Legal Watch:Personal Injury19th March 2015Issue: 056

Events

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In this issue:

• Employers’ liability

• Psychiatric injury/secondary victim

• Jackson/Mitchell/Denton

• Costs

Employers’ liabilityAmongthemostcommonaccidentsinofficesarethosecausedby tripping and slipping on the one hand and manual handling on the other. The case of West Sussex County Council v Fuller (2015) EWCA Civ 189 involved both. The case also looks at the relevance of a risk assessment when determining liability.

The claimant/respondent had been a receptionist at one of the defendant/appellant’s offices. She had been askedtostartdeliveringpost todifferentareasof theoffice.Whiledelivering post she had tripped up a staircase and put out her hand to break her fall, spraining a ligament in her wrist. The claimant alleged that she had been carrying a large amount of bulky post and that the local authority was liable because it had failed to carry out a risk assessment under Regulation 3 Management of Health and Safety at Work Regulations 1999 and Regulation 4 Manual Handling Operations Regulations 1992. The judge found that she had not been carrying a large amount of post and had simply misjudged her footing, but he felt compelled to allow her claim because of the failure to carry out a risk assessment.

‘...the accident did not fall within the ambit of the risk that the local authority had arguably been required to asses’Allowing the defendant’s appeal, the Court of Appeal held that liability for breach of Regulation 3 of the 1999 Regulations or Regulation 4 of the 1992 Regulations could not be established without proof of a causal link between the breach and the injurysuffered.Theburdenofprovingthatcausallinkwasonthe claimant. However, in many workplace situations, a failure

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by the employer to assess the risks of injury involved in a manual handling operation, and to take appropriate steps to reduce the risk of injury to the lowest level practicable, would effectively cast on to the employer the evidentialburden of showing that its failure was not at least a cause of the accident. That was because there would be an obvious connection between the injury and the risks associated with the activity being undertaken. That was not the case where the cause of the accident was unconnected with the risk generated by the operation in question. In the instant case, the defendant had arguably been in breach of duty in failing to carry out a risk assessment, but on the facts found by the judge the accident did not fall within the ambit of the risk that the local authority had arguably been required to assess. The claimant had simply misjudged her footing when climbing a staircase while she happened to be carrying one or more items of post. Her accident was wholly causally unconnected with the circumstance that she had been carrying post.

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Psychiatric injury/secondary victimWe do not normally include clinical negligence cases inthis periodical but Baker and others v Cambridgeshire & Peterborough NHS Foundation Trust (2015) EWHC 609 (QB) includes consideration of a claim for psychiatric injury by a secondary victim.

Thedeceasedhadsufferedfrombipolaraffectivedisordersincehewasateenager.Hewasmarriedtothefirstclaimant,with whom he had a son and two step-children, and he ran his own business. One of his periods of exuberant mood coincidedwiththefirstclaimantsufferingfromaprolongedepisode of depression and self-harming. After an incident, the first claimant locked the deceased out of their houseandhemoved intohisparents’house.Shortlyafterwardshis GP referred him for an urgent appointment with local mental health services. The referral letter referred to the deceasedas suffering from intermittent suicidal thoughts.The deceased had a consultation with a speciality doctor in psychiatry.ShereportedtotheGPherdiagnosisofbipolaraffectivedisorderandstatedthatthedeceased’smoodhadbeennormal.Shearrangedafollow-upappointmentforonemonth later. After the second consultation the deceased had visitedthefirstclaimantinwhatshedescribedasatearfuland distraught state. He had become cross when she had told him that it was not the right time for him to return to the marital home because of her own illness. The doctor’s letter to the GP stated that the deceased had had some thoughts of hopelessness but had denied suicidal thoughts, that she had recommended marriage counselling and that she had discharged him back to the GP’s care. The next day the deceased had spent time with his son. The day after that he was found dead at his parents’ house. The third claimant, his step-daughter saw the body about 45 minutes later.

Dismissing all claims for damages the deputy High Court judge held that the doctor had conducted the firstconsultation in a thorough and competent manner. It was very unlikely that she would not have discussed with the deceasedhisGP’sconcernsaboutsuicidal thoughts.She

had been entitled to conclude that the deceased had been sufferingfrombipolaraffectivedisorder,butwascontinuingtofunctionsatisfactorily.Therewereinsufficientriskfactorspresent that would have mandated the involvement of the community mental health services at that time; a reasonably competent body of psychiatrists would not have done so. The decision to discharge the deceased back to the care of his GP at the second consultation had also been of an acceptable standard. Although her letter could have been more carefully worded, her references to hopelessness were more likely to have been made in the context of the marriage breakdown than general hopelessness. The deceased had understood and agreed with the doctor’s proposed plan. There had been no breach of duty.

‘…there had been insufficient proximity in time and space to the deceased’s death for his step-daughter to claim as a secondary victim’Any alleged failure to involve community health services after the first consultation had not been causative of thedeceased’s death. It was unlikely that a home visit by community mental health services could have been arranged before the second consultation. It was not established on the balance of probabilities that if the doctor had instigated further involvement from the community mental health services the deceased would not have committed suicide one month later. At the second consultation there had been no indication of suicidal intention, nor when the deceased hadspokentothefirstclaimantorspenttimewithhisson.Itwould be a step too far to conclude that, but for the doctor’s

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decision to discharge him to the care of his GP he would not have taken his own life, as opposed to any other reason at that time. There was evidence that the breakdown in his relationship with the first claimant had been a significantstressor. Therewas no evidence that the offer of anotheroutpatient appointment would have prevented his death.

Ifithadbeennecessarytodecide,therehadbeeninsufficientproximity in time and space to the deceased’s death for his step-daughter (the third claimant) to claim as a secondary victim.

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Jackson/Mitchell/DentonAlthough it is not a personal injury case Peak Hotels & Resorts v Tarek Investments Ltd and others [Lawtel 16/03/2015] is ofwider interest in that itconfirms thatanapplication foran extension of time made before a default has occurred is not to be considered in the light of the stricter approach following Mitchell and Denton.

The claimant had previously been ordered to put up, as fortificationforacross-undertakingforaninjunction,£10m.At the defendant’s subsequent application for security for costs, the claimant unsuccessfully argued that it should beable to use £9mof theprevious amount on thebasisthat the events that might have given rise to loss from the injunction had passed. The judge held that the question of security for costs should not await determination of any recovery of the previous security, as that previous order was absolute until there was a further order releasing any sums. Heorderedtheclaimanttoprovide£3,138,000assecurityfor the defendants’ costs. He dismissed the possibility of theclaimantfailingtoprovidethesecurityasremote,findingthatitsformerdirector,whoretainedaconsiderablefinancialinterest in the claimant, had approximately $160 million and so any default would be by choice and the security could notstifletheclaim.Thejudgestatedthathewouldnotmakean unless order as the defendants could apply to strike out the claim in the event of default. Shortly before the datefor compliance, the claimant applied for an extension of time. Its evidence in support recited the fact of the order and indicated that it expected to receive sums shortly that wouldbeusedtosatisfytheorder.Itofferedtomakeapart-payment of approximately 43% of the sum due very shortly. By the time of the instant hearing, the date for compliance had passed.

The defendants submitted that the claim should be struck out as the application for an extension of time was not supported by full and complete evidence, and did not describe why the order had not been complied with or howitwastobesatisfied.Theclaimantsubmittedthatan

extension of time should be granted as it had a need and a right to respond to the strike out applications and to provide evidence in support. It further submitted that the overriding objective should be applied to its application.

‘Where an application for an extension of time was made before the deadline, the court should be guided only by the overriding objective’Allowing the application, the High Court judge held that the claimant, in seeking an extension of time, had sought to latch onto the strike out application. It had accepted that if its application was the only one before the court, it would have had very little basis for adjourning to supplement its evidence. Care had to be taken to distinguish the claimant’s application for an extension on the one hand, and the question of appropriate relief on the other, which was the subject of the strike out applications. The court had invited the defendants to consider withdrawing the strike out applications in deference to an unless order in respect of any extra time to be granted to the claimant for compliance, which they accepted. The application for an extension was therefore on frail grounds and the evidence in support was not extensive. The question was whether the stricter approach under Mitchell/Denton was to be applied, or simplytheoverridingobjective.Whereanapplicationforanextension of time was made before the deadline, the court should be guided only by the overriding objective. Even on that basis, the claimant’s application relied considerably on the court’s indulgence and reluctance to wield the ultimate procedural weapon of striking out. The court was persuaded

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by the authorities that the interests of justice required that the claimant should be given further time for compliance with the order, subject to conditions. The claimant’s offerto make a timely substantial part-payment was a strong indication of an earnest intent to fully comply with the order if given more time. The claimant would be granted a short extension of 11 working days, on an unless order basis. There would also be an unless order in respect of the part-payment, which would have to be made as soon as was feasible given certain administrative functions of the court.

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CostsWereportthecommercialcaseofCIP Properties (AIPT) Ltd v Galliford Try Infrastructure Ltd and others (2015) EWHC 481 (TCC) as an illustration of the need to take seriously the issue of costs budgeting. The case also attacks the notion that a claimant’s costs budget will inevitably be higher than that of the defendant.

The claimant owned a larger development on the site of a former hospital. It claimed against the defendant for the costs of remedial work to rectify alleged defective works. Prior to afirstcasemanagementconference,theclaimanthadfileda case management information sheet which included an estimateof itscostsatalmost£3.5m. Itsproposedcostsbudgetproducedfortheinstanthearingwasalmost£9.5m.Thedefendant’sincurredandestimatedfuturecostsfigurewas£4.48m.Fouradditionalparties,joinedtoproceedingsby the defendants, estimated their costs at £5.45m. Thetotaldamagesclaimwasapproximately£18m.

Reducing the claimant’s proposed budget substantially, the High Court judge held that it was a wholly unreliable document. Further, given the deliberate absence of anyexplanation for the huge increase in the costs incurred and estimated, and the schedule of assumptions, which could only be designed to give the claimant’s legal team the maximum room for manoeuvre later in the proceedings, the conclusion was that the costs budget had been deliberately manipulated. The claimant did not want the court to make costs management orders and the production of the costs budget in its present format was a continuation of that stancebyothermeans.Thosefindingsofunreliabilitymeantthat the claimantwas in a particularly difficult position inrespectoftheincurredcoststodateandfixtureofbudgetfigures,butonlyhaditselftoblame.

‘There was no reason…why the claimant’s overall costs figure should not be similar to that of the defendant’By reference to CPR 44.3(5), the claimant’s incurred and estimated costs were disproportionate to the complexity and value of the claim. There was no reason, and no reason hadbeenputforward,whytheclaimant’soverallcostsfigureshould not be similar to that of the defendant. If anything, it should be less, as the defendant would be doing most of the work in preparing for and running the trial.

The claimant’s justification for the disparity in the costsbudgets was rejected. There was nothing to justify its assertionthatthedefendanthadmanipulateditsfigurestokeep them low, and it was wrong to say that it was likely that the defendant would be ordered to pay the claimant’s costs. In the instant sort of case, Part 36offerswerealmostalwaysmade, and usually early in proceedings. The usual question was whether the court’s ultimate judgment was above or belowtheleveloftheoffer.

It was wrong to say that because the claimant was the claimingpartyithadthelion’sshareofcosts.Suchcasestended to be run by the experts, who had identified thedefects and the appropriate remedial work. In cases in the instant court, the defendant needed to be on top of all the relevant material just as much as the claimant, particularly where the defendant had incurred the costs risk of joining additional parties. It was also wrong for the claimant to suggest that its own costs were greater because of the addition of those parties, given that it had said throughout that its costs budget had been prepared by reference to the defendantonly.Theclaimant’scostsbudgetsetoutfigures

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: 12 Dingwall Road, Croydon, CR0 2NA. Parabis Law LLP is authorised and regulated by the SRA.

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whichwerewhollyunreasonableandunjustified.Thecourtdetermined the upper limit of the reasonable amount under eachheadofcosts,atotalfigureof£4.28m.

Aftersummarisingtheavailableoptions,thecourtidentifiedandsetoutthevariousbudgetfiguresinacostsmanagementorder,includingtheclaimant’sapprovedbudgetof£4.28m.The court also approved the defendant’s costs budget, at £4.22m, with minor reductions made to the proposedbudget. The costs budgets of the additional parties were proportionate and reasonable, and were approved in full.