Legal Watch: Personal Injury

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1 Legal Watch: Personal Injury 15th January 2015 Issue: 047

2 Public liability The difference between a local authority s powers and its duties was examined in Foulds (Deceased) v Devon County Council [Lawtel 14/01/2015]. The claimants were the personal representatives of their son who had suffered serious head and spinal injuries in an accident, rendering him paraplegic. He was 18 at the date of the accident, but died two years later for reasons unrelated to the accident. The accident had occurred while the deceased was riding his bicycle. He had lost control of the bike and crashed into metal railings which had been placed on top of a low retaining wall. Witnesses stated that the railings had broken upon impact and the deceased had fallen down a large drop behind the wall, onto a road below. The defendant had constructed the retaining wall and railings many years earlier. It had included the wall and railings in its highway inspection regime, carrying out repairs to a different section of the railings on one occasion. The claimants argued that the defendant owed a common law duty of care to ensure that the railings were sufficiently strong to prevent a pedestrian or cyclist from falling over the retaining wall to the road below. They also submitted that an award of 100,000 should be made for the deceased s pain and suffering. The defendant denied that it owed any duty, and maintained that the railings were adequate to prevent pedestrians from falling over the retaining wall, and were not intended to be a crash barrier. Dismissing the claim, the deputy High Court judge held that the following principles were relevant: In This Issue: Public liability Causation/ex turpi causa Watch this space 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 - Experts on Trial! The Wellcome Collection, London (a) At common law a highway authority owed no duty to maintain the road or to make it safe (b) Where a highway authority positively acted and created a trap or a danger which would not otherwise have existed, it might be liable.

3 The defendant s actions had not created a trap or danger. The claimants had sought to establish a duty arising from the fact that the local authority had done an act or undertaken a responsibility. However, whilst the local authority aimed to regularly visually inspect and maintain the railings so as to provide some safety to pedestrians, at no stage were the railings considered as some form of crash barrier. There was a world of difference between a pedestrian stumbling and putting an arm on railings to steady himself, and the sort of considerable force that was likely to have been involved in the deceased s accident. He had been going too fast for the conditions ahead of him and had hit the railings with considerable force. The defendant had not done a relevant act or undertaken responsibility to prevent a fall to the road below if a cyclist crashed into the railings at speed and with force. The claimants submission amounted to a proposition that once a level of safety had been provided then a duty arose which meant that it had to be maintained. The court could not accept that submission. The defendant was not under a duty to ensure that the railings were maintained so as to provide a structure of sufficient strength to withstand the force exerted in the circumstances of the deceased s accident. his injuries. There was an element of frontloading of the award to reflect the initial shock for the trauma, the initial period of recovery and the period of coming to terms with the curtailing of so many features of a young and healthy life. However, the figure of 100,000 suggested by the claimants was too high. The court would have awarded 37,500 for pain, suffering and loss of amenity. The defendant had not done a relevant act or undertaken responsibility to prevent a fall to the road below if a cyclist crashed into the railings at speed and with force If the defendant had owed the deceased a duty of care, the court would have assessed his contributory negligence at 66%. The Judicial College Guidelines bracket for paraplegia was 161,000 to 209,000, but it anticipated a longer life expectancy than the two years that the deceased had with 02

4 Causation/ex turpi causa In AB v Chief Constable of X (2015) EWHC 13 (QB) the defendant chief constable headed the force of which the claimant had been a member. During an undercover deployment, the claimant had misused cocaine. That made it inappropriate for him to continue as an undercover officer. He suffered from a chronic adjustment order, namely distress arising in a period of adaption to a stressful life event. He took ill-health retirement. He claimed damages for injury and financial loss flowing from his retirement, alleging that the defendant had breached his duty of care by failing to provide appropriate support during his period undercover. The defendant denied any breach and alleged that any psychiatric injury was attributable to the claimant s own misconduct in abusing cocaine and his sudden fall from grace when that was discovered. Dismissing the claim the High Court judge held that there was no objective evidence of any symptoms of the claimant s disorder before he was confronted with his misconduct by more senior officers. The court rejected evidence called by the claimant that his disorder had arisen as a result of his undercover work for an extended period and that it had been compounded by lack of support and supervision. Instead, it had been caused by the sudden loss of status and identity he had experienced when confronted with his misconduct, the immediate result of which was the realisation that he would never work again as an undercover officer. That conclusion was decisive of the case. Even had the claimant proved that the defendant was in breach of duty, it would remain the case that the cause of his psychiatric injury was the fact that he had been confronted with his own misconduct and its consequences. Accordingly, the principle ex turpi causa would apply. To allow the claimant to claim for psychiatric injury caused by his misconduct would compromise the integrity of the legal system, it would award him damages for the consequences of his voluntary misuse of drugs. Further, there was no countervailing public policy which ought to enable the claim to succeed despite that. To allow the claimant to claim for psychiatric injury caused by his misconduct would compromise the integrity of the legal system... The breaches on which the claimant relied were not established. The defendant had been under a duty to take such steps as were reasonable to ensure that the claimant did not suffer psychiatric injury due to the stress he would experience as an undercover officer. Undercover officers were selected for their mental toughness and rigorously trained to deal with the physical and psychological pressures. Measures the defendant had identified were reasonable, and those measures had been properly implemented. 03

5 Watch this space Proposed recovery of medical costs for asbestos diseases (Scotland) bill In previous editions of this periodical we have reported on moves in the Welsh Assembly to enable the NHS in Wales to recover the costs of medical treatment and care provided to patients in Wales who have sustained asbestos disease (mesothelioma, pleural plaques, pleural thickening, lung cancer and other associated diseases) and have achieved a civil settlement or judgment in or out of court from an employer or other body. Now similar moves are afoot in the Scottish Parliament with the opening of a consultation on proposals to introduce similar provisions on behalf of the NHS in Scotland. This would allow recovery, from anyone responsible for paying compensation to a victim of asbestos-related disease, of certain costs incurred by the NHS in providing care and treatment to that victim. The consultation is being led by Stuart McMillan MSP and closes on 30 March Any client requiring assistance in responding to this consultation is invited to contact Stuart Mackie of Plexus Law Scotland: statutory duty would be actionable in a civil claim, without the need to prove negligence. He sees this as being in line with the protection intended to be provided to workers by the various European directives. After the consultation period Baker will lodge a final proposal and if that secures support of 18 or more MSPs from at least two parties, he will be entitled to introduce a bill unless the government itself intends similar legislation. If a proposal ultimately goes forward to the parliament there is scope for an argument that any legislation on this topic is reserved to Westminster and outwith the competence of the Scottish Parliament This proposal is intended not only to restore workers rights but also to reduce the risk of Frankovitch claims for damages against the Scottish Government. This initial consultation is open until 31 March If anyone would like assistance with preparing a response to this consultation please contact Cameron McNaught of Plexus Law Scotland: E: T: E: T: Proposals in Scotland to reintroduce strict liability in employers liability cases Labour MSP Richard Baker has taken the first step towards a Private Members Bill in the Scottish Parliament. He has opened consultation on reversing in Scotland the effect of S69 Enterprise and Regulatory Reform Act This would re-introduce to Scotland the concept that a breach of 04

6 Publications If you would like to receive any of the below, please indicating which you would like to receive. Weekly: Legal Watch: Personal Injury Monthly: Legal Watch: Property Risks & Coverage Quarterly: Legal Watch: Counter Fraud Legal Watch: Health & Safety Legal Watch: Professional Indemnity Legal Watch: Disease Contact Us For more information please contact: Geoff Owen, Learning & Development Consultant T: E: To unsubscribe from this newsletter please 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: OC Registered office: Renaissance, 12 Dingwall Road, Croydon, CR0 2NA. Parabis Law LLP is authorised and regulated by the SRA.

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