Legal Watch:Personal Injury5th August 2015Issue: 073

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 - You the client | 21.04.16 | The Wellcome Collection, London

In this issue:

• Public liability

• Civil procedure

• Civil procedure/expert evidence

• Costs

• Jackson/Mitchell/Denton

Public liabilityInsurersmaybeconcernedbythecourt’sfindingsinregardtothe householders’ duty of care in the case of Pollock v Cahill and another (2015) EWHC 2260 (QB).

Theclaimantwasblindandhadbeenaguestatthehouse.Hewasgivenabedroom,butwasnotawarewherethewindowwas.When the claimant fell from the second-floor window,which had been left open, he sustained brain and spinalinjurieswhichresultedinhimbeingparalysedfromthewaistdown.

The defendants argued that there were three possibleexplanations of how the claimant fell from the window: it was a complete accident; he had overbalanced after deliberately leaningout;orhehadbeensleep-walkingandclimbedout.The last two of those explanations did not involve any breach of duty on their part and the evidence was too unsatisfactory and too few facts were known for the court to exclude the last twopossibleexplanations.Theyalsoarguedthatafallthroughthewindow,whilepossible,hadnotbeenarealriskthatwouldinfluencethemindofareasonableman,andsotheyhadtakensuch care as was reasonable in the circumstances to see that theclaimantwouldbereasonablysafe.

Finding in favourof theclaimant, theHighCourt judgeheldthatontheevidence,althoughshedidnotrecallit,theseconddefendant had opened the window in the bedroom used by the claimantwhenshewasmakinguptheroom.Thedefendants’two alternative explanations were not genuine possibilities:the claimant could not have leant out of the window as he did not know it was there or that it was open; and there was no evidencethathewaspronetosleep-walking.Onthebalanceof probabilities, the claimant had fallen through the openwindowashewas trying tomakehisway to thebathroomafterhehadawoken,havinglosthissenseofdirection.

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‘The common duty of care owed by occupiers…required them to have regard to any known vulnerability of the visitor’.The common duty of care owed by occupiers pursuant to S2 Occupiers’ Liability Act 1957requiredthemtohaveregardtoanyknownvulnerabilityof thevisitor.Anopenwindowcreated an obvious risk for a blind person, particularlywhen it was on the second storey of the house with nothingtopreventafalltothegroundbelow.Theevidencedemonstrated that the risk had been apparent to the second defendantalbeitthatsheclearlymisjudgedtheextentoftherisk.Thedefendantshad failed todischarge thecommonduty of care they owed as occupiers: the open window had been a real risk to the claimant; they created that risk; and theyoughttohaveappreciatedtheriskandtakenstepstopreventitbykeepingthewindowclosedorbywarningtheclaimant about it with particular reference to the extent of thedropfromthewindow.

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Civil procedureAlthough it is a commercial case on its own facts,NGM Sustainable Developments Ltd v Wallis and others (2015) EWHC 2089 (Ch) contains reminders that parties should not forget the basics of civil procedure, including that atanyhearingquestioningmustbeconsistentwithaparty’sstatementsofcase.

The claimant company sought partial rescission anddamages in respect of obligations entered into with thedefendants, which theymaintained had been induced bythe defendants’ fraudulent misrepresentations. The factswerehotlycontestedbut infindingforthedefendantstheHighCourtjudgemadeanumberofcommentsthatareofgeneralrelevance.

The claimant’s counsel had repeatedly strayed in cross-examination fromhispleadedcase. Itwasa fundamentaltenet of the adversarial process that a case had to be put againsttheopposingpartysothattheyhadanopportunitytodealwiththeallegationsinthewitnessbox.Itwasequallyvitalforjudgesassessingwitnesses’credibilitytoseehowtheyreactedtotheallegations.

Severaltimes,counselputrolled-upquestions.Thewitnessanswered only the last question so that it was not clear what his response to the former would be. Equally witnessesoftensaid“yes”whentheymeant“no”,or“ok”whentheywere not agreeing a question but merely acknowledgingthattheyunderstoodit.Trialjudgeshadtobealerttoensurethat errors did not creep in. At the start of any long trialwhereissuesoffactwerehotlycontested,itwasessentialforcounseltoputtheircasetotheopposingsideincross-examination so that any criticism of their testimony could be puttothemstraightaway.

‘The claimant’s counsel had regularly strayed from (the) golden rule, trying to assert the opposite of his pleaded case’Itwasespeciallyimportant,infraudcases,fortheclaimantto stick to the pleaded case. The claimant’s counsel hadregularly strayed from that golden rule, trying to assertthe opposite of his pleaded case. The claimant’s casewasweakwhen it began, and hadbecomeprogressivelyweaker during the trial.On the evidence, there had beenno fraudulentmisrepresentation. The defendants had putthemaximumpressureonthecompany,buttherewasnoallegation of undue influence or duress. They had simplyexploitedtheirstrongpositionandthecompany’sweakness.Thatwasnot,initself,actionable,andhappenedeverydayinthecommercialworld.Therealreasonforthebreakdownbetweenthepartieswasaclashofpersonalities.

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Civil procedure/expert evidenceThe case of Wilson v Al-Khader [Lawtel 3/08/2015] is a relatively rare case looking at the operation ofPart 35.6: written questions to an expert witness. It also illustratesthedifficultyofsuccessfullyappealingacasemanagementdecision.

The claimant/respondent had suffered catastrophic braindamagedue toamedicalaccident,asaconsequenceofwhich she remained in a persistent vegetative state. Sheserved a medical report which, on the issue of her lifeexpectancy, simply said that she could survive for manyyearsandthatitwasprematuretoconcludeanythingelseatthatstage.

The claimant’s schedule of loss was uninformative and did notcontainasinglefigurewithregardtothesizeoftheclaim.InJanuary2015,thedefendant/appellantadmittedliabilityand causation and so the case proceeded on quantum only. When the matter came before the master for casemanagement, the defendant applied, purportedly underCPR 35forclarificationastotheclaimant’slifeexpectancy.He asked generally what the anticipated life expectancyofaperson inapersistentvegetativestatewas,andalsowhatthespecificanticipatedlifeexpectancyoftheclaimantwas.Theexpertinformedthejudgeastothedifficultiesinassessing life expectancy in the absence of old medicalrecords,andsaid thatdeterminingthematterat that timemightnotbeaccurateandwouldnotbe in theclaimant’sbestinterests.Themasterfoundthat,intheabsenceofanyevidence from the defendant contradicting that evidence,hewouldnotmaketheorder.

Thedefendantappealedandarguedthatitwasimpossibletovaluethecasewithouttheinformationsought.Hefurthersubmitted that the master had failed to take into account theoverridingobjectiveandtheneedtopromoteexpeditionandproportionality.

Dismissing the appeal, the deputyHighCourt judge heldthat the court would not allow an appeal unless a master had

madeanerroroflaw,or,inexercisinghiscasemanagementdiscretion, had taken into account irrelevant material,failedtotakeaccountofrelevantmaterial,orhadcometoaconclusion thatwassooutside the rangeof reasonableresponsesthatnomastercouldhavereachedit.Itwasnotfor an appeal court to substitute its own opinion, but toreviewthelowercourt’sdecisionwithinthoseparameters.

‘The questions asked had been…not clarifications but invitations to express an opinion that the expert had conspicuously not previously expressed’Under CPR 35.6(2) (c) questions to an expert about an expertreporthadtobeforthepurposeof‘clarification’only.Thequestionsaskedhadbeen,however,notclarificationsbut invitations to express an opinion that the expert had conspicuously not previously expressed. The claimant’ssolicitors had been entitled to advise the expert that he didnothavetoanswerthequestion,astheywerenotCPR 35.6 legitimatequestions.Moreover, themasterhadbeenentitled to take the view that absent any evidence to the contrary,itwasnotappropriatetogobehindaprofessionalexpert’sunwillingnesstoansweraquestion.Thedefendanthadsoughttoforceaprofessionaltoexpressanopinionthathe had declared himself uncomfortable in giving. Further,the fact that the master had not recorded his consideration oftheoverridingobjectivedidnotmeanthathedidnothaveitinmind.Anexperiencedmasterwasassumedtobefullyawareoftheoverridingobjectiveandtheneedtoapplyit.Inanyevent,anyopiniongivenby theexpertwouldhavebeen valueless because the annual costs of the claim had

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notyetbeenevidenced,andsothe lifeexpectancyfiguredid not yet have core significance. Some masters mighthavemetthatbydirectingthattheclaimantshouldprovidetheoutstandingevidence in accordancewith a timetable,and to provide a better particularised schedule of loss,thusallowingthedefendanttoknowthecasetheyhadtomeet.However,simplybecausetherewereotherwaysthatthe matter could have been addressed did not make the decisionwrong. Itwas legitimate toseek the information,but the preferable way was through case managementdirections and the claimant properly particularising theclaim.Thatdidnotaltertheconclusionthattherehadbeennoerroroflaw.Themaster’sdecisionhadnotbeensofaroutsidetherangeoforderssoastomakeitperverse.

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CostsIn Caseldine v Diocese of Llandaff Board for Social Responsibility [Lawtel 4/08/2015] we have an early case on the application of QOCS,albeitonlyatcountycourtlevel.

Theclaimhadbeendismissedandthejudgeorderedthattheissueofthedefendant’scosts,ifnotagreed,shouldbesubject to a detailed assessment and should be referred to theregionalcostsjudgetodeterminethepreliminaryissueon QOCS.QOCSprovided,withsomeexceptions, that intheeventofaclaimantlosinghiscaseattrial,hewouldnotbeorderedtopaythedefendant’scosts.Theclaimanthadinstructed solicitors to act for her and had entered into a conditional fee agreementwith themaswell asobtaininganafter-the-event (ATE) insurancepolicy.They terminatedthatCFAwithoutissuingproceedingsandtheclaimantthenenteredintoasecondCFAwithhercurrentsolicitors.TheinstantproceedingsweresubjecttothesecondCFA.

The defendant submitted that as the claimant had entered into a CFA with the first solicitors at a date prior to theintroduction of the QOCSruleson1April2013,shecouldnot rely on QOCSprotection.Theclaimantcontendedthatthecourthad to take intoaccount thebackground to thechanges,whichdealtwiththeabolitionoftherecoverabilityof additional liabilities from defendants and the introduction of the QOCS,andthatthechangeshadtobetakentogethertoeffectaquidproquo.Shefurtherarguedthatthedefinitionofpre-commencementfundingarrangements inCPR 48.2 was directed squarely at the issue of whether additional liabilities could be recovered and that in the instant case the proceedingswere subject to the secondCFA so thatif she won at trial the defendant would not have had any liability to pay any additional liabilities; and that in those circumstances she was entitled to rely on the protection affordedbytheQOCS.

Finding in favour of the claimant, the county court judgeheldthattherewasnobindingauthorityontheinstantissue.The case of Landau (2014)wasdistinguishablebecauseinthatcasetwosetsofproceedingshadbeentaken,whereas

intheinstantcaseproceedingswerenevercommencedinrelationtothefirstCFAbutonlytothesecond.

‘…the court was never in the position to order the defendant to pay the claimant’s additional liabilities’SofarasthefirstCFAwasconcerned,itwasthesolicitorswho terminated it and therefore they were not entitled to paymentofanysuccessfeeorcosts.Themeaningoftheword ‘proceedings’ had to be decided in the context inwhichitappeared.CPR 48dealt,amongstotherthings,withthe recoverability of additional liabilities and CPR 44.13 to CPR 44.17 dealt with QOCS.Bothchangestotheruleswerebroughtinatthesametimeandtherewasgoodreasonforthat.Inrespectoffundingarrangementsenteredintoonorafter1April2013,aclaimantwouldnolongerneedtotakeoutATEinsurancetocoverthedefendant’scostsbecauseeven if he lost at trial, hewouldno longerbe required topay the defendant’s costs subject to the exceptions set out at CPR 44.15 and CPR 44.16. At the same time, inrelation to such funding arrangements, defendantswouldno longer be liable to pay any additional liabilities to theclaimantintheeventoftheclaimantwinning.IntheinstantcasetheclaimanthadissuedproceedingspursuanttotheCFAenteredintowithhercurrentsolicitors.ThatCFAhadbeenenteredintoafter1April2013andthereforethecourtwas never in the position to order the defendant to pay the claimant’s additional liabilities. Thatwas an importantconsiderationwhendeterminingthemeaningofCPR 44.17 and CPR 48.2,whichitselfreferredtothepersonbywhomthe success fee was payable. The reference later in theruletothematterthatwasthesubjectoftheproceedings

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did not entitle the court to order the claimant to pay the defendant’scostshavingregardtothecircumstancesoftheinstant case, and the fact that no proceedingswere everissued in relation to thefirstCFA. In thosecircumstancesit couldnotbe right that theclaimant shouldnotbeableto relyon theprotectionaffordedbyQOCS. The claimant should not be responsible for payment of the defendant’s costsandcould relyon theprotectionafforded toherbyCPR 44.17.Shehadnotenteredintoapre-commencementfundingarrangementasdefinedbyCPR 48.2.

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Jackson/Mitchell/DentonThe case of M v Hicks and others [Lawtel 31/07/2015] is the latest case concerning an application for relief fromsanctions. More importantly it emphasises the need toinstruct a psychiatrist in a claim for psychiatric injury and not a non-medically qualified ‘expert’ whose evidence acourtmaystillconsideradequate.

Theclaimanthadbroughtaclaimagainstthefirstdefendantin relation to alleged sexual abusehehad sufferedas anadolescent when at a seminary school run by the firstdefendant. Permission had been given to rely on expertevidenceandtheclaimantinstructedapsychotherapist.Infact,theclaimanthadpreviouslyinstructedadifferentexpertwhohadbeendis-instructedafterhehadbeencriticisedbyajudgeinanunrelatedcase.Accordingly,thepsychotherapistwastheclaimant’ssecondexpertconsulted.Theclaimantthen instructed a further expert as he wanted a second opinion.Theclaimantsoughtpermission to: (i) amendhisparticularsofclaimandhisfirstwitnessstatement;(ii)serveanewpsychiatricreport;(iii)serveawitnessstatementbyathirdparty;(iv)serveasupplementarystatement.

Inrelationtothepsychiatricreport,theclaimantsubmittedthat there was an imbalance between his second expert’s report and the first defendant’s, with the second expertbeing a psychotherapist and the first defendant’s experta professor of psychiatry, and so a second opinion wasneeded.Thefirstdefendantsubmittedthattherehadtobeclosepolicingofexpertsandthattheclaimantwasexpertshopping.Itwasfurtherarguedthatthatthetrialwasfixedfor November 2015 and there had not been time to consider thenew report.Allowing theapplication,butonly inpart,theHighCourt judgeheldthatthefirstdefendanthadnotobjectedtotheclaimantamendingtheparticularsofclaimor his first witness statement and the court granted himpermissionhimamendthem.

‘Under CPR 35.1 expert evidence was restricted to that which was reasonably required to resolve proceedings’The court had a discretion to manage proceedings in awaywhichbest reflected theoverridingobjectiveand theguidanceundertheCPR.UnderCPR 35.1 expert evidence was restricted to that which was reasonably required to resolveproceedings.Theclaimantandfirstdefendanthadboth instructed a medical expert and that evidence on the faceofitwasmorethansufficienttoresolvetheproceedings.In Edwards-Tubb (2011) theCourtofAppealhadindicatedthat thereshouldnotbeaknee-jerk reaction that refusedapartytherighttorelyonasecondexpertreportbecauseoflossofconfidenceinthefirst.However,thatwasnotthepositionintheinstantcase.Theclaimanthadinstructedhisfirst expert, subsequently lost confidence in himandhadalready instructed a second expert. The second expert’sreport had been obtained and served. It was that reportthathadbeenconsideredbythefirstdefendant’sexpert.Itsupportedtheclaimant’scaseandwassufficienttoresolvethe proceedings. The new expert had been instructedwithout any notice to the first defendant or the court,wherethetrialdatewasinlessthanfivemonths.Itwasnotappropriatetograntrelieffromsanctions.

Therewasnoseriousprejudiceinallowingthethirdparty’switness statement to be served and the court grantedpermission.

The claimant’s supplementary statement dealt with the same issuesasinhisfirstwitnessstatement.Itwasunnecessaryforresolvingtheproceedings.

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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