Legal Watch: Personal Injury

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1 Legal Watch: Personal Injury 12th March 2015 Issue: 055

2 RTA liability/ex turpi causa The case of Flint v Tittensor (1) and MIB (2) (2015) EWHC 466 (QB) is the latest in a series of claims in which defendants have tested the boundaries of the defence of ex turpi causa. The claimant claimed that he had been out for the evening and had become separated from his group late at night when an incident occurred in which he was thrown form the bonnet of the first defendant s car. His mobile phone was out of charge and he was trying to borrow a phone in order to make a call. He had approached the first defendant, who was in his parked car outside a restaurant and asked if he could use his phone. The claimant alleged that the first defendant had refused in aggressive terms, whereupon he had slammed his hand on the car bonnet, causing a dent and the first defendant had driven forward towards him, forcing him onto the bonnet. According to the claimant, the first defendant had then reversed and driven forward again, shaking the wheel to throw him off. He had fallen to the ground and sustained severe head injuries. The first defendant s case was that the claimant had approached him in an aggressive manner and had challenged him to get out of the car. The claimant had put his hand down his trousers, causing the first defendant to believe that he had a knife. He claimed that he had edged forward without making contact with the claimant, but that the claimant had climbed onto the bonnet and began punching the windscreen while screaming abuse. The first defendant claimed to have been in genuine fear for his life and said that he had reversed before driving forwards in an attempt to dislodge the claimant from the bonnet of his car. At the time of the incident, the claimant had been drinking and had a history of aggressive behaviour. The issues were whether the claimant had proved a case in trespass to the person; whether the first defendant had acted in reasonable self-defence; and, if the first defendant failed to establish that his conduct was lawful, whether the claim was nevertheless In this issue: RTA liability/ex turpi causa Damages 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 The Wellcome Collection, London There is a limited number of seats still available for this event, so to avoid disappointment book your place now.

3 barred on public policy grounds because of the claimant s own illegal conduct. The High Court judge held that the first defendant had deliberately overstated the effect on him of the claimant s behaviour and tried to hide the truth of his own response to it. It was obvious that when he decided to drive forwards at speed with the claimant clinging to his bonnet and to swerve so that he would be thrown off, the claimant was in much more danger than he was. His statement that he believed the claimant to have a knife was invented between his first and second police interviews. Although the claimant had started the confrontation with his aggressive conduct, he had proved that he was injured by the first defendant s deliberate acts. He had not behaved in a way which caused the claimant to fear either for his life or that he was in danger of suffering really serious harm. The deliberate application of potentially lethal force to the claimant clearly involved hostile touching and was a battery, unless justified as reasonable self-defence. The first defendant had not explained why he did not simply reverse away from the claimant instead of driving towards him. Driving towards the claimant was not a defensive action because the first defendant was not in any physical danger from the claimant. It was not reasonable for him to believe that it was necessary for him to use force to defend himself. The use of the car was therefore not a reasonable or proportionate act and the defence of self-defence failed. where a person responded to provocation in a way which far exceeded what was reasonable he was not absolved from liability on public policy grounds Although the denting of the first defendant s car amounted to minor criminal damage, the first defendant was guilty of far more serious offences by his actions against the claimant. Although the Crown Prosecution Service had not brought charges against the first defendant, they had approached the case on the basis of the criminal standard of proof and decided that they would be unable to disprove his account. However, it was not necessary for a party to have been convicted of a crime before the civil court was able to act on the basis that he was in fact guilty of that crime. Any rule of law which operated to excuse serious and unlawful violence to any extent was not one which was obviously justifiable on public policy grounds. Therefore, where a person responded to provocation in a way which far exceeded what was reasonable and was a serious crime for that reason, he was not absolved from liability on public policy grounds. Where a claimant who had himself committed criminal conduct sustained injuries because a third party voluntarily committed a different kind of serious crime against him, his conduct did not in law cause those injuries for the purpose of the particular rule of causation applicable to self-defence. The first defendant s action in using the car as a weapon had therefore broken the chain of causation. Another case in which the defence of ex turpi causa had been dismissed was Delaney v Pickett. However, the court found that the claimant was not entitled to pursue his claim against MIB because of the operation of Clause 6(1)(e)(iii) of the Uninsured Drivers Agreement A High Court judge subsequently ruled that the clause was in breach of the UK s obligations under the First, Second and Third EU Motor Directives and that accordingly the claimant was entitled to Francovich damages. The case has now been before the Court of Appeal and is reported as Delaney v Secretary of State for Transport (2015)EWCA Civ 172. The defendant s appeal was dismissed. The court held that Article 1.4 of the Second Directive, either read in isolation or in conjunction with Article 2.1, the First Directive and the Third Directive, imposed obligations on member states in respect of damage caused by vehicles in relation to which a valid policy of insurance was taken out, but where that policy was 02

4 subsequently avoided by the insurer. A raft of EU decisions made it quite clear that a situation could not arise where the insurer s avoidance of liability left a victim without a remedy. The principal obligation to compensate lay with the insurer under Article 2.1 of the Second Directive, but if that was not satisfied then the national insurer of last resort, which in the UK was the MIB, had to step in under Article1.4. Thus the MIB had to pay compensation in circumstances where the insurer, for whatever reason, including the avoidance of an insurance policy for misrepresentation or non-disclosure by the insured, owed no liability in respect of the victim s claim. That general rule was subject only to a number of very limited exceptions involving the victim s own blameworthy conduct and the case law made it clear that those exceptions were limited to those expressly stipulated in Articles1.4 and 2.1. It was a basic principle of community law that derogations and exclusions were to be construed restrictively. There was no ability for a member state to create specific exceptions that were not mentioned in Article1.4 or were not otherwise justifiable on public policy grounds according to established principles of domestic law. The breach was a serious one and arose in circumstances where the UK s room for manoeuvre under the directives was closely circumscribed; it did not have a wide discretion. Its obligations under the directives and their relevant confines were quite clear and, in the absence of knowing the actual reason for the policy decision, the best that might be said was that the secretary of state decided to run the risk, which was significant, knowing of its existence. The breach was so serious, that compensation must be paid to the claimant under the Francovich principle. The jurisprudence therefore made it quite clear that Articles 1.4 and 2.1 of the Second Directive required member states to ensure that compensation was paid in all circumstances save those expressly set out as exclusions within the text of those provisions. The breach was a serious one and arose in circumstances where the UK s room for manoeuvre under the directives was closely circumscribed... The exclusion of liability under Clause 6(1)(e)(iii) was inconsistent with, and undermined, the specific exceptions permitted by Articles 1.4 and 2.1. The UK was therefore in plain breach of its community law obligations. 03

5 Damages The case of Seers v Creighton & Son Ltd [Lawtel 5/03/2015] is on its own facts but sees a court dealing with a number of issues that arise quite regularly in personal injury claims. The claimant was 43 years old. He had suffered a lower back injury whilst lifting a heavy prefabricated staircase at work. He continued in his employment for some time in a supervisory role. The claimant s back problems worsened; he had an operation but he never worked for the defendant after that. The claimant had a further operation and started employment as a minibus driver at a fraction of his original pay with the defendant. He started full-time work but had to change to part-time work. A consultant spinal surgeon reported that even though there had been a great improvement, the claimant s current state was permanent and that further treatment might be required. The long-term prognosis was that the claimant would remain disadvantaged for work. Even though he was only working part-time he would continue to have lower back pain until retirement and would require further interventions. The claimant had moderate depression and was prescribed anti-depressants. The expert psychiatric evidence was that the claimant would benefit from cognitive behaviour psychotherapy and that an increase in the level of antidepressants should be considered. The defendant admitted liability. The parties agreed a figure of 25,000 for general damages for pain and suffering and loss of amenity. The court was required to assess the remaining damages. The main dispute was over loss of earnings. An employment consultant s evidence was that the claimant could no longer sit for long periods at a time, or bend or kneel and indicated that he was limited to sedentary employment which did not involve repetitive lifting or exposure to damp. The defendant submitted that: been asked whether a package would be available if he were made redundant, a figure of 8,000 was agreed and the claimant was one of a number of employees being made redundant for economic reasons. (2) the claimant had failed to mitigate his loss. It was argued that the claimant had worked for the defendants in a responsible role despite his injury and while waiting for an operation that could possibly have significantly improved his condition and he should have been able to take on similar work instead of low-paid part-time work. The High Court judge held that the 25,000 agreed for general damages was the appropriate level for a back injury in the moderate range and a psychiatric injury at the lower end. It was inconceivable that the claimant would have voluntarily left his employment and the salary he had been receiving for an 8,000 redundancy when he had no job to go to and he had back problems. The true position was that the claimant had been told that if he did not accept the redundancy package he would be sacked. The reality was that while the claimant s position had improved he had not fully recovered and was unfit for any heavy-lifting work. He was clearly not in a position to seek work that he was suited for. If he had been able to find work for similar pay he would have done so and he would not have taken a job driving a minibus. He had taken on administrative duties in the minibus company. He was required to do more hands-on work with that company and was therefore unable to do full-time work and had reverted to part-time work. If he had not been mitigating his loss he would not have worked full time, which was beyond his capacity. The defendant had not discharged the burden of proof placed upon it. (1) The claimant had left voluntarily and could have continued in his employment. It was argued that the claimant had returned to work after his first operation and that at the time things were quiet in work terms and that the claimant had 04

6 the claimant s current work paid 7,500. The figure underestimated the claimant s capabilities His residual working capacity was 17,000 part of the calculation, to which the lower multiplier would be applied, he took a considerably higher figure for residual earning capacity than the claimant s actual earnings at the date of the hearing. The court accepted the defendant s evidence that employees salaries had not been increased from when the claimant left its employment as turnover had decreased over the last few years. Therefore, the claimant s loss of earnings to date should not take account of wage increases. As to loss of future earnings, the claimant s current work paid 7,500. A proper assessment could be made on a multiplier/ multlipicand basis. The 7,500 figure underestimated the claimant s capabilities. He was suffering from a disability but he had shown that he had pride and wanted to provide for his family and therefore, he would take all the necessary sensible steps. His residual working capacity was 17,000. It was appropriate to take that figure one year from the date of the instant hearing. On the evidence the claimant satisfied the conditions to be regarded as disabled, namely that he had an illness or a disability that had lasted for over one year, that substantially limited his ability to carry out normal day-to-day activities, and affected the type of paid work he could do. The claimant was also awarded special damages under the following heads: future care, gardening, decorating and DIY, medication and loss of congenial employment. The total award including interest was 475, Comment From the limited details we have about this case it appears that the judge was prepared to adopt the approach to calculating the future earnings claim advocated in the notes to Ogden 7. However, it can be seen that for the second 05

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