Legal Watch: Personal Injury

Transcription

1 Legal Watch: Personal Injury 7th January 2015 Issue: 046

2 Employers liability Nadeem v Shell UK Oil Products and another [Lawtel 18/12/2014] looks at the difference between a contract of service and a contract for services i.e. whether or not an individual is an employee. The claimant operated a number of petrol stations for the defendants under a retail business agreement (RBA). He had given a bank guarantee and a personal guarantee to support his obligations under the RBA. He was obliged to buy fuel and other products as the defendants directed and the proceeds were paid into a bank account from which the defendants could draw what was owed to them by direct debit. The claimant was also permitted to stock and sell other goods and retain the profits. He alleged that he had been subjected to serious ill-treatment by the defendants employees, who supervised his operations, amounting to bullying and harassment. The claim was not one of institutional ill-treatment. He claimed to be suffering from a stress-related illness and to have suffered consequential financial damage. He had received a yellow card letter from the defendants alleging serious breaches of the RBA, and then a red card letter terminating the RBA. He claimed that he was owed a duty of care by the defendants as an employee under a contract of service, or alternatively that he was a worker within S 230 Employment Rights Act Rejecting the claim, the deputy High Court judge held that the RBA contained the whole agreement between the parties and it was not a contract of service. Its terms were consistent with the claimant being an independent contractor. That was clearly the case in respect of the products he was allowed to sell himself. It would be surprising if he was an independent contractor in respect of those goods, but an employee in respect of fuel and the core goods. Likewise he was obliged to employ staff and it was unlikely that he would be both an employer and an employee. He was also liable for any losses arising from certain credit card transactions which would not be usual for an employee. Similarly he was obliged to keep financial and In This Issue: Employers liability RTA/liability Damages/causation Damages/chronic pain Civil procedure/binding agreement Civil procedure/without prejudice Legal Watch: Personal Injury Year Book 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

3 accounting records. The fact that the defendants closely supervised and controlled certain aspects such as hours of work, disciplinary matters and dealing with suppliers did not create a contract of service. There was also a genuine right of substitution which negated any contract of service. Therefore the defendants did not owe the claimant a duty as an employee not to expose him to stress. Damages for pain, suffering and loss of amenity would have been 25,000 and loss of earnings no more than 150,000. If the defendants had been liable, that would only have been for one-third of the claimant s damage as a matter of causation. The fact that the defendants closely supervised and controlled certain aspects such as hours of work, disciplinary matters and dealing with suppliers did not create a contract of service. If the claimant was a worker under the Act, he would have to show foreseeability, proximity and that imposing a duty of care was fair, just and reasonable. His psychiatric illness was not reasonably foreseeable at the time when it was said to have developed. It was caused by significant stress in his family life because his daughter had undergone heart surgery and to the extent that it was work-related it was caused by the fact that his business was in terminal decline. It could not be said that at the relevant time there were signs that would make it plain to any reasonable employer that something needed to be done. The tort of harassment could be found in the workplace but it would be unusual, since it required conduct which crossed the line from unreasonable to oppressive and which was targeted and calculated. Although the defendants employees had been concerned only about business performance they had not left the claimant completely without support. They might have paid lip service only to business coaching and mentoring, but their conduct did not amount to harassment. Accordingly the claim failed. 02

4 RTA/liability In Sobolewska (Protected Party) v Threlfall (2014) EWHC 4219 (QB) the claimant had been found on the ground of a supermarket car park one evening after leaving work. She had sustained a fracture to her ankle and a significant head injury, which caused brain damage leading to aphasia, cognitive deficits and a weakness in her arm. As a result of her head injury she could not remember what had happened, but her case was that her injuries had been caused when the defendant s car had come into contact with her in the car park, knocking her to the ground. It was not in issue that the car had been travelling very slowly at the material time. The defendant was also uncertain about what exactly had occurred, but in his witness statement he recounted that, upon driving off in the car park, he had noticed a shadow on his left hand side which suddenly disappeared. He accepted that the ankle injury had been caused by him making contact with the claimant in the car park, but he argued that the head injury had been caused other than as a result of the contact between his car and the claimant. He contended that insufficient force would have been applied to the claimant in the low velocity collision for her to have fallen and impacted with the ground with adequate force to cause an injury as severe as that which she had sustained. Finding in favour of the claimant, the High Court judge held that the evidence clearly showed that there had been contact between the car and the claimant, that she had fallen to the ground as a result, and that in the process she had injured her ankle and head, the head injury being caused by her impact with the ground. It was clear that the injuries were of a kind likely to have been caused by falling to the ground after being run into by a car. For the head injury to have been caused in some way before the accident involving the defendant s car, it had to be envisaged that the claimant had either fallen and hit her head on the ground sometime earlier in her journey to the car park, or that she had been the victim of a serious assault at some stage which had involved her head being struck. It was inconceivable that at some stage in the period of about 10 minutes from leaving work to being found on the ground of the car park, having had some interaction with the defendant s car, she had suffered a head injury which had rendered her temporarily unconscious, and had then recovered sufficiently to get to the car park only to suffer a second, unrelated period of unconsciousness. Applying common sense to the defendant s own account of what had happened, it suggested plainly that the claimant had fallen with sufficient force to cause her head injury. It was tolerably clear that an awkward fall onto a car park surface, where the hands of the person falling did not move sufficiently quickly or in the right direction to break the fall, could easily lead to the kind of injury that the claimant had sustained. Further, in manoeuvring as he had done, it had been incumbent on the defendant to check that it was safe from the point of view of pedestrians and other users of the car park. He had not done so and thus had deprived himself of the opportunity of seeing the claimant who, notwithstanding the lack of lighting in the car park, would have been visible if he had looked carefully. Accordingly, in the absence of any other credible explanation for the claimant s injuries, the picture was clear enough for the court to infer that the injuries were probably caused as a result of whatever had happened between her and the defendant s car....it had been incumbent on the defendant to check that it was safe from the point of view of pedestrians and other users of the car park. 03

5 It was likely that the claimant had approached the defendant s car from the left and that she had been close to the car before it had started to move. If so, she would not have been in the direct line of view of the car s front or rear lights. On that basis, the claimant was not at fault at all. The evidence did not suggest that she had been distracted by listening to music or focusing on her mobile telephone shortly before the accident. There was therefore no basis for a finding of contributory negligence. 04

6 Damages/causation Readers dealing with brain injury cases will be familiar with the problem of comparing the pre and post accident condition of a claimant who already had difficulties and whose socio-economic background was unsettled. Those issues arose in Tate (Protected Party) v Ryder Holdings Ltd and another (2014) EWHC 4256 (QB). The claimant had been hit by a bus when he was aged 11. He suffered a severe brain injury, a fractured pelvis and a contused lung. He had learning difficulties before the accident. After the accident, he was noticeably more aggressive and impulsive, with concentration and memory difficulties. The claimant s physical injuries healed, but he suffered cognitive and behavioural difficulties which meant that he could not live independently as an adult and required 24-hour care. He lacked awareness of danger and was easily led. He was diagnosed with a severe personality disorder. He lived in supported lodgings from age 19, but had problems with drugs and alcohol, and was taken advantage of by others. He was admitted to a transitional rehabilitation unit but began to abscond and commit criminal offences. Liability was apportioned 70/30 in the claimant s favour. He was aged 24 at the date of the instant hearing. Life expectancy was reduced by 3.75 years. The defendants accepted that the claimant s personality disorder had been caused by his brain injury, but asserted that he would have lived a life of irregular employment, compounded by substance abuse, in any event given his learning difficulties, vulnerability and poor resistance to temptation. The High Court judge held that there was no evidence that any living, adult relative of the claimant had been in paid employment. His childhood was impoverished and benefit-dependent. The assessments in respect of special educational needs prior to the accident revealed a boy who had significant learning difficulties, delayed language skills, poor concentration, weak memory and who was easily led. Although there was considerable force in those points, the defendants argument could not be accepted because: (a) It was clear from the expert evidence that by reason of the organic brain injury, the claimant lacked capacity in important respects. (It had been the defendant s case that the claimant s problems were dissocial and not organic, but the point was conceded during the trial). He lacked capacity to decide for himself where to live; how to choose what care, support and rehabilitation he needed; and whether to take alcohol and drugs. His condition could only reasonably be treated by a regime of 24-hour personalised care, which would need to be continued indefinitely. The need for such 24-hour care arose directly by reason of the organic brain injury. It would therefore be wrong in principle to discount the amount of damages in the light of an alleged risk as to how his life might have turned out if he had not suffered the injury (b) It was extraordinarily difficult to evaluate in any acceptable or convincing way how the claimant, aged only 11 at the time of the accident, would have developed, and what the nature and quality of his life might have been. He had faced formidable difficulties, but the defendants scenario was exceptionally bleak and pessimistic, and invited speculation which could be seriously unfair The annual cost of future care was 175,000, representing an average of the figures for residential accommodation and accommodation in the claimant s own home. However, it was common ground that there would be periods when the claimant was likely to lose his liberty, either by virtue of the Mental Health Act 1983, or when in custody. Accordingly, that figure was reduced to 170,000 per annum to reflect the non-negligible risk of periods in custody. There was also a substantial risk that the claimant would not comply with any care regime. The only equitable solution was to discount the amount of compensation for future care to reflect the significant risk of non-compliance. A discount of 20% was fair and proportionate in the circumstances. 05

7 The claimant s injuries fell within moderate brain damage according to the Judicial College Guidelines. An appropriate award for pain, suffering and loss of amenity was 140,000. The court adopted an average of the annual survey of hours and earnings for median earnings in the Yorkshire and Humber region for refuse occupations, shelf fillers and hospital porters, which gave a net figure of 14,437 per annum. That was discounted by 33% given the claimant s disabilities and vulnerability. A multiplier of was taken to reflect retirement at 68. The claimant would always be a protected beneficiary, and would need a professional deputy under the supervision of the Court of Protection. The court allowed 14,000 plus VAT for professional fees per annum, plus various other fees. An award of 50,000 was made for past gratuitous care at a commercial rate, which was discounted by 25%. A lump sum of 15,000 was allowed for DIY and gardening, on the basis that there was doubt as to the extent to which the claimant would have engaged in such activity but for the accident. 05

8 Damages/chronic pain Reported cases looking at the issue of chronic pain are relatively rare and so Downing v Peterborough & Stamford Hospitals NHS Foundation Trust (2014) EWHC 4216 (QB) is helpful. The case also sees a defendant incurring the penalties of failing to better a claimant s Part 36 offer. In 2006, the claimant (43 at the date of trial) underwent an operation to ameliorate his loud snoring. It made no difference to that condition and later investigations established that it could not have achieved that purpose in any event. Prior to the operation, he had been a warrant officer in the army and had very good prospects of further promotion and of being commissioned. There was also a good chance that, on his retirement from the army, he would have obtained a responsible and reasonably well-paid post in civilian life. Following the operation, he suffered from an infection which led to reactive arthritis and a disabling pain disorder. He was unable to return to his duties and was discharged on medical grounds in He was unlikely ever to work again. It was suggested by medical experts that the claimant might achieve some improvement as and when he was able to take advantage of a course of treatment, such as a pain management programme. The principal issue for the court to determine was the extent to which there was likely to be any improvement in his condition, whether following the resolution of the instant litigation or at all. The High Court judge held that there was a lack of clear and positive evidence from the medical experts. However, there was agreement that the claimant s condition had become entrenched and the judge rejected the defendant s argument that there was no ongoing biomedical mechanism and that the condition was largely psychological. In the light of what was known to have happened in the past and of the court s assessment of the evidence as to the claimant s state of mind, the proposed course of treatment was not likely, on a balance of probabilities, to bring about long-term improvement, still less a cure, so far as his mobility, pain and tendency towards depression were concerned. There was no reason to suppose that he was going to become free of his partial wheelchair dependence. Further, there was no prospect of him resuming any paid employment in the foreseeable future. He was likely to remain for the long term on a drugs regime. Accordingly, the claimant was almost certainly going to have to pursue a similar lifestyle to that he had undergone for the last few years. Future needs would have to be assessed by reference to that starting point. With reference to the JC guidelines, although recognising that there was no very close analogy between any of the listed conditions and the claimant s particular combination of symptoms, a fair figure for pain, suffering and loss of amenity was 93,000. The claim for future accommodation, expensive though it was, was well founded. It was based primarily on wheelchair dependence, although that dependence was not total. Accommodation had to be reasonably compatible with such use. The judgment against the defendant was at least as advantageous to the claimant as the proposals made in his Part 36 offer In respect of past care, it was accepted that there had to be a nil award in order to avoid double recovery. (The claimant s wife had received direct payments from the local authority for 12 hours per week at 17 per hour). There would be an ongoing need for future care and the claimant was under no obligation to continue public funding. (He would provide a Peter s undertaking in that regard). The number of hours claimed was held to be reasonable, and the total figure for future care was 343,

9 The court addressed the remaining heads of damage, some specifically and others in terms of general principle, such that the necessary calculations could be carried out. The judgment against the defendant was at least as advantageous to the claimant as the proposals made in his Part 36 offer. There was nothing to justify a departure from the presumption in favour of indemnity costs. Accordingly, costs were to be assessed from the relevant date on the indemnity basis and, further, interest on those costs was ordered under CPR 36.14(3)(c) at 10% above base rate. An additional sum of 75,000 was awarded under the provisions of CPR 36.14(d) i.e. the maximum penalty available. Comment A feature of this case was that both parties called experts in psychiatry, rheumatology and pain management but each discipline deferred to the views of the experts in the other fields. This, the judge noted, illustrated the multi-faceted nature of the claimant s symptoms. The judge also expressed his reluctance to take note of statistical evidence as to how claimants with chronic pain recover following the conclusion of litigation. He was much concerned with assessing these unique circumstances, in the light of the specific evidence before me, than with generalities, or with trying to draw analogies with other cases in respect of which I am not familiar with the full facts. 07

10 Civil procedure/binding agreement Although it is a commercial case, Bieber and others v Teachers Ltd (2014) EWHC 4205 (Ch) is of general interest when looking at when a binding agreement is reached. The claimant/applicants had invested in a series of film and television production partnerships formed by the defendant/respondent, the aim of which was to enable the investors to take advantage of tax concessions and achieve a commercial return on their investments. The schemes failed commercially and the claimants brought proceedings. The defendant was in insolvent liquidation. The claims were valued at 20m in total, with approximately 10m available to meet them. On 18 June 2014, the claimants solicitor ed the defendant s solicitor indicating the claimants willingness to compromise. On 19 June, there was a discussion between the two solicitors. The defendant s solicitor claimed that he had said that agreeing figures was the key to progressing the discussions further. The claimants solicitor s recollection was that the defendant s solicitor had said that agreeing figures was the key to settling the case. On 20 June the claimants solicitor wrote to the defendant s solicitor speaking of the need for the parties to agree an acceptable compromise and making a Part 36 offer, which was rejected. On 27 June, there was a series of s between the solicitors in which the defendant made it clear that the its offer could not survive its requirement to pay the next tranche of brief fees, due on 30 June. On 29 June the claimants solicitor accepted the defendant s solicitor s last offer. The defendant s solicitor responded Noted, with thanks. The claimants solicitor indicated that he would send round a consent order the following day. However, the parties failed to agree the terms of a formal settlement due to the defendant s solicitor s insistence on an indemnity in respect of third party claims. The claimants solicitor asserted that the claims had been settled by an agreement evidenced in the exchange of s on 29 June and were thus not dependent on the subsequent agreement of settlement terms. The effect of the proposal to settle all the claims, counterclaims and costs by a net payment to the claimants was an offer capable of acceptance Granting the claimants application, the deputy High Court judge held that the claimants solicitor s evidence was to be preferred to that of the defendant s solicitor concerning the content of the conversation on 19 June. There was nothing to suggest that the parties had anticipated that negotiations would be conducted in a two-stage manner whereby a figure was agreed before all other terms, much less that the defendant s solicitor was proceeding on that basis. Moreover, what the defendant s solicitor claimed to have said on that date was not supported by the terms of his attendance note, and the letter written by the claimants solicitor on the day after the conversation was not consistent with the tenor of the defendant s solicitor s account of the conversation. The effect of the proposal contained in the letter of 20 June was entirely clear: it was a proposal to settle all the claims, counterclaims and costs by a net payment to the claimants collectively on behalf of the defendant in a specified sum. That was an offer capable of acceptance. Had the defendant s solicitor thought that the letter was inconsistent with the conversation of 19 June, he would have said so. Moreover, his counter offer was not structured in a way that reflected a two-stage process. In fact, the acceptability of the counter offer was entirely unqualified, which was inconsistent with the offer being made subject to the agreement of other terms and conditions and therefore 08

11 with the kind of reservation the defendant s solicitor thought he had articulated on 19 June. The defendant had made no previous attempt to reserve its position in relation to third party claims. On an objective view, considering the whole course of the parties negotiations, the parties had reached a concluded agreement even though further documentation was anticipated. The exchanges on 29 June were objectively consistent only with the parties intending to reach a binding agreement as to settlement, and to do so under the time-related pressure of a further tranche of brief fees becoming payable. Had the defendant s solicitor s understanding been that the negotiation was a two-stage process, his reaction would not have been Noted, with thanks. Instead, he would have referred to the remaining issues to be dealt with before an agreement could be concluded. The parties intention to reach a final and binding agreement on 29 June was not vitiated by the claimant s solicitor s reference to the consent order because there was no indication by either party that there were issues of substance remaining to be agreed after the exchange of s had been completed. The reference to a consent order implied that there was nothing of substance left to agree other than the form of words necessary to carry the agreement into effect. Preparedness to negotiate the terms of a settlement agreement did not necessarily lead to the conclusion that the parties had not earlier entered into a binding agreement to settle the dispute. 09

12 Civil procedure/ without prejudice The commercial case of Vestergaard Frandsen A/S and others v Bestnet Europe Ltd and others (2014) EWHC 4047 (Ch) looks at the status of a without prejudice communication. The defendants had been held liable for misusing the claimants confidential information in the development of mosquito nets. At an inquiry as to damages, the claimants were awarded considerably less than had been claimed. The defendants had made two Part 36 offers, the second of which was not far below the final amount awarded. The claimants had not responded to either offer, and had made no counter-offer. The costs of the inquiry remained to be determined. At the costs hearing the defendants wished to criticise the claimants conduct during the inquiry and served a witness statement referring to an exchange of without prejudice solicitor s letters in which the parties had attempted to resolve the costs of the liability trial. The claimants applied to strike out those parts of the witness statement on the grounds that the letters were protected by without prejudice privilege. Allowing the claimants application, the deputy High Court judge held that there was a strong public policy justification for denying the ability to rely on a without prejudice communication at any stage in the proceedings, including costs assessment. Once a party had made a without prejudice offer, the recipient was free to make a without prejudice response. The response might be to make a counter-offer, ask for more information, reject the offer or ignore it. All those responses were protected by the privilege. It was plain that the rejection of a without prejudice offer, without making a counter-offer, was not admissible in evidence. No such rejection could be given in evidence in isolation, without providing the initial offer as well. It logically followed that it could never be open to one party, who had made a genuinely without prejudice offer, to disclosure the response to that offer without the consent of the offeree....there was a strong public policy justification for denying the ability to rely on a without prejudice communication at any stage in the proceedings, including costs assessment. There had been no waiver of privilege. The claimants claim for indemnity costs was based on an allegation that the defendant s conduct in the litigation was worthy of criticism. That could not be said to be inconsistent with the claimants continuing to assert privilege in without prejudice communications. A statement, set out in a skeleton argument, that the claimants conduct was not to be criticised was counsel s summary of the finding that he would like the court to make based on the evidence that it had heard and seen. Since the court had heard and seen no evidence about the without prejudice negotiations, the statement could not be taken as making any assertion about the claimants conduct. It was therefore impossible to see how it could have implicitly waived the privilege attaching to the negotiations. 10

13 Legal Watch: Personal Injury Year Book A compendium of the key cases and articles published in Legal Watch: Personal Injury during 2014 will be sent out to all subscribers shortly. 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: gro@greenwoods-solicitors.com To unsubscribe from this newsletter please crm@greenwoods-solicitors.com 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: 8 Bedford Park, Croydon, Surrey CR0 2AP. Parabis Law LLP is authorised and regulated by the SRA.