Ecclesiastical Insurance Claims Review and Case Law Update Spring Edition. Issue 3

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1 Ecclesiastical Insurance Claims Review and Case Law Update Spring Edition Issue 3

2 Introduction The implementation of the Jackson Reforms heralds the most wide-ranging changes there have ever been in the way in which personal injury claims are dealt with. Whilst the reforms present a number of challenging issues both to the insurance sector and legal profession alike, the underlying benefits are welcomed. Whilst Ecclesiastical was one of the few insurers prepared to fight cases on principle under the old regime, the levelling of the legal costs playing field will significantly assist them going forward by allowing them to defend cases without facing the risk of substantial and disproportionately high adverse costs orders in the event that those defences do not succeed. Jason Burt: Partner, Plexus Law

3 Charities: Considered a Soft Touch? It is a sad reality that even charities are not exempt from receiving claims of a dubious nature. It is undoubtedly the case that some claimants/claimant s solicitors perceive charities to be something of a soft touch when it comes to the defence of personal injury claims. Our teams of specialist claims handlers are alive to this and fight hard to ensure that our charity policyholders are afforded the very highest level of protection from unmeritorious claims. David Bonehill: Claims and Risk Services Director, Ecclesiastical Insurance Group

4 James v Ipswich Library and Reading Rooms The claimant was a member of the insured s library and reading rooms. It was alleged that whilst retrieving her coat from an internal cloakroom, the claimant tripped over a walking frame which had apparently been left by another member of the public. She sustained a nasty fracture to her right leg. claim has come to a very satisfactory end. On behalf of the trustees of the Ipswich Institute, I would like to record our grateful thanks for the principled stand our insurers have taken on this claim. On close examination, a number of issues came to light and as such, the claimant was put to proof as to her version of events. In addition, an extensive amount of evidence was produced by the defence team in support of the insured s case, evidence which ultimately persuaded the claimant to discontinue the claim and pay the defence s costs. The insured was actively involved in the defence throughout and was delighted with the outcome the

5 Breyley v Bidwell Brook Foundation The claimant was assisting the insured to take a group of young people with varying degrees of challenging behaviour on a visit to a local zoo. The claimant alleged that the young person she was assisting suddenly collapsed to the ground and grabbed the claimant pulling her down as well, ultimately causing an injury to her back. The claimant s case was that the insured knew the young person in question had a propensity to collapse in this way and that they had failed to properly instruct her in how to deal with the situation. The insured s position was that the young person had never previously acted like this and as a result, the incident was entirely unforeseeable. on the basis that the insured had undertaken appropriate reviews of the young person s care notes and had put in place an effective and suitable care regime and risk assessment. The case was successfully defended to trial in Torquay County Court, with the court ordering the claimant to pay the defence s costs. Pleased with the outcome the insured wrote thank you again for your support and direction in navigating the case of K B, so pleased that our insurers saw fit to defend this case with the backing of a robust and superb team a huge hurrah is due to our insurers. A robust denial was put forward

6 Solecki v Sue Ryder Care The claimant, an elderly lady who was a charity volunteer, sustained injury whilst attending one of the insured s high street shops. She allegedly tripped over a clothes rail which was obstructing a walkway, causing her to fall and sustain a severe fracture to her left leg. forced to discontinue the claim with an obligation to pay the costs of the defence. Initial investigations resulted in concerns regarding the accuracy of the claimant s accident description with evidence being discovered to suggest that the claimant s fall may have been caused by her tripping over her own shoe laces. The latter explanation was contained within the claimant s medical records which were obtained and examined by the defence team. Eventually, the weight of evidence put forward by the defence team was such that the claimant was

7 Social Activities Involving Risk On occasions, the decision to defend a particular claim is more about the bigger picture than the impact of the claim on an individual insured. Certain cases have the potential to ultimately influence the activities of our customers operating across the entire range of the niche markets we insure and they are never more prevalent than with claims involving activities which carry inherent risks to those participating in them. These issues are always considered by our specialist handling teams when defence strategies are formulated and as the following case reviews demonstrate, the current compensation culture need not force insureds to shy away from undertaking such activities, providing of course they are properly organised, supervised and risk assessed. Chris Lynwood: Ecclesiastical Technical Claims Manager

8 Jennifer Wilkin-Shaw v (1) Christopher Fuller (2) Kingsley School Bideford Enterprises Ltd A pupil of the insured s school tragically drowned as she attempted to cross a flooded brook whilst training to participate in the annual Ten Tors Expedition as part of her school team. Following a lengthy trial at the High Court in London the case was dismissed, a decision that was subsequently upheld by the Court of Appeal. It was alleged by the claimant that the school had failed in its obligation to ensure that those supervising the training had appropriate experience and were competent to organise and supervise it. In addition, it was said that the school should have removed the team from the moor prior to the accident because of inclement weather at the time and failed to ensure that a checkpoint was manned when the team arrived at the allotted time.

9 Fletcher v Outward Bound Trust The claimant sustained an injury to his wrist whilst participating in a gorge scramble organised by the insured as part of a team building exercise requested by the claimant s employers. One of the challenges was to enter a water-filled gorge and swim into a small cave behind a waterfall. In so doing, the claimant struck his hand against the side of the gorge resulting in injury. Although the injury was initially thought to be minor, the claimant went on to develop complex regional pain syndrome resulting in significant ongoing disability. certainly discourage employers from providing activities for their employees which are clearly there for their overall benefit and would upset the balance of risk. The insured was delighted to be vindicated and said can I just reiterate my thanks for your considerable support and advice throughout this case. Our eventual success is due in no small part to your efforts and those of your colleagues at Plexus Law. The case was dismissed following a four-day trial with the judge accepting that the insured had taken all steps necessary to reduce the inherent risks of the activity to a reasonable level, helpfully stating that to impose a greater obligation would almost

10 Bell v St Saviour s and St Olave s School The claimant, a pupil at the defendant s school, was participating in a hockey match as part of a sports lesson. He was struck in the face by a hockey stick being wielded by a fellow pupil, sustaining serious fractures to five teeth. The case centred upon the insured s alleged failure to compel pupils to wear mouth guards. Their policy only strongly recommending the use of such protective equipment. The claimant s case was that given the potential risk of injury was so high, the insured should have made the wearing of mouth guards mandatory. The case was dismissed with the claimant being ordered to pay the costs of the defence. insured was very pleased with the outcome Congratulations! I have read the judgment very carefully and feel that HHJ Redgrave has produced an entirely sound and wellbalanced summary of the arguments. Clearly her judgment has been very largely based around a defence which was well organised and highly professionally prepared may I thank you on behalf of the Governing Body and once again congratulate you on your excellent management of the case. Given the potential consequences of an adverse finding of liability, the

11 Employee Violence: Vicarious Responsibility Claims emanating from violent assaults within the workplace are becoming more common. When such assaults occur, they often create a high profile, emotionally charged atmosphere within the organisation in question which can impact upon the way in which any subsequent claim is managed. Our teams of specialist claims handlers have extensive experience of dealing with the intricate and complex legal issues that arise in such cases and ensure that the same are dealt with as efficiently and sensitively as possible Jane Abbott: Senior Claims Handler

12 Weddall v Barchester Healthcare Ltd The insured operated a home where people with severe mental health issues resided and were supported with their daily living needs. On the day in question, one of the claimant s colleagues called in sick. In line with his instructions, the claimant telephoned another colleague, who was at home at the time, and asked if he would volunteer to cover the vacant shift. The colleague had had a bad day at home and by the time the call was made, was very drunk. He did not react well to the call and believed that the claimant mocked his drunken state. Soon after the call, the colleague rode to the insured s premises on his bicycle, saw the claimant in the front garden and made, in the words of the judge an utterly unprovoked attack, very violent. The assault was so severe that the aggressor was eventually convicted in the criminal courts and received a 15-month term of imprisonment. The claim at first instance was successfully defended at trial, heard at the Norwich County Court, with the claimant being ordered to pay the costs of the defence. The claimant appealed, contending that an employer should be responsible for any response of an employee who is requested, in the course of his/her employment, to undertake work on the employer s behalf. The Court of Appeal disagreed and dismissed the appeal. In doing so, the Court of Appeal issued formal guidance to employers regarding the extent of their vicarious liability for employees, concluding that the trial judge was right in stating that an employer is not to be held vicariously liable for every act that one person might commit against another occasioned by/emanating from their employment but otherwise sufficiently specifically connected with it.

13 Preserving the Integrity and Aesthetics of Heritage Properties Ecclesiastical are acutely aware of the importance of preserving the originality of historic/heritage properties and the problems this can, on occasion, create for those owners who permit visitors access to their premises. In 2003, Ecclesiastical and Plexus Law defended the interests of a parochial church council (PCC) of a medieval church in a claim brought by a visitor who allegedly stumbled on an uneven pathway. Accepting the defence we put forward on behalf of the PCC, the judge stated it would be highly undesirable if we required the appearance of our medieval country church to be infected by warning notices or surrounded by flat grating systems which was suggested to be the appropriate solution in this case. Such an attitude would offend anyone s sense of reasonableness and proportionality and taking into account the costs of such remedial works and the damage to the aesthetic features of the building, thus creating a very strong precedent which has helped us defend many other policyholders over the years. The following case demonstrates that Ecclesiastical s appetite for defending the owners of heritage properties has not diminished in any way. Sarah Cox: Ecclesiastical Technical Claims Consultant, Property Investor Claims

14 Jones v Hampton Court Castle and Gardens In early September 2010, whilst attending a wedding reception at the 15th century castle and gardens, a member of the wedding party failed to notice the presence of one of the castle s hahas and stepped into the same, falling a distance of four feet and fracturing his leg in the process. The claimant alleged that the haha was inherently dangerous and even though its presence was highlighted by a marker rope, insisted that it should either have been fenced off, or had its presence drawn to the public s attention by warning signs. In addition, it was alleged that the general lighting in the area was inadequate and should have been improved. A robust defence of the claim was maintained on the basis that the haha was an intrinsic feature of the castle and to have it removed or altered in any way would have a significant impact on the aesthetics of the property. An argument which also held true in relation to the installation of fixed barriers or high visibility warning signs. Accepting the defendant s arguments, the court dismissed the claim, the trial judge saying I have also considered the issue and the fact that the defendant s premises is a Grade 1 listed building. It is clearly a historic building and I must take that into account when considering to what extent signage and warning signs should be placed around the premises. The insured was delighted with the response, writing Thank you very much for you and your team s efforts on the court case. We are all so pleased to hear the result. I hope more of these sorts of cases are publicised to help stem the flow of no win no fee claims.

15 Putting the Issue of Work Equipment to Bed It is important that even claims of very limited value are properly considered as they can, on occasion, have the potential to create adverse precedents that can significantly impact upon organisations unconnected with the claim itself. The following two cases provide excellent examples of where minor claims include novel allegations which, if upheld by the court, could have significantly expanded the strict liability provisions of the Work Equipment Regulations, something which could have affected all employers across the country. Carol O Donnell: Ecclesiastical Technical Claims Consultant

16 Sylvester v Leonard Cheshire Trust The claimant sustained injury to her fingers whilst attempting to place a fitted bed sheet on to a bed within the insured s care facility. The claimant alleged that the bed sheet was defective work equipment because it had shrunk in the wash and that as a result, the strict liability provisions of the Work Equipment Regulations should apply. Although a very modest claim in terms of value, the assertion that the bed sheet should be considered an item of work equipment significantly increased the importance of the matter, not only for the insured but also for any business that required members of staff to make up beds etc. A robust defence was maintained throughout the claim, despite facing several logistical difficulties arising out of the fact that a number of potentially relevant witnesses had left the insured s employment. Ultimately, the claimant was forced to discontinue the claim on a no order as to costs basis, the costs concession from the defence point of view being granted to reflect the litigation risks emanating from the lack of witness evidence.

17 Spencer v Barchester Healthcare The claimant was employed by the insured as a care assistant. She volunteered to take part in an internal sports day for the benefit of the residents. The sports day consisted of a number of fun activities including a sack race (where pillow cases were used as the sacks). Whilst participating the claimant stumbled and fell, sustaining very minor soft tissue injury to her knee. It was the claimant s contention that the pillow case was work equipment and should be considered defective on the basis it was not suitable/ inappropriate to be used on account of the fact that it was too stiff. involved the issue of the social benefit of activities carrying an inherent risk. The implications of an adverse finding on liability would have impacted on a number of niche markets insured by Ecclesiastical and as such, a bespoke defence strategy was invoked from the outset. As a result of the evidence collated, the claimant was ultimately required to discontinue the case with an obligation to pay the defence s costs. This was an interesting case not only because it sought to expand the boundaries of the Work Equipment Regulations, but also because it

18 Conclusion As the above selection of cases demonstrates, Ecclesiastical has the expertise to defend the interests of our policyholders if the circumstances of a claim demand such a course of action. However, we also embrace our responsibility to do the right thing. Claims which should be settled are settled as expeditiously, ethically and fairly as possible. More than that, we recognise our duty to protect the interests of our customers across the entire claims arena and on occasion this necessitates a more pragmatic approach to the resolution of disputes so as to avoid the creation of adverse precedents that could impact our niche markets. Our teams of specialist claims handlers take such considerations into account when formulating the best way in which to proceed with any claim. David Bonehill Claims and Risk Services Director, Ecclesiastical Insurance Group. Plexus Law fee earners acting on Ecclesiastical s behalf in relation to the cases featured in this review include: Rebekah Walker, Jacqui Kendall, Alan Rennie, Nick Yates, Ruth Sheret, Gemma Knight, Deborah Grant and Jason Burt.

19 T: Plexus Law is a trading name of Parabis Law LLP, a Limited Liability Partnership. Incorporated in England & Wales. Reg No: OC Registered office: 8 Bedford Park, Croydon, Surrey CR0 2AP Parabis Law LLP is authorised and regulated by the SRA.

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