legal watch - personal injury - issue 9
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Plexus Law / Greenwoods NewsletterTRANSCRIPT
Legal WatchPersonal InjuryMarch 2014
Issue 009
02
Biddick (deceased) v Morcom (2014) EWCA Civ 182 is a
case which deals with a householder’s liability towards
a contractor, injured whilst working at his property. It
illustrates the level of involvement required on the part of the
householder to attract liability for the contractor’s injuries.
The appellant/defendant, the personal representatives of
the deceased householder, appealed against a judgment
that his estate was liable to the respondent/claimant in
negligence. The claimant cross-appealed against a finding
that he was two-thirds contributorily negligent.
The claimant, a multi-skilled tradesman, had been seriously
injured while fitting insulation in the deceased’s loft. Entry
to the loft was via a ladder through a hinged hatch door,
which opened by being pulled downwards with a long
pole. A hook in the pole could be used to lock the door.
The deceased, who was 80 years old, suggested that while
the claimant was insulating the inside of the hatch door, he,
the deceased, would stand underneath, keeping the door in
the locked position with the pole to prevent the mechanism
working itself loose from the vibrations of the claimant’s
drill. The claimant thought that was a fanciful possibility, but
agreed to the proposal. The claimant fell through the loft
aperture when the deceased left his position to answer the
phone.
The claimant’s primary case was that the hatch opened as
a result of vibration. The judge rejected that claim. He also
rejected the possibility that the claimant had fallen on the
door. He thought it most likely that the lock had not been fully
in position and that the claimant had overreached himself,
applying a degree of force to a hatch door that was only
partially supported. He concluded that if the deceased had
not involved himself in the work performed by the claimant,
Events
Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next months:
MBIG Seminar 22.05.2014 - Wellcome Collection,
London, NW1
In This Issue:
• Occupiers’ liability
• Employers’ liability
• Jackson/Mitchell
• From within Plexus
• Watch this space
Occupiers’ liability
03
there would have been no basis for a finding of negligence,
but that he had brought himself into close proximity with
the claimant by virtue of his proposal. Leaving his position
to answer the phone, the deceased had failed to exercise
his duty of care to the requisite standard and was liable
to the extent of a third. The issues on appeal were (i) the
cause of the claimant’s fall; (ii) the alleged duty of care by
the deceased; (iii) the extent of contributory negligence by
the claimant.
Rejecting both the appeal and cross-appeal, the Court of
Appeal found on the evidence, it was impossible to say that
the judge had arrived at a conclusion regarding the cause of
the claimant’s fall which had not been open to him .
The deceased had assumed responsibility, not for bearing
the claimant’s weight if he happened to fall on the hatch door,
but for undertaking to ensure that the latch remained closed.
In involving himself in a potentially hazardous activity, he put
himself in a degree of proximity to the claimant such that
it was foreseeable that if he neglected his task, the hatch
might work itself open and cause the claimant to fall and
suffer injury. It was fair and reasonable to find that a duty of
care had arisen. Even though the deceased’s concern had
been vibration, and vibration had not been found to be the
cause of the hatch opening, the deceased had nevertheless
chosen to abandon his post, which was a breach of his duty
of care. While reliance was a prerequisite in economic loss
cases, it did not matter that the claimant had not relied on
the deceased’s input. Once the deceased had undertaken
to ensure that the hatch remained closed, he had a duty to
perform that task carefully even if the claimant did not see
his role as an element in his own safety.
“...the deceased had…. chosen to abandon his post, which was a breach of his duty of care”The judge’s reasoning for the apportionment of liability was
entirely sound: The deceased had been negligent in failing
properly to perform the small task which he undertook, but
the claimant was principally to blame for the unsafe method
of work which he chose to adopt.
Biddick (deceased) v Morcom (2014) EWCA Civ 182
04
Employers’ liabilityIn the case of Humphrey v Aegis Defence Services Ltd [Lawtel
05/03/2014] the claimant, a former marine, had worked as
a close protection escort for military personnel in Iraq under
contract to the defendant in teams which included Iraqi
interpreters. Physical fitness was a condition of his contract
and he was regularly tested. Interpreters were also tested
but were less motivated to be physically fit as they were in
short supply and were likely to be employed even if they
failed. During a test, held in the afternoon, a team of four
men, including an interpreter, carried a man on a stretcher
by one handle each. The team was briefed by an instructor,
a medic was present, participants were asked if they had
any injuries before and after the test and a supervisor ran
alongside the teams during the exercise. Participants had
been given a week’s notice. The claimant had read the
standard operating procedure instructions which stated
that it was the responsibility of individuals to bring safety
hazards to the attention of team leaders. He told the court
that he had had reservations about the interpreter’s capacity
from an early stage as he had looked uncomfortable wearing
the heavy, specified kit. During the test and without warning
the interpreter let go of his handle, causing the claimant’s
arm to be wrenched downwards, injuring his shoulder.
The defendant had been in control of the fitness test and
accepted that they had owed the claimant a duty of care.
Rejecting the claimant’s claim, the deputy High Court judge
held that interpreters were usually civilians rather than ex-
military and fitness was not such an important part of their
lives. It was sensible for the defendant, who had made real
efforts to increase the interpreters’ fitness levels, to include
them in training exercises, but they had previously lost
their grip on stretchers and dropped out of exercises. The
claimant and other contractors grumbled about them and
their different treatment, but had made no formal complaints
about their impact on safety even though individuals were
responsible for bringing safety hazards to the defendant’s
attention. The claimant was a former soldier who took
his duty, to himself and his colleagues, seriously. It was
foreseeable that an unfit interpreter would drop a stretcher,
but foreseeable only that it would cause minor soft tissue
injury rather than serious injury.
“It was foreseeable that an unfit interpreter would drop a stretcher, but foreseeable only that it would cause minor soft tissue injury rather than serious injury.”The defendant had carried out a risk assessment and
reviewed it immediately before the test. The interpreter had
not indicated that he would give up and no concern had
been voiced by the claimant or other team members to the
supervisor. The weight being carried on the stretcher was
not excessive and, while the test was conducted in the
afternoon, there was no evidence that it was excessively
hot or that heat exhaustion was a causative factor. The
injury was plainly caused by the interpreter’s unfitness and
decision to stop. The protocol was to replace a team member
who showed signs of injury or high fatigue, but a fitness test
had to simulate actual conditions, so prematurely removing
someone who was out of breath would have rendered the
test worthless. The interpreter showed signs of strain but
the claimant and the supervisor had had the opportunity to
observe him and neither considered him to be a risk to their
safety. The supervisor had the primary responsibility, but the
team members knew their responsibility to each other and
there was no evidence that they mentioned anything among
themselves or halted to give the interpreter a rest. They did
not believe that he represented a hazard and it was thought
05
that the team was within safe parameters.
The defendant’s work in Iraq was a desirable activity within
the meaning of the S1 Compensation Act 2006. Interpreters
were essential and it was reasonable to apply more lenient
fitness standards to them because of their scarcity. If
the purpose or social value of an activity was sufficiently
important, it justified an increased assumption of risk. It
was reasonable of the defendant to require interpreters to
take part in the test even if they were not at the minimum
standard of fitness, which introduced extra danger, but if
that risk was not taken important work would have been
prevented. The court was not persuaded that the defendant
had not monitored the exercise carefully and was not
satisfied that there had been a failure of duty of care.
A second case under this heading is McCade v Critchlow
and others [Lawtel 04/03/2014]. It includes a brief review of
the threshold that a claimant must establish to found a claim
for work related stress.
The claimant was employed by the fourth defendant firm of
solicitors as a paralegal. The first and second defendants
were partners in the firm and the third defendant was the
managing partner. The claimant’s employment was lawfully
terminated for gross misconduct, after which she brought
employment tribunal proceedings for sex discrimination
which were dismissed. Following the termination of
her employment, she was diagnosed with paranoid
schizophrenia. She alleged that, whilst employed by the
fourth defendant, she had not received the training, support
and feedback that she would expect as a paralegal. She
considered that she had been doing work for which she had
not been employed, namely secretarial work, which demotion
to administrative status she perceived as sex discrimination.
The claimant made allegations of professional misconduct
against the second defendant claiming she had received
incomplete instructions from him and that he had failed to
provide any helpful guidance and support, in breach of the
implied duty of mutual trust and confidence. The claimant
also alleged that that had caused her distress and that, in
failing to see the second defendant as a problem, the fourth
defendant had been negligent. She further alleged that she
had caught the first defendant “backstabbing” her and that
he had neglected her. The claimant contended that the third
defendant had been aware that she had been sidelined from
paralegal work and of the stress caused to her as a result of
the conduct of and issues experienced with the first three
defendants.
The claimant conceded in the witness box that the
evidence showed that not only had the second defendant’s
instructions been appropriately formulated, but that her
response to them had been inadequate or incorrect.
Dismissing the claim, the deputy High Court judge held
that the claimant was an unreliable witness, as was evident
from the inconsistency of her complaints, her concessions
on important matters and her assertions about the second
defendant. Her criticisms of all four defendants were
rejected; they had been unwarranted and unfair. Conversely,
the testimony of the first three defendants was accepted.
“the indications of impending harm to health arising from stress at work had to be plain enough for (the defendants) to realise they should do something about it”The first and second defendants had done their best in
a competent manner consistent with the implied duty
of mutual trust and confidence. The claimant had been
provided with work within the ambit of her employment
contract; the tasks given to her had fallen within work
properly given to a paralegal without a hint of unequal
treatment or discrimination. The defendants had not (a)
intended to demote, ostracise or leave the claimant lacking
in support; (b) failed to provide adequate guidance; (c)
engaged in sexual discrimination or other unequal treatment.
The factual basis relied upon had simply not been made
06
out. There had been no proven breach of duty arising under
contract or at common law. The threshold that the claimant
had to establish order to trigger a duty on the defendants to
take steps to prevent injury in the workplace, namely that
the indications of impending harm to health arising from
stress at work had to be plain enough for them to realise
that they should do something about it, was not made out.
There was no evidence that the claimant had demonstrated
signs of stress at work or that she had provided indications
of impending harm to health that would properly allow the
court to find a causal connection between the development
of her paranoid schizophrenia and her employment. It was
possible for stress to be caused by an employer’s conduct
whereby an employee was starved of duties he had been
employed to undertake, however there was no factual basis
to support such a conclusion. The claimant had failed to
establish any injury sounding in damages attributable to
her complaints about her workplace experiences. The claim
was hopeless.
Humphrey v Aegis Defence Services Ltd [Lawtel
05/03/2014]
McCade v Critchlow and others [Lawtel 04/03/2014]
07
Jackson/MitchellThis week’s case under this heading is Associated Electrical
Industries Limited v Alstom (UK) (2014) EWHC 430 (Comm)
The claimant had claimed an indemnity or a contribution
from the defendant in respect of a claim brought against
the claimant and the defendant for damages following a
former worker’s death from mesothelioma. The claimant
served its claim form in September 2013. The defendant
filed an acknowledgement of service on 1 October stating
its intention to defend the claim, giving the claimant until 29
October to serve the particulars of claim. On 29 October,
the claimant requested an extension of time from the
defendant. The defendant refused and made its application
on 13 November. The claimant served the particulars on 18
November and applied for a retrospective extension of time
in January 2014. The court considered (i) the relevance of the
timing of the claimant’s extension application; (ii) whether its
non-compliance was trivial; (iii) whether there was a good
reason for non-compliance; (iv) whether the possibility of
the claimant issuing fresh proceedings was relevant; (v) the
balance of justice, having regard to the requirements of the
CPR.
“It was not for the instant court to determine whether a second action should be struck out as an abuse.”The High Court judge held that the timing of the extension
of time application was inconsequential so far as it
concerned criticism of its delay after the issue of the
defendant’s strike-out application. Cross-applications for
extensions of time had little practical purpose: the court
had to hear two applications which were two sides of the
same coin. However, that did not answer the criticism that
the claimant had not applied for an extension before the 29
October deadline or retrospectively between 29 October
and 13 November. The failure to apply for an extension
before 13 November did not give the CPR’s time limits the
respect that was demanded.
The claimant could have asked the defendant for an
extension long enough before the deadline to enable it to
apply to court if necessary; by the time it had asked, any
application would have to be made retrospectively. That
displayed indifference to compliance with the CPR. The
period of non-compliance, 20 days, was not trivial.
Investigation of the claim had not been straightforward.
However, the claimant appeared to have carried out
investigations before issuing proceedings, and the
particulars did not reflect much by way of further
investigations into the key issue. There had been sufficient
time to draft the pleading after the claimant learned that the
claim was disputed. It had not shown good reason for not
serving the pleading by 29 October. Further, if difficulties
in investigating the claim had justified the particulars being
late, the claimant should have made a timely request for an
extension.
It was not for the instant court to determine whether a
second action should be struck out as an abuse. However,
if the defendant’s application were granted, there was the
real prospect that it would result in further litigation and the
substantive dispute being determined after more cost delay.
Courts were discouraged from giving too much weight to
the prospect of unprofitable hearings, but Mitchell did not
decide that that had always to be entirely disregarded.
If the decision depended only on what would be just and
fair between the parties, the court would not strike out
the claim and would extend time, given that the non-
compliance had been remedied after 20 days and had not
disadvantaged the defendant. However, the court had to
strike a balance between the interests of the parties and
08
the interests of others who might be affected. Nothing in
Mitchell suggested that the court should disregard justice
between the parties altogether. Where relief from sanctions
was sought, CPR 3.9 required the court to consider all the
circumstances; Mitchell said that considerations other than
those specifically mentioned in CPR 3.9 were to be given
less weight. That did not mean that, when exercising all
powers under the CPR, the court had to give more weight
to those specific considerations than to other aspects of
the overriding objective and other relevant circumstances.
Mitchell’s guidance was directed to applications under CPR
3.9. However, that did not help the claimant. The court still
had to give effect to the overriding objective. The point at
issue was the importance of enforcing the requirements of
the CPR. It was considered that once the culture of a firm
line on enforcement was accepted, there would be fewer
applications under CPR 3.9. Although, as between the
parties, it was disproportionate to strike out the claim, the
emphasis given to enforcement of the CPR to encourage
procedural discipline led to the conclusion that the claim
should be struck out and the extension of time refused.
Associated Electrical Industries Limited v Alstom (UK)
(2014) EWHC 430 (Comm)
09
From within Plexus
Mirza v Norbert Dentressangle Logistics LimitedWe represented the defendant in this claim, brought by the
claimant following a road traffic accident. The defendant’s
lorry driver collided with the rear of a car owned by the
claimant. The lorry driver reported that the circumstances of
the accident were suspicious, indicating that the accident
had been staged. Those suspicions increased when claims
for personal injury were brought by, amongst others the
claimant, who later accepted that she was not in the car
at the time of the collision. None of the claims for personal
injury progressed, but the claimant pursued a claim for
damages for credit hire through Accident Exchange, and for
the loss of value of her car. The claim was valued at around
£46,000, predominantly credit hire.
During the course of the proceedings we obtained various
orders against the claimant, and in particular an order that
she disclose documentation in relation to her car, and if she
could not, that she explain who the car was sold to, when
it was sold, and how much she received for it. The claimant
did not comply with the order, and we obtained an unless
order, the default position being strike out. The claimant
complied with some, but not all of the requirements of the
unless order, and we obtained an order that the case be
struck out as a result.
The claimant made an application for relief pursuant to
CPR 3.9, and the matter came before DDJ Stacey sitting
in Walsall County Court on 17 December. He held that the
default by the claimant was not trivial, and that there was
no good reason for her default, and as such the sanction
should “usually” apply. However, this meant that the court
had discretion, and litigation had to be conducted justly.
Exercising that discretion he found that the case was ready
for trial, it was a large case, and that the defendant had
not suffered any prejudice, and indeed had obtained some
useful cross examination material for use at trial. In light of
this, and because the claimant had only failed to comply
with one order, her application was allowed and the case
reinstated.
That decision by DDJ Stacey was made the same day that
the Court of Appeal handed down judgment in Durrant v
Chief Constable of Avon & Somerset Constabulary (2013)
EWCA CA Civ 1624, Lord Justice Richards recording, inter
alia, “Equally, however, if the message sent out by Mitchell is
not to be undermined, it is vital that decisions under CPR 3.9
which fail to follow the robust approach laid down in that case
should not be allowed to stand. Failure to follow that approach
constitutes an error of principle entitling an appeal court to
interfere with the discretionary decision of the first instance
judge. It is likely also to lead to a decision that is plainly wrong,
justifying intervention on that basis too”
We appealed to the the designated civil judge, HHJ Gregory,
who heard the appeal on 3 March. He held that the decision
of DDJ Stacey was wrong. He had taken into consideration
factors that were irrelevant having found, quite correctly that
there was a non trivial default, with no good reason for it. It
followed that the decision of DDJ Stacey was reversed and
the claimant’s case stands struck out with our client’s costs
to be paid by the claimant.
Mirza v Norbert Dentressangle Logistics Limited
For further details contact:
Justin Collins
T: 0207 220 5928
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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The Discount RateIn response to a question put to the government in the
House of Lords the following statement was made:
“The discount rate is currently under review, and no decision
has yet been taken on what the rate should be or how it should
be set. This is a very complex issue, and the review is being
taken forward on as timely a basis as possible.”
Mesothelioma Act 2014As a result of The Mesothelioma Act 2014 (Commencement
No.1) Order 2014, substantial part of the Act and the
payment scheme that it introduces will come into force on
31 March.