legal watch - personal injury - issue 50
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Legal Watch - Personal Injury - Issue 50TRANSCRIPT
Legal Watch:Personal Injury6th February 2015Issue: 050
In This Issue:
• Public liability/landlord & tenant
• Public liability
• Damages
• From within Greenwoods
• From within Plexus Scotland
Public liability/landlord & tenant
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
The case of Edwards v Kumarasamy (2015) EWCA Civ 20
considers the liability of a landlord for personal injury sustained
by a tenant when using a communal pathway, rather than as
the result of a defect within the demised premises.
The claimant/appellant rented a second-floor flat under an
assured shorthold tenancy. The defendant/respondent was
not the owner of the block of flats but had a long lease of
the flat. The accident occurred when the claimant was taking
rubbish out from his flat. He tripped over an uneven paving
stone in the pathway between the front door of the block and
the communal bins. He had not given notice of any defect to
the defendant before the accident and the defendant had given
no notice to his own landlord. A deputy district judge found
that the paved area was part of the structure or exterior of the
flat and awarded the claimant damages. On appeal, a judge
held that the defendant was not liable under the extended
covenant implied into the tenancy by S11(1A) Landlord and
Tenant Act 1985 because it was a precondition to liability that
notice of the defect had to be given.
“A landlord’s liability on his covenant to repair only required notice where the defect was within the demised property itself”Allowing the claimant’s appeal, the Court of Appeal held that
whether something was part of the structure and exterior of
a house depended on the facts. On the basis of the deputy
district judge’s findings of fact, the paved area was short and
part of the essential means of access to the front hall in which
the defendant had an estate or interest and it could properly
be described as the exterior of the front hall. In principle,
the extended covenant applied. The general rule was that a
covenant to keep premises in repair obliged the covenantor
to keep them in repair at all times, so that there was a breach
of the obligation as soon as a defect occurred. There was
an exception where the obligation was the landlord’s and
the defect occurred in the demised premises itself, in which
case he was only in breach of his obligation when he had
information about the existence of the defect such as would
put him on inquiry as to whether repair works were needed
and he had failed to carry out the necessary works with
reasonable expedition thereafter. Where a defect occurred
in the external part of the building that was not demised
to the tenant, the landlord was liable even though he had
no notice of the disrepair. The critical distinction, under
common law, was between that which was demised and
that which was not. Where, as in the instant case, there had
been an express grant of an easement the grant carried with
it an ancillary right on the part of the dominant owner to carry
out repairs on the servient owner’s land in order to make the
easement effective. A landlord’s liability on his covenant to
repair only required notice where the defect was within the
demised property itself. Parliament had not included any
requirement of notice. With implied terms, necessity rather
than mere reasonableness was the touchstone. The court
disagreed with the authors’ opinion in Dowding & Reynolds
(5th ed. para 20-37) that notice was required even in the
case of extended covenants.
Public liabilityThe case of Ford v Silverstone [Lawtel 30/01/2015] explores
the liability of an individual for injuries to a friend voluntarily
assisting with gardening.
The claimant, a friend of the defendant, had been helping
him renovate his newly-bought property. The claimant
cleared branches from the grounds and the defendant
worked a wood chipper. On one occasion the claimant was
alone and attempted to unblock the chipper by putting his
left hand inside it while the engine was running and three
fingers were severed. The claimant’s case was that he had
seen the defendant do the same thing when the machine
was blocked. He claimed that the defendant had told him
that the key to the wood chipper was lost, but that the key
to the lawnmower could be used on it instead. He said that
because the lawnmower key took five minutes to start the
chipper that the defendant did not switch the chipper off
when removing blockages. The defendant’s case was that
he had never lost the key to the chipper, which was kept in a
safe, and that he had never used the lawnmower key to start
it, or even knew that it worked. The defendant also claimed
that he would never have placed his hand in the machine
with the engine running. The claimant submitted that the
defendant owed him a duty of care.
“In no sense could it be said that the claimant was an employee”Rejecting the claim, the deputy High Court judge held that
the basis of the claim, namely that the claimant had been
shown how to unblock the chipper with the engine running,
was not borne out on the evidence. The court was not
persuaded by the claimant’s assertions regarding the key
to the chipper. The key had not been lost and was either
in use or in the safe. The defendant had appeared tidy and
meticulous; he would not have spent five minutes starting
the chipper using the wrong key. The evidence was also
that they were friends and that they enjoyed working on
the property together. In no sense could it be said that the
claimant was an employee. If the claimant had chosen not
to work that day that was a choice he was free to make.
His decision to resume branch clearance had been made
without discussion with the defendant. He had decided
to take the chipper out from behind the defendant’s car,
which would have been a surprise to the defendant, as the
claimant could not drive. When the chipper had become
blocked, he had decided to do something highly dangerous
which he had not seen the defendant doing. The machine
carried warnings about inserting hands without switching
the power off. The defendant did not owe the claimant a
duty of care. Such a duty might have arisen if the court had
accepted the claimant’s version of events, but even then the
court would have found a significant degree of contributory
negligence; on the day of the accident the claimant had
been extremely reckless.
DamagesTotham (Protected Party) v King’s College Hospital NHS
Trust (2015) EWHC 97 (QB) covers a number of points of
interest to those handling high-value personal injury claims.
The claimant, aged seven at the date of the hearing, claimed
damages for serious brain injuries sustained during her
birth, resulting in cerebral palsy. Liability was not in dispute.
Many heads of damage were agreed but a number were in
issue and were assessed by the High Court judge.
Damages for pain, suffering and loss of amenity were
assessed at £275,000, inclusive of the 10% uplift.
Past gratuitous care had been agreed at the NJC aggregate
rate but the claimant resisted the 25% discount on the basis
that her mother gave up a highly paid job and then went
back to working on a part-time basis in order to care for
the claimant and coordinate her complex arrangements
for care. In addition, the actual care rates for London were
higher than the aggregate NJC rate. The judge applied
the discount, finding that the arguments relied on by the
claimant did not make the case so unusual as to mean there
should be no discount.
The claimant’s mother had been her case manager until a
professional case manager had been appointed. The judge
allowed this also at the NJC aggregate rate less 25%.
The defendant argued that past expenditure on professional
case management had been excessive. However, the judge
was not prepared to criticise what had been done by the
claimant’s mother on the basis she acted reasonably in all
the circumstances.
The claimant’s life expectancy was reduced to age 47. But
for the accident her retirement age would have been 70 and
her life expectancy to 93.6. She was awarded £3,000 p.a.
for part-time earnings while in full time education (16 to
21). The judge then awarded a periodical payment for net
earnings of £32,694.51 from age 21 to 47. From this was
deducted £2,000 p.a. for the cost of travelling to work.
“The judge found the decision in Croke to be inconsistent with the principle of full compensation (but she was bound by it)”A claim was made for earnings during the ‘lost years’ from
47 to 70 and for loss of pension from age 70. The judge
would have allowed £32,694.51 and £12,000 respectively
as the bases for such awards but found that she could not
do so because she was bound by Croke v Wiseman (1982).
The rationale for the decision in Croke was that the court
should not speculate as to whether a very young claimant
might in future have had children who would require support.
The judge found the decision in Croke to be inconsistent
with the principle of full compensation. The defendant’s
negligence had reduced the claimant’s life expectancy so
that she would not earn the salary and pension which, on
the balance of probabilities, she would have earned. Only
the Supreme Court can resolve this issue.
A lump sum for childcare costs was refused on the basis
that it was highly unlikely that the claimant would now have
a child.
From within GreenwoodsClaimants come unstuck in induced accident claimsSA and JF v SS (Guildford County Court 7/01/2015)
This case arose out of a road traffic accident on 26/07/2012.
It was the claimants’ case that the defendant had simply
driven into the rear of their vehicle, which was stationary
waiting to turn right. However, our client’s insured disputed
the claims on the basis that the incident was deliberately
induced. The insured’s case was that the accident occurred
after he had passed the junction and that a third party
(lead) vehicle had braked sharply for no reason causing
the claimant to brake and the defendant to hit the rear of
the claimants’ vehicle. Bizarrely the lead vehicle stopped
even though it had not been involved in the collision. When
exchanging details it became apparent to the insured that
the occupants of the lead vehicle knew the claimants.
A defence was filed pleading fraud. Database searches
showed both claimants had a claims history and were linked
to other accidents that Greenwoods had dealt with, where
fraud had also been pleaded. The claimants were forced
to disclose copies of all pleadings, engineering evidence
and medical reports from previous accidents occurring in
the last four years. There were multiple inconsistencies in
the claimants’ reporting of injuries to the various medical
experts.
The matter came to trial and was listed for two days. Most
of the first day was taken up with cross examination of the
first claimant, who was forced repeatedly to admit that he
had lied in his witness statement and/or to the majority of
the medico-legal experts who had examined him in respect
of his various claims. He ultimately discontinued his claim
three quarters of the way through his evidence. However,
somewhat surprisingly, he continued to give evidence on
behalf of the second claimant because the second claimant
did not want to abandon his claim. This led to some almost
comical moments, with the first claimant refusing to answer
questions at one point and very nearly provoking the judge
to hold him in contempt of court.
On the second day, the second claimant discontinued his
claim, after cross examination, with a view to avoiding a
positive finding of fraud, having also admitted in the witness
box to lying in his statement and to his medico-legal expert.
This avoided the need for our client’s insured to give
evidence because the judge was more than satisfied that
the claimants had been shown to have lied and exaggerated
their injuries, and misled the court about previous accidents,
such that an award of exemplary damages should be
made. The judge indicated that, if the claims had not been
discontinued, he would have found positively that the
claimants had deliberately induced the accident. He also
commented that he had never encountered claimants who
had needed to admit so many times that they had lied.
However, he declined without a formal application from our
client to refer the matter to the Attorney General of his own
volition (pursuant to CPR 81.18(5)) because the claimants
were to be punished heavily in costs and damages.
The claimants were ordered to pay our client’s costs on the
indemnity basis, as well as pay £3,750 each in exemplary
damages (in addition to their share of the special damages
claimed).
The judge has also made provision for an application to
be made for a wasted or non-party costs order against
the claimants’ solicitors. However, he noted separately
that he had only known a handful of such applications
to succeed because of the difficultly proving both
negligence/misconduct and causation (that the negligence
or misconduct caused additional costs to be incurred),
particularly where ultimately the claims failed because of the
claimants’ dishonesty.
For further details please contact:
James Mansell
T: 01908 298264
From within Plexus ScotlandScottish Consultation on Costs and Funding of Civil LitigationIn the light of previous consultations and the ongoing
reforms in the civil justice system the Scottish Minister for
Justice has now published proposals for funding claims in
the future. A consultation on these latest proposals is open
until 24 April 2015.
It is intended to maintain Legal Aid in Scotland but to make
it a fund of last resort. To that end the existing Speculative
Fee Agreements (no win/no fee arrangements) will be
encouraged but with the introduction of a cap on the
success fee (based on the costs recovered) that can be
charged by the pursuer’s solicitor. In addition it is proposed
that it should be permissible for solicitors to enter into
damages based agreements (DBA). Part of the consultation
is whether a cap should also be placed on what the solicitor
should recover under a DBA.
In funding arrangements in England and Wales, future
losses are ring-fenced from the calculation of the success
fee. It is not suggested that there should be an identical
provision in Scotland.
Claims management companies come under the spotlight.
They already offer DBAs. There is currently no intention to
regulate them, as in England and Wales, but they would
become subject to the same statutory controls as the legal
profession as regards DBAs. In the light of the relatively light
controls over DBAs a code of good practice is proposed
to ensure that claimants are fully advised of the terms and
conditions of an agreement and of their rights. There should
also be greater transparency about the existence of funding
arrangements.
To encourage further the use of speculative fee agreements
and DBAs it is suggested that qualified one way costs
shifting (QOCS) should be introduced in personal injury
and clinical negligence claims. There would be similar
safeguards as for England and Wales in the event of fraud or
unreasonable behaviour as defined in the Wednesbury case.
Respondents to the consultation are asked to consider if
these are sufficient to discourage all unmeritorious cases
and what impact the reforms may have on the volume of
claims and other resources, including the courts.
Counsels’ fees are also included in the consultation as part
of the attempt to control the cost of litigation. This would
see the introduction of a table of fees for counsel in the
Court of Session, to include those for solicitor advocates.
Scotland has been lacking any formal procedure for dealing
with multi-party claims. Several options are canvassed
for the future: a case management procedure (similar to a
group litigation order in England and Wales); a class action
procedure, with a single claimant bringing a claim on behalf
of a larger group; and a full class action procedure which
would allow interested parties to join a class action.
While it is anticipated that the proposals discussed above
will reduce disputes about legal expenses, the opportunity
is being taken to review the post of the Auditor of the Court
of Session, who is currently the only costs judge in the
Court of Session.
The government would also like to see legal representatives
made personally liable for expenses occasioned by their
own misconduct, something already possible south of the
border.
Legal Aid is currently available in Scotland only for
individuals. It is proposed that it should also be available
to financially eligible legal entities such as companies and
partnerships, but only as a fund of last resort.
So the process of change continues and we will keep you
up to date on all developments.
For further details please contact:
Cameron McNaught
T: 0844 245 4802
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.
www.plexuslaw.co.ukwww.greenwoods-solicitors.co.uk
Contact UsFor more information please contact:
Geoff OwenLearning & Development Consultant
T: 01908 298 216
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