant difference between the views of the parties’ respective experts, it was desirable that both sets of experts should be available in court to hear the evidence of their opposite numbers, so that they could each give such advice and assistance to counsel as might be required to ensure that both parties’ cases were properly advanced. In those circumstances, although it was unfortunate that the trial would have to be delayed for several months, the court felt constrained to vacate the trial to ensure that both parties had a proper opportunity to deploy all the necessary expert evidence. Vacating the trial was the course by which the least injustice was caused to both parties.

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Costs managementIn the case of Redfern v Corby Borough Council [Lawtel 5/12/2014] we have an example of a judge applying proportionality to reduce a claimant’s costs’ budget.

The claimant/appellant had been employed by the defendant/respondent and alleged that he had suffered psychiatric injury as a result of stress, bullying and harassment at work. There was to be a seven-day trial on causation, liability and quantum. Each party had been given permission to instruct two experts, the claimant was estimated to have between 7 and 15 witnesses and the claim was valued at around £700,000. At a costs management hearing a deputy Master stated that it was worrying that the claimant’s costs budget was equal to the value of the claim and that the amount of costs already incurred was excessive and disproportionate. He approved a much lower budget for the claimant.

The claimant appealed and submitted that the deputy Master’s function was to focus only on costs yet to be incurred; that he had taken the wrong approach by indicating a costs amount which he considered to be proportionate in relation to the sum claimed and then adjusting the overall budget to conform to it; and, as a result, the amount allowed for costs yet to be incurred was inadequate.

‘It had been sensible to fix a figure which would be reasonable and proportionate for the costs of the whole action.’Rejecting the appeal, the High Court judge held that the deputy Master had not sought to approve or disapprove costs which had already been incurred. He had recorded his comments on those costs and had taken them into account when considering the reasonableness and proportionality of

all subsequent costs, as he was bidden to do by Practice Direction 3E (Costs Management). It had been sensible to fix a figure which would be reasonable and proportionate for the costs of the whole action. The practice direction had been applied correctly. The only way in which one could take into account excessive costs already incurred was to limit approved subsequent costs at a lower level than would have otherwise been approved. The deputy Master had not erred in principle.

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Jackson/Mitchell/DentonAlthough it is not a personal injury case, British Gas Trading Ltd v Oak Cash & Carry Ltd (2014) EWHC 4058 (QB) is of importance in illustrating a court’s approach to relief from sanctions in the post-Denton era. It is interesting to see the emphasis placed by the judge on the impact of the defendant’s failings on court resources.

The court made directions in November 2013 for both parties to file listing questionnaires by 5 February 2014. The defendant had not filed its questionnaire by 10 February. The court issued an order that unless the defendant filed its questionnaire by 19 February, the defence would be struck out. On 18 February, the defendant filed a directions questionnaire, not a listing questionnaire. The solicitor with conduct of the defendant’s case had had personal difficulties during the litigation, and had delegated the task of complying with the unless order to a trainee solicitor. After being notified that the wrong document had been filed, the defendant’s solicitors filed a listing questionnaire on 21 February. The claimant obtained judgment in default. The defendant successfully applied for relief from sanctions. The judge also set aside the default judgment.Allowing the claimant’s appeal, the High Court judge held that a three-stage test was to be applied to relief applications: identifying the seriousness of the default; considering why the default occurred; and evaluating all the circumstances of the case. The breach had been serious and significant. The defendant had failed to comply with both the original order and the unless order. Its solicitors had had over three months to complete a not particularly difficult questionnaire. It had not been completed, and when an attempt was made to comply with the unless order, the wrong form had been sent. There was no good reason for the breach. Although the defendant’s solicitor had had personal difficulties, there were over 40 solicitors in the firm and there had to be provision to delegate work to others with the skill to ensure that tasks were properly completed. It had not been until the unless order was issued that the solicitor had delegated the task to a trainee, and the trainee must not have had

sufficient experience to identify the correct form. The solicitor’s personal difficulties could not be a good reason for failure to comply with the original order for three months and the unless order subsequently. Nor was there a good reason why the trainee had not been properly supervised. In considering all the circumstances, the court took account of the effect of the failure to comply. The persistent failure to provide the questionnaire had meant that the trial date of two days was lost. That was a matter of grave concern when one considered the impact that it would have on the instant case, the impact on other cases awaiting hearing dates and the waste of court time. The court also considered the effect on the defendant of not being granted relief from sanctions. The judgment was substantial. It was unfortunate that refusal to grant relief could mean that the defendant would have to bring an action against its solicitors. In the circumstances as a whole, there was no reason why relief should be granted. The judge had erred in applying an overly generous interpretation of Mitchell. In the absence of an application to set aside the default judgment, the judge should not have taken the view that the application should have been brought and therefore would be treated as though it had been brought. Further, there had been no evidence in support of such an application.

‘...the trial date of two days was lost. That was a matter of grave concern when one considered the impact that it would have on the instant case, the impact on other cases awaiting hearing dates and the waste of court time’

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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From Plexus Law ScotlandA Labour MSP has given notice that he intends to introduce a Bill to the Scottish Parliament to reverse S69 Enterprise and Regulatory Reform Act 2013 on the basis that the Act is in breach of European law. If passed this would reintroduce the right of a claimant to cite a breach of a health and safety regulation as evidence of negligence, reintroducing the concept of strict liability. The justification for this draft legislation is that if it is not implemented the Scottish government is open to claims from claimants deprived of their rights, pursuant to EU Directives, to recover compensation from employers unless the employer could prove that it had a defence.