Personal Injury Issue 35 - Gavin Henderson

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1 Personal Injury Issue 35 - Gavin Henderson Welcome to the August edition of SMIB - more dependable than the predictions of a BBQ summer. We report on cases that consider whether there is a right to a jury, the responsibility for the acts of others, ex turpi causa and even a rare decision on a tripper. If you would like more information about these or any other cases please contact me by telephone at our Edinburgh office or by ing: gavin.henderson@simpmar.com If you would like a hard copy of this bulletin or if you would like to be taken off the circulation list then please contact Celia by phone or celia.lauder@simpmar.com

2 The consequences of crime Gray v Thames Trains and Others [2009] UK HL30 The defendants negligence was responsible for the Ladbrook Grove rail crash on 5 October Mr Gray sustained minor physical injuries in the crash, but significant psychiatric injury in the form of Post Traumatic Stress Disorder (PTSD). On 19 August 2001 while suffering from PTSD he stabbed to death a pedestrian following an altercation. He pleaded guilty to manslaughter on the grounds of diminished responsibility caused by PTSD. Mr Gray then brought an action for negligence. As part of his claim he sought to recover loss of earnings for the period during which he was detained after the killing and also general damages for his detention, conviction, feelings of guilt and remorse, damage to reputation and an indemnity against any claims which might be brought by dependants of the deceased. The defendants accepted liability for the physical and mental injuries but maintained that Mr Gray s claim for loss of earnings and general damages effectively came to an end when he killed Mr Boultwood. The defendants sought to rely upon the principle that these losses were irrecoverable because of public policy which prevents someone from obtaining compensation for the consequences of his own criminal act: ex turpi causa non oritur actio. In the opinion of Lord Hoffmann the maxim ex turpi causa expresses not so much a principle as a policy. The rule may be stated in a wide or a narrow form. The wider interpretation is that you cannot recover the damage which is the consequence of your own criminal act. In its narrower interpretation, you cannot recover for damage which is the consequence of a sentence imposed upon you for a criminal act. The narrow version of the rule is based on the requirement for consistency between civil and criminal law. Reference was made to the Law Commission consultation paper, The Illegality Defence (number 160, 2001) which commented: it would be quite inconsistent to imprison or detain someone on the grounds that he was responsible for a serious offence and then to compensate someone for the detention. As an alternative to his loss of earnings claim it was submitted that on the balance of probabilities he would have continued to lose earnings even if he had not killed Mr Boultwood. In the opinion of Lord Rodger this approach was to say the least unreal. He further commented that: In the present case, when considering the claim for loss of earnings, a civil court should bear in mind that it is desirable for the criminal and civil courts to be consistent in the way that they regard what the claimant did. Mr Gray was detained in hospital and unable to work it was therefore inconsistent with the policy underlying the making of the orders for a civil court now to award the claimant damages for loss of earnings relating to the period when he was subject to them.

3 It was held that the narrow interpretation of the ex turpi causa rule was sufficient to dispose of Mr Gray s claims for loss of earnings after his arrest and for general damages for his detention, conviction and damage to reputation on the grounds that they were all caused by the lawful sentence imposed upon him for manslaughter. As for the claim for indemnity and feelings of guilt and remorse, however, the wider version of the rule should be applied. Lord Hoffmann considered that the wider rule was justified on the ground that it would be offensive to public notions of the fair distribution of resources that the claimant should be compensated (usually out of public funds) for the consequences of his own criminal conduct. In summary the House of Lords held that Mr Gray should not be compensated for his loss as a claim of this kind undoubtedly falls foul of ex turpi causa maxim since the claimant is asking the defendant to compensate him for the consequences of his own deliberate criminal act in killing Mr Boultwood. It was observed that a civil court will not award damages to compensate a claimant for an injury or disadvantage which the criminal courts of the same jurisdiction have imposed on him by way of punishment for a criminal act for which he was responsible. Contributed by Nicola Brown

4 Is the jury right for you? Carol Anne Miller v Yum! Restaurants (UK) Ltd - Glasgow Sheriff Court June [2009] A pursuer can raise an action in the Court of Session for any claim with a value in excess of 5,000 but they can also raise higher value claims in the sheriff court. If a personal injury claim is raised in the Court of Session it will proceed in accordance with the personal injury rules that impose a timetable on both parties. Often cases will reach a trial within 12 months of being issued. The same rules currently do not apply in the sheriff courts. The exception is Glasgow Sheriff Court, which is running a personal injury pilot scheme. Ms Miller raised a normal action at Glasgow Sheriff Court and it was, by consent of both parties, included in this scheme. This meant that the case was subject to case management conferences on a timetable agreed by the judge and solicitors. The aim was to ensure expeditious progress of the case. However, it created a drawback for the pursuer it is not possible in the sheriff court to have the case determined by a civil jury. Ms Miller changed solicitors in the course of her action and her new solicitors considered that the case should be sent to the Court of Session, to be heard by a jury. Ms Miller s solicitors submitted that she should be entitled to have her case sent to the Court of Session, in order to exercise her right to a jury trial. This case was described as of great importance to Ms Miller personally. It had impacted upon all aspects of her life. She would have the assistance of junior and senior counsel in the Court of Session and, while acknowledging the competence and capability of the sheriff court to deal with the case, it was submitted that the Court of Session rules would encourage proactivity, as well as obliging parties to meet and discuss matters. In response, the defenders challenged the suggestion that there was a right to jury trial, and also pointed out that the pilot scheme was devised to provide for pro-activity, hands on case management and open discussion in the sheriff court. An eight day trial could be fixed within six months in the sheriff court. Finally, while the injuries sustained were doubtless serious to the pursuer, those in cases relied upon by Ms Miller were significantly more serious or complex. The sheriff considered that he had a wide discretion, but had to take a commonsense view of whether, taking into account the requirements of justice, it was appropriate to remit to the Court of Session. Was the case important or difficult? Was there the potential for increased delay or expense?

5 Considering the decision to use the sheriff court, and the pilot scheme, the lack of change of circumstances since and the delay inherent in any remit, and in spite of the severity of injury, the sheriff held that remit was not appropriate. The availability of jury trial added relatively little to the analysis, and any positive factors were offset by the negative effect of the delay it would cause. Every motion to send a case to the Court of Session will be considered on its own merits. However the option of a jury trial will not entitle the pursuer to change courts - particularly where nothing has changed since the initial decision to litigate in the sheriff court. Contributed by Lesley Allan

6 Looking for a bad trip? Nugent v GCC [2009] CSOH88 Although a great many claims are pursued against local authorities across Scotland because of tripping accidents, it is rare for any to lead to a decision from the court. This judgment is not earth-shattering, but anyone who ever has to deal with a tripper will find reading Lord Brodie s decision a useful exercise. In Nugent the court considered an issue which the courts have had to grapple with for decades, namely, when does a pavement defect become a foreseeable danger so as to require a repair. Both north and south of the border the courts have adopted a cautious approach, shying away from any declaration of a specific measurement of a defect which will be regarded as a danger - see, for instance, McClafferty v British Telecommunications Plc 1987 SLT 327. Mrs Nugent s counsel sought to establish fault by relying upon the 2005 Code of Practice relating to the upkeep of roads. The council was criticised for failing to instruct its roads inspectors to carry out repairs where the defects were in excess of 20mm in depth. However, this approach did not succeed in establishing a specific bench mark for the measurement of a pothole which ought to be regarded as a danger. Lord Brodie found that the hole in the pavement which caused Mrs Nugent s fall was, at the accident date and at the date of the last routine inspection a month before the accident, not much less than 30mm at its deepest point. It was argued that the full depth of the hole represented an abrupt change of level, echoing language in the Code of Practice. Lord Brodie, however, considered that an abrupt level difference was in effect a vertical edge or what is often called a tripping point. This supports an argument often advanced by defenders, namely that you cannot simply take the measurement of the deepest part of the hole as determinative; its overall characteristics, and in particular whether it presents a sharp tripping point, may be of greater significance. Lord Brodie also noted that there are a number of factors which will be relevant in assessing the safety or otherwise of a defect, including the nature of the traffic, its location relative to highway features such as junctions and bends, and its location relative to users of the area. What can we take from the Nugent case? As has always been the case, the question of whether a particular defect is a danger is, in borderline cases, not likely to be determined solely by the depth of the defect. The actual tripping point will be significant, but other factors will be relevant as well.

7 One such significant factor is whether the council had an inspection regime at all. The council could have argued that the defect was not actionable even if they had no inspection regime. However, in practice a court is very much more likely to hold that a defect is not a danger if the court is satisfied that the roads department did in fact operate a reasonable system. Also, in Nugent the judge appeared to have been impressed by the quality of the council s witnesses, particularly the inspector. The inspections were carried out monthly, on foot. The inspector did identify the defect as requiring repair during an inspection five months after the accident, and this could have been a weakness in the council s case. However, the fact that he had eventually identified the defect as requiring a repair supported the finding that there had simply not been an actionable defect at the earlier dates. Perhaps the court was stating the obvious: taking reasonable care in the maintenance of your pavements is likely to help in defending claims by trippers. Contributed by David Pollok

8 A rotten apple for the teacher Shaira Alexis v London Borough of Newham [2009] - EWHC 1323 In this case the claimant was employed as a teacher at Brampton Manor School. She taught English and was having particular difficulty with her GCSE Media Studies class, but those difficulties were not known to the rest of the school staff. Ms Alexis suffered physical and psychological injuries when, on 10 February 2005, she took a drink from a bottle of water which she kept in her classroom. Unknown to her one of her pupils had added whiteboard cleaning fluid to it. She sued London Borough of Newham as her employer and as the authority responsible for the school. The basis of her case was that a fellow teacher was negligent in giving the keys of her classroom to two pupils, including the poisoner, on the previous day contrary to the established practice that pupils should not be given unsupervised access to classrooms. Brampton Manor School had been a troubled school, but by 2001 it was described as a school that the local community could rightfully feel proud of. The judge found that the school had a policy to ensure that pupils were not to be left unattended in classrooms, empty classrooms were to be kept locked and only staff and other authorised personnel were allowed possession of classroom keys. This was said to be a commonsense approach, not a strict rule or a written policy. The claimant s case was that it was foreseeable that children left unsupervised might get up to mischief, the mischief might consist of theft or damage to property, but also conduct which might result in injury to other pupils or to teaching staff. If that was true then the defendant was under a duty to take reasonable steps to prevent such injury and in particular to adhere to its policy of locking classrooms so as to minimise the risk of injury being caused as a result of mischief by pupils. The court approached this problem by first of all considering foreseeability. The court referred to Lamb v Camden London Borough Council [1981] IQB 625 where Oliver LJ said that where the consequence the court is considering is one which results from or would not have occurred but for the intervention of some independent human agency over which the defendant has no control, it has to ask what could be reasonably foreseen by the defendant and thus the damage for which he is responsible. The question, therefore, is on what basis can the act of the independent human agency be attributed back to the defendant? The court also referred to Smith v Littlewoods Organisation Ltd [1987] 1 AC 241 where the court said that what a reasonable man is bound to foresee in a case involving injury or damage by independent human agency is the probable consequences of his own act or omission.

9 The court in this case said that there was nothing to suggest that it was foreseeable to the teaching staff that any pupil might seek to poison another teacher. The judge also said that what took place could be regarded as being the same type of behaviour which was foreseeable if pupils got up to mischief, but the precise behaviour which took place here was not reasonably foreseeable. The judge went on to say that to establish a duty of care there needs to be more than the fact that loss or damage is foreseeable. The behaviour was not so improbable as to render it unreasonable or unjust to impose upon the defendant a duty to take reasonable precautions to prevent or minimise the risk of injury. The judge concluded that the education authority did owe a duty of care to take reasonable steps. However, he did not accept that the duty had been breached. The judge said that with the possible exception of the claimant none of the teachers had any reason to suspect that the pupil was likely to do what she did. Clearly if the pupil involved had a prior history of this sort of behaviour then it is likely that the court would have found that a breach of duty of care had been established. Contributed by Catriona Stewart

10 Antenatal care: testing and independent contractors JS v Lothian Health Board [2009] CSOH 97 In July 1994 JS and her husband underwent screening to ascertain whether they were carriers of the cystic fibrosis gene. JS was advised that the result of the screening was negative, but her son was subsequently born with cystic fibrosis. She claimed that she would have terminated the pregnancy if she had been told that the foetus had cystic fibrosis, and sued Lothian Health Board alleging negligence because the screening was not carried out properly. As part of her antenatal care JS was referred by her GP to a Consultant Obstetrician at the Eastern General Hospital in Edinburgh. In common with other women she was sent a leaflet entitled Cystic Fibrosis Carrier Testing for Couples. The leaflet gave no indication of its author, and it explained that the screening was by means of a mouthwash. If JS wished to proceed with the testing she was required to bring along a sample from her husband to her first appointment at the antenatal clinic. She was to give her own sample at the clinic. Initially only her sample was to be tested and if the result was positive then her husband s sample would also be tested. If both samples returned positive results, the mother would be referred to genetic counselling and further testing at the hospital to ascertain for certain whether the foetus had cystic fibrosis. The leaflet issued to JS stated that in the event that the foetus had cystic fibrosis, one option open to her was to consider termination of the pregnancy. In the case of JS the Health Board accepted that her mouthwash sample was taken at her initial appointment at the Eastern, and they also accepted that it was reported to her that the results of the test were negative. It is now known that the sample given by JS demonstrated a positive result, but was of poor quality and ought to have been repeated. Both JS and her husband are carriers of the cystic fibrosis gene, and any child born to them has a significant risk of developing the condition. The Health Board sought to avoid liability and have the case against them dismissed because the testing was carried out by a body independent of the hospital, the Human Genetics Unit of the University of Edinburgh. The Health Board argued that the testing was not funded by them nor carried out by an employee of theirs, but rather by an employee of the University. On that basis, they asserted that they were not responsible for ensuring that independent scientists exercised reasonable skill in carrying out the testing. It was suggested that JS ought to sue the employers of those scientists, the University.

11 To complicate matters further these scientists were geographically located in another of the Health Board s hospitals. The indication from the pleadings was that the scientists worked in close proximity to Health Board employees carrying out similar duties. In this case JS s sample had been analysed by an employee of the University. JS asserted that due to the close working relationship between the scientists and the hospital it was impossible for JS to know exactly who would look at her samples. At a debate on the legal basis of JS s claim the arguments focussed mainly on the existence of a nondelegable duty of care. However, in deciding the issue Lady Stacey placed importance on the fact the leaflet was sent to JS by the hospital and there was nothing in it that indicated the testing would be carried out by anyone other than the hospital. The leaflet made it clear that should the test results be positive, then it would be the hospital that would arrange for JS to receive further information and testing. On that basis Lady Stacey concluded that the core issue was not whether the hospital had control of the scientists who carried out the screening, but rather whether the hospital had assumed responsibility for the wellbeing of JS. In that regard she commented that the factual circumstances surrounding the testing and JS s perception of the circumstances surrounding the testing would assist in determining that issue. Lady Stacey therefore felt that it would be appropriate to allow the matter to proceed to a trial. This decision is only a first step for JS. It represents only one hurdle in what will no doubt turn out to be a series in a case of such complexity. While the judge acknowledges the existence of a possible duty, the scope of that duty is yet to be determined. Lady Stacey s circumvention of the non-delegable duties argument is of interest. Her adoption of an assumption of responsibility rationale prevents a defence based upon the instruction of an ostensibly competent independent contractor. Contributed by Caroline Gordon

12 Typical damages in whiplash cases On 4 August 2009 Sheriff Principal Dunlop refused the appeal in the case of Wilson v Riaz and in doing so provided clear guidance on the level of general damages appropriate for cases concerning typical whiplash injuries. The pursuer appealed against the damages awarded to her for the personal injuries she sustained in a road traffic accident. In April 2007 she was a passenger in her husband s vehicle when it was struck from behind, throwing her forward and causing her to suffer a soft tissue injury to her neck. On medical examination no major injury was found, but she was provided with a soft collar and prescribed analgesics. By September 2007 her condition was mostly asymptomatic, although she still suffered from slight neck discomfort. A medical report stated that she would fully recover from her injuries by April 2008, a year after the date of the accident. Referring to a number of similar decisions concerning the award of solatium, the sheriff at first instance (a certain M P Anderson) assessed damages at 2,000. While he accepted that this type of injury was in no way insignificant, he drew attention to the fact that the pursuer s injuries had largely disappeared after four and a half months. The pursuer appealed, arguing that the sheriff had failed in his assessment to take proper account of the total time that she had suffered, thus leaving her uncompensated for a period. She argued that the sheriff had erred by making an award based on the opinion that she had fully recovered from her injuries by September It was submitted that this had not been the case and that her symptoms continued for a further seven and a half months. On appeal, Sheriff Principal Dunlop stated that the decision of the sheriff should be considered as a whole and that the pursuer was mistaken to place great emphasis on only one element of his judgment. He held that it was clear the sheriff had considered the ongoing injuries the pursuer was suffering from and had taken account of these in making his award. Sheriff Principal Dunlop went on to hold that as he saw it, the sheriff had considered that the damages applicable for the post-september 2007 period would have been insignificant and, on this basis, it was fair to fix September 2007 as the date at which judicial interest should begin to run at its full rate. He added that this was consistent with the opinion that by this time the main symptoms were resolved. The sheriff was in the best position to conclude this. He refused the appeal and held that the sheriff s award for damages was appropriate. This decision is of some importance in that it provides clear guidance for the appropriate level of damages for such whiplash injuries. Although the amount awarded will obviously vary slightly depending on the particular

13 circumstances of each case, this judgment confirms that damages of 2,000 is appropriate for a whiplash injury where there has been almost complete recovery within a few months. It is also in line with the decision of Sheriff Principal Bowen in Ashton v Skews (2009 GWD 6-97) where on appeal general damages of 2,000 were awarded for similar injuries. These two recent cases provide up-to-date and clear guidance on expected awards for minor whiplash claims in Scotland. They will assist in holding down both claims inflation and the expectations of pursuers solicitors. Contributed by Jennifer Gammell and Jack Orr

14 Typical damages in whiplash cases On 4 August 2009 Sheriff Principal Dunlop refused the appeal in the case of Wilson v Riaz and in doing so provided clear guidance on the level of general damages appropriate for cases concerning typical whiplash injuries. The pursuer appealed against the damages awarded to her for the personal injuries she sustained in a road traffic accident. In April 2007 she was a passenger in her husband s vehicle when it was struck from behind, throwing her forward and causing her to suffer a soft tissue injury to her neck. On medical examination no major injury was found, but she was provided with a soft collar and prescribed analgesics. By September 2007 her condition was mostly asymptomatic, although she still suffered from slight neck discomfort. A medical report stated that she would fully recover from her injuries by April 2008, a year after the date of the accident. Referring to a number of similar decisions concerning the award of solatium, the sheriff at first instance (a certain M P Anderson) assessed damages at 2,000. While he accepted that this type of injury was in no way insignificant, he drew attention to the fact that the pursuer s injuries had largely disappeared after four and a half months. The pursuer appealed, arguing that the sheriff had failed in his assessment to take proper account of the total time that she had suffered, thus leaving her uncompensated for a period. She argued that the sheriff had erred by making an award based on the opinion that she had fully recovered from her injuries by September It was submitted that this had not been the case and that her symptoms continued for a further seven and a half months. On appeal, Sheriff Principal Dunlop stated that the decision of the sheriff should be considered as a whole and that the pursuer was mistaken to place great emphasis on only one element of his judgment. He held that it was clear the sheriff had considered the ongoing injuries the pursuer was suffering from and had taken account of these in making his award. Sheriff Principal Dunlop went on to hold that as he saw it, the sheriff had considered that the damages applicable for the post-september 2007 period would have been insignificant and, on this basis, it was fair to fix September 2007 as the date at which judicial interest should begin to run at its full rate. He added that this was consistent with the opinion that by this time the main symptoms were resolved. The sheriff was in the best position to conclude this. He refused the appeal and held that the sheriff s award for damages was appropriate. This decision is of some importance in that it provides clear guidance for the appropriate level of damages for such whiplash injuries. Although the amount awarded will obviously vary slightly depending on the particular

15 circumstances of each case, this judgment confirms that damages of 2,000 is appropriate for a whiplash injury where there has been almost complete recovery within a few months. It is also in line with the decision of Sheriff Principal Bowen in Ashton v Skews (2009 GWD 6-97) where on appeal general damages of 2,000 were awarded for similar injuries. These two recent cases provide up-to-date and clear guidance on expected awards for minor whiplash claims in Scotland. They will assist in holding down both claims inflation and the expectations of pursuers solicitors. Contributed by Jennifer Gammell and Jack Orr

16 Ruff justice? Patricia Welsh v Ian Brady [2009] CSIH 60 Another shaggy dog story from the Court of Session. In the late afternoon of 14 March 2005 Mrs Welsh took her golden retriever, Cava, for a walk in the open fields to the south of the village of Wellbank, near Dundee. Mr Brady had also decided to walk his dog, a black labrador named Ebony, at the same location. Given the open space, both owners let their respective dogs off the lead to allow them to run around freely. Ebony was a large, lively and boisterous dog, weighing approximately 25 kilograms. She was a playful dog and did not always respond to verbal commands to return to her owner. The two dogs were playing together as their owners walked through the field. Mrs Welsh stopped walking, turned around and called Cava come. At that point both dogs ran towards her. Ebony collided with the inside of Mrs Welsh s right knee and knocked her over. Unfortunately, she suffered a serious injury to her right knee and sued Mr Brady for damages at common law and under Section 1 of the Animals (Scotland) Act The case was heard at first instance by Lord Malcolm [2008] CSOH 45. He decided that Mr Brady was not in breach of his duty to take reasonable care as there was no good reason for him to foresee that, if Ebony was allowed to run off the lead, Mrs Welsh might suffer injury. He also considered that he was not strictly liable under the Animals (Scotland) Act Mrs Welsh appealed the decision to the Inner House of the Court of Session the Scottish appeal court in respect of Lord Malcolm s decision under the Animals (Scotland) Act Section 1(1) of the Act sets out three criteria which must be present to establish strict liability for damage caused by an animal. It provides that a person shall be liable for any injury or damage caused by an animal if (a) at the time of the injury or damage complained of, he was a keeper of the animal; (b) the animal belongs to a species whose members generally are by virtue of their physical attributes or habits likely (unless controlled or restrained) to injure severely or kill persons or animals, or damage property to a material extent; and (c) the injury of damage complained of is directly referable to such physical attributes or habits

17 Mrs Welsh argued that in running at a fast speed towards her Ebony was behaving in a manner typical of labradors if neither controlled or restrained. The injury that she suffered was directly referable to that behaviour. The court however considered that the pertinent question to ask, under the statute, was Are fully grown black labradors, by virtue of their physical attributes or habits, likely (unless controlled or restrained) to injure severely or kill persons or animals? They considered that the evidence fell considerably short of establishing an affirmative answer to that question. The pursuer was barking up the wrong tree. The evidence went no distance at all towards demonstrating that black labradors... are, by virtue of their physical attributes or habits, likely to injure severely or kill persons or animals. As Lord Malcolm pointed out, the proposition that black labradors are likely to severely injure or kill, unless restrained or controlled, would cause much incredulity for the general population. What happened to Mrs Welsh was an unfortunate accident. The Inner House were no doubt also mindful of the fact that people in Mr Brady s position do not necessarily have appropriate insurance in place. It seems unlikely that Mrs Welsh will appeal to the House of Lords. Hopefully therefore that is the end of this sorry tail. Contributed by Duncan Batchelor

18 News The partners are delighted to announce the admission of Lynne Macfarlane as Solicitor Advocate with rights of audience in the Court of Session. Lynne adds much needed glamour to our Advocacy Unit!