Legislation should be. Government proposals. Clinical negligence. Personal Injury Newsletter. Vol 4 Issue 3. XXXXX XXXXX XXXXXXXXXXX March 2012

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1 Butterworths Personal Injury Newsletter XXXXX XXXXX XXXXXXXXXXX March 2012 Vol 4 Issue 3 NEWS UPDATE FOR PERSONAL INJURY PROFESSIONALS APIL speaks out on crime and candour Government proposals to restrict payments to crime victims with less severe injuries are a gross injustice, the Association of Personal Injury Lawyers (APIL) has warned. APIL president David Bott said the proposals risk cutting genuine claimants off from the compensation they need and deserve. Crime victims with less serious but still significant injuries must be allowed to claim full and fair redress like anyone else. He said that falling victim to a crime can be a harrowing experience, regardless of the level of injury. It s important, in any caring and responsible society, that injured victims are able to claim the redress they need to help put their shattered lives back together, he added. Meanwhile, APIL has called for all patients injured in medical blunders to receive an apology from the person who harmed them. Speaking out on the Department of Health s consultation on plans to introduce a duty of candour, APIL said the proposals don t go far enough as they exclude victims of minor injury and the proposed duty doesn t apply to GPs and other medical professionals in primary and private care. Bott said: In many instances, injured patients want nothing more than an apology and the peace of mind that other people won t be harmed in the future. So the proposals to exclude victims of minor injury, from receiving what should be a common courtesy, seem completely unfair. MPs call for new laws to curb rising whiplash claims Legislation should be introduced to stem the number of whiplash claims if the Jackson reforms fail to reduce them, according to MPs on the transport select committee. In its second report on the cost of car insurance, the committee noted that the rise in personal injury claims most of which are for whiplash injuries is the main reason for an increase in premiums. It said: It is difficult to diagnose whiplash objectively and this has deterred insurers from defending claims in court. We recommend the bar to receiving compensation in whiplash cases should be raised. The MPs acknowledged that the Jackson reforms, could reduce the money in the system and encourage insurers to defend claims more vigorously but said that if the number of whiplash claims does not fall as a result, there would be a strong case to consider primary legislation to require objective evidence of a whiplash injury, or of the injury having a significant effect on the claimant s life, before compensation was paid. An Association of Personal Injury Lawyers spokesperson said: Any measures which risk blocking people from making valid claims will leave injury victims and taxpayers effectively subsidising the Bill for clinical negligence claims shoots up Clinical negligence claims could cost the government nearly 16bn acccording to a new report. The figure equivalent to one seventh of the health service s annual budget has increased by more than 10% in a year, the Whole of Government Accounts (WGA) report for reveals. The report shows that outstanding negligence claims make up 15% of the government s planned future expenses, which has prompted the Commons public accounts committee to attack the Treasury s poor understanding of its potential liabilities. Claims for clinical negligence outstanding at 31 March 2010 could cost 15.7bn, the report warns. The Treasury did not know that clinical claims recorded by the NHS Litigation Authority had increased by some 31% in 2010/11 or what plans were in place to reduce liabilities for clinical negligence. Last year, more than 8,500 clinical negligence claims were received by the NHS, an increase of more than 30% on 2009/10. The clinical negligence bill is an estimate based on the number of claims the NHS believes it will not be able to defend, the severity of the harm and damages levels. A Department of Health spokesman said: The government s proposals for reforming the civil litigation system will support the NHS in dealing with costly litigation cases. We want to strike the right balance between access to compensation claims and ensuring costs are proportionate, sustainable and affordable. insurance companies who have already accepted our premiums. The committee called for increased transparency on referral fees and for updates on government plans to allow insurance firms real-time access to the DVLA database. Meanwhile, the Law Society has criticised Prime Minister, David Cameron, for holding a summit with insurers on the rising cost of car insurance without inviting lawyers. Society chief executive Des Hudson said: There are many options to address...which need proper consideration. Government should not be limiting itself to tea and cakes with one partisan set of stakeholders the insurers. Contents Changing experts 2 Asbestos: the lethal legacy 3 In practice 4 Case digests 7 Legislation update 8 Editor: Lucy Trevelyan Designer & Typesetter: Heather Pearton Customer Services: Publishing Director: Simon Collin Published by LexisNexis, Halsbury House, 35 Chancery Lane, London WC2A 1EL All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission in writing of the publishers. Printed by Headley Brothers Ltd. ISSN: X Personal Injury Newsletter 1

2 Changing experts Changing experts A recent Court of Appeal judgment throws the spotlight on the situation where a party wishes to change experts after a case has started. Caroline Hallissey reports In the case of Edwards-Tubb v JD Wetherspoon Plc [2011] EWCA Civ 136 it was held that: a. the courts had a discretionary power under CPR 35.4 to impose a condition of disclosure of an earlier expert report which was available where a change of expert occurred before the issue of proceedings as well as when it occurred after the issue of proceedings; b. the power should usually be exercised where the change came after the parties had embarked upon the preaction protocol and thus engaged with each other in the process of the claim. To many claimant lawyers this judgment is a worrying erosion of privilege. Background The claimant had suffered an accident at work in 2005 and sustained an orthopaedic injury. Liability was admitted. Under the pre-action protocol for personal injury claims (para 3.15) the claimant advised the defendant of the names of three potential orthopaedic experts. The defendant did not object to any of the experts. The claimant s solicitors instructed Mr Jackson, one of the experts they had nominated. The instruction was not on a joint basis. The expert duly examined the claimant and prepared a report. That report was not disclosed. Shortly before expiry of the limitation period proceedings were issued and particulars of claim were served. The particulars were served with a medical report prepared by Mr Khan, an orthopaedic surgeon other than the three proposed by the claimant. The medical report moreover referred to a prior medico legal examination (by Mr Jackson). The defendants issued an application for the disclosure of the earlier report from Mr Jackson. They argued that disclosure of this report ought to be made a condition of the permission the claimant needed under CPR 35.4 to rely on the evidence of Mr Khan. The application was initially successful but the order granted was overturned on appeal heard by Judge Denyer QC at Bristol County Court on the basis that the order had impermissibly overridden the claimant s privilege in the first report. Court of Appeal Before Lord Neuberger MR, Lord Justice Richards and Lord Justice Hughes, the claimant/respondent contended that while a party might require permission to change from one court-permitted expert to another in the same discipline that requirement was limited to a change of expert which took place after the issue of proceedings. The defendant/ appellant contended that there was no sensible distinction between a change of expert before issue of proceedings and change of expert afterwards as in both cases the court had control under CPR 35.4 of whether and on what terms to grant leave for the expert of choice to be called and that in both cases it should exercise that power in such a way as to discourage expert shopping and to encourage openness. The Court of Appeal considered a line of authorities where courts had made a conditional order when a party had elected within proceedings to change expert including Beck v Ministry of Defence [2003] EWCA Civ 1043, [2005] 1 WLR 2206 and Vasiliou v Hajigeorgiou [2005] EWCA Civ 236, [2005] 1 WLR The appeal was allowed and the original order of the district judge was reinstated. The Court of Appeal held that it was clear from CPR 35.2 that Pt 35 was concerned with experts who were instructed to report for the purpose of proceedings. That the court said, created a distinction between an expert instructed to advise a party privately and one who was instructed to produce a report for the purpose of proceedings. Hughes LJ held that there was no difference of principle between a change of expert instructed for the purpose of proceedings pre-issue and a change of expert only instructed, for the same purpose, post-issue. Hughes LJ went on to state that whatever the reason for subsequent disenchantment with an expert first instructed might be, once a party had embarked on the pre-action protocol procedure of co-operation in the selection of experts, there was no justification for not disclosing a report obtained from an expert who had been put forward by that party as suitable for the case, had been accepted by the other party as suitable, and had reported. It was appropriate for the court to exercise the control afforded by CPR 35.4 to maximise the information available to the court and to discourage expert shopping. Accordingly, the same discretionary power to impose a condition of disclosure of an earlier expert report was available where the change of expert occurred pre-issue as when it occurred post-issue but the power should usually be exercised where the change came after the parties had embarked upon the protocol and thus engaged with each other in the process of the claim. Hughes LJ held that the court s power to order disclosure of a previous medical report did not extend to experts instructed in the early stages of investigation of a case where the merits were still being considered: Where a party elected to take advice pre-protocol, at his own expense, I did not think the same justification exists for hedging his privilege, at least in the absence of some unusual factor. An expert consulted at that time and not instructed to write a report for the court was in a different position, and outside the scope of CPR 35.2 (see paras 26 27, of judgment). Effects on practice It could be argued that at the root of the judgment was a determination to prevent parties being able to change experts in cases where their support for the case had changed. Hughes LJ expressly approved 2 Personal Injury Newsletter

3 Changing experts/asbestos: the lethal legacy the comments of Dyson LJ in the case of Vasilou that expert shopping is undesirable and, whenever possible, the court will use its powers to prevent it. Experts, of course, can be dropped from a case because their reports are factually inaccurate and the expert refuses to make the necessary corrections, the expert is not available for conferences or sometimes because the expert is unsympathetic to the client. The Court of Appeal s decision in this case leaves the way open for defendants to insist under CPR that the abandoned report should be used as evidence at trial raising the spectre of the claimant needing to call the expert and revisit the reasons for their dissatisfaction with the evidence in the first place. LJ Hughes acknowledged this as a possibility saying: I agree that this may occasionally generate a further need for case management, but it seems to me a necessary precaution in some cases if the party to whom the report is disclosed is not to be presented with a potentially unfair tactical advantage. What is not clear is what would happen with regard to the costs of the Asbestos: the lethal legacy Georgia Whiting reviews the law relating to mesothelioma claims and examines the impact of recent Supreme Court decisions While the dangers of asbestos use have been known since the 1960s, the use of asbestos in some forms was not banned in the UK until 1999, and consequently, the number of asbestos-related fatalities continues to rise. According to the Health and Safety Executive, the worst case predictions are that annual deaths for males in Britain will increase to a peak of 2100 by Mesothelioma is a particularly aggressive disease caused by asbestos fibres and is currently resistant to many forms of treatment, especially if diagnosed at a late stage. It is without doubt the most destructive of all the conditions caused by asbestos. It occurs when asbestos fibres are inhaled and reach the chest cavity through penetrating the mesothelial cells of the pleura (lining of the lungs). Once lodged, the fibres cause a series of cancerous changes in the surrounding cells. Fairchild There have been several landmark cases concerning causation (proving that it was the defendant who caused the claimant loss) in asbestos-related cases, in particular in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, where it was observed that there was no way of identifying, even on the balance of probabilities, the source of the fibre or fibres which initiated the genetic process which culminated in the malignant tumour. Indeed, Lord Bingham dubbed it the rock of uncertainty. Mr Fairchild had worked as a subcontractor for various employers, all of whom had negligently exposed him to asbestos. He subsequently died of mesothelioma and his wife brought a claim against his employers for the tortious exposure. The problem in bringing a mesothelioma-related action is that inhalation of one asbestos fibre can potentially cause the disease at any time, and at present it is impossible to determine when the fatal inhalation occurred. In Fairchild this essentially meant that it was impossible to prove that any single employer, where there were several over a period of time, was responsible for causing the disease. Bearing in mind that the basic test for causation is the but for test, (ie, but for the defendant s negligent act, would the harm have occurred? ), given the medical uncertainty in this case and the standard of proof being set as the balance of probabilities, this left the claimant in severe difficulties. As a result of this undesirable situation, the House of Lords created the abandoned expert report and their attendance at trial. Conclusion In conclusion then this case is likely to lead to greater front-loading of claims with extra care needing to be taken to ensure that the expert evidence is sound before the pre-action protocol is complied with contrary to the protocol s purpose to promote the early resolution of claims. Caroline Hallissey Barrister Outer Temple Chambers Fairchild d exception to prove causation in asbestos-related cases. This exception to the but for rule of causation meant that all that needed to be shown was that a sefendant s exposure had materially increased the claimant s risk of contracting the disease. Barker v Corus Following the case of Barker v Corus (UK) PLC and associated cases [2006] UKHL 20, the House of Lords went further and decided that where there were multiple defendants found liable for exposure, liability should be apportioned between them. However, to avoid any potential injustice to the claimant, s 3 of the Compensation Act 2006 (CA 2006) was passed to ensure that a claimant could still recover damages in full from one defendant if necessary, irrespective of exposure elsewhere. Sienkiewicz; Willmore The recent combined appeals to the Supreme Court in Greif (UK) Ltd v Karen Sienkiewicz and Knowsley Metropolitan Borough Council v Willmore [2011] UKSC 10 have once again tested the applicability of the Fairchild exception and the minimum threshold beneath which a claim cannot succeed. In both cases the defendant was the sole known asbestos exposer and the level of exposure was low. The applicability of the Fairchild principle in single exposure cases was a question posed in Sienkiewicz. The Supreme Court held that in cases where there was only one defendant, the Fairchild exception still applied. The definition of what constituted a material increase in risk was determined in Willmore as any increase that was more than minimal. However, Personal Injury Newsletter 3

4 Asbestos: the lethal legacy/ In practice this would remain a question for the judge on the facts of each particular case. The Supreme Court was therefore hesitant to alter any finding of fact by the lower court, and the trial judge was not criticised for finding exposure on a slender and speculative basis. What do the decisions in the Sienkiewicz and Willmore appeals mean for future mesothelioma claims? Claims that in the past have been seen Gathering witness evidence as too low to be actionable could now meet the threshold. As the number of mesothelioma cases continues to grow, the decision in Sienkiewicz looks set to be problematic to employers, and in particular public bodies which will most likely face the brunt of future claims since the enactment of s 3, CA Critics have observed that the position we are left with is that a defendant who may not have caused the claimant s Karen O Sullivan outlines how a solicitor s relationship with witnesses might change under the new SRA code of conduct Code of conduct requirements A solicitor s relationship with witnesses has to be handled carefully. With effect from 6 October 2011, various provisions set out in the new Solicitors Regulation Authority (SRA) code of conduct (the 2011 code) contained in the new SRA handbook aim to assist solicitors with this task. It is important to be aware of these new rules as they mark a regime change moving away from tick-box rules based compliance under the old rules to outcomes-focused regulation. Under the new regime solicitors are now required to meet a number of mandatory outcomes (outcomes). The 2011 code identifies indicative behaviours (IBs) which will tend to suggest whether or not the mandatory outcomes are being achieved. Chapter 5 of the first section of the 2011 code governs solicitors relations with the court. The following mandatory outcomes are relevant in relation to witness evidence: O(5.1) you do not attempt to deceive or knowingly or recklessly mislead the court; O(5.2) you are not complicit in another person deceiving or misleading the court; O(5.6) you comply with your duties to the court; O(5.7) you ensure that evidence relating to sensitive issues is not misused; O(5.8) you do not make or offer to make payments to witnesses dependent upon their evidence or the outcome of the case. Indicative behaviours relevant to the above outcomes include: IB(5.3) ensuring child witness evidence is kept securely and not released to clients or third parties; IB(5.6) not appearing as an advocate, or acting in litigation, if it is clear that you, or anyone within your firm, will be called as a witness in the matter unless you are satisfied that this will not prejudice your independence as an advocate, or litigator, or the interests of your clients or the interests of justice. You need to be aware that if you act in any of the following way(s) this may be taken to show that you have not achieved these outcomes and therefore not complied with the ten overarching principles on which the 2011 code is based: IB(5.7) constructing facts supporting your client s case or drafting any documents relating to any proceedings containing: any contention which you do not consider to be properly arguable; any allegation of fraud, unless you are instructed to do so and disease is none-the-less bound by its consequences. However, until a time when the disease is better understood, the Fairchild exception seems to be the only way to ensure that claimants can receive compensation in these tragic cases. Georgia Whiting Solicitor Bracewell Law you have material which you reasonably believe shows, on the face of it, a case of fraud. IB(5.9) calling a witness whose evidence you know is untrue; IB(5.10) attempting to influence a witness, when taking a statement from that witness, with regard to the contents of their statement; IB(5.11) tampering with evidence or seeking to persuade a witness to change their evidence. Thus the 2011 code provides some clear examples of the kind of conduct that is considered to fall below the standards required of solicitors when preparing witness statements. The 2011 code is not retrospective. Therefore in a situation pre 6 October 2011, reference may be required to the old 2007 code (Solicitors Code of Conduct 2007: r 11 Litigation and advocacy). Identifying potential witnesses Begin thinking about potential witnesses as soon as possible, especially if there is likely to be a large number of them. Build in time to locate them, interview them and review any relevant documents they hold which may need to be included in the list of documents. It is often obvious early on who has first-hand knowledge of facts relevant to a case. New witnesses may emerge after disclosure. Ask your client if the relationship with any potential witness needs to be managed carefully (eg a former employee who left on bad terms). You may need to advertise for witnesses (such as to an accident) or instruct a private investigator to locate a witness. The 2007 code specifically provided that there is no property in a witness (para 19 of the guidance to r 11 of the 2007 code). Although 4 Personal Injury Newsletter

5 In practice the 2011 code does not specifically replicate this provision, it is taken to remain good practice until further notice. In all cases, consider whether each potential witness would appear credible under cross-examination because everyone who makes a witness statement may be required to give evidence at trial. Expert giving factual evidence It may be that your expert is able to give factual evidence in addition to expert evidence. This is likely to happen when the expert has inspected the subject matter of the dispute at a stage when he or she can give useful evidence as to its condition. The expert should separate those facts out from his or her report and put them in a witness statement, to be exchanged along with the other factual statements (see Admiralty and Commercial Courts Guide, para H2.8). Factual witness giving expert evidence Likewise, factual witnesses may give statements of opinion where it is related to the facts within their own knowledge (Multiplex Constructions v Cleveland Bridge UK [2008] All ER (D) 04 (Oct)). The use of specially commissioned survey results in evidence A party may sometimes commission a survey to support issues in its case. The results of such surveys may sometimes lead to the submission of witness evidence from individuals who respond to the survey. The practice has arisen that permission of the court is sought in respect of the commissioning of such surveys before such evidence is adduced. This is particularly so given that surveys tend to produce evidence obtained from the artificial application to members of the public of stimuli directed at provoking reactions and responses... (Rimer J in UK Channel Management Ltd v E! Entertainment Television In [2008] FST 120). The rationale for seeking advance permission, from the claimant s perspective, is to ensure the recoverability of the costs of commissioning the survey should the claim succeed at trial. The court will approach the question in some detail. In A & E Television v Discovery Communications [2011] EWHC 1038 (Ch), Mann J set out what he considered the court was doing when faced with such a request. In effect the court was considering the question from a case management perspective (ie, as to whether or not the survey evidence was independent, untainted, admissible and probative so as to ensure that there would be no wasting of parties costs and court time in the commissioning of hopeless surveys). As part of this process the court could, for example, make decisions in advance of the trial as the admissibility of such survey results and/or order cost protective mechanisms (in the form of costs-capping orders) to ensure that the costs involved were kept to a minimum. If you are considering commissioning a survey report in support of your case, you should consider carefully the scope of the survey, the questions it will include, the target group of intended respondents and the method of carrying out the survey. Illustrative examples of the court s involvement in such matters, including those considered in the UK Channel Management case, are included in the A & E Television case. Interviewing a witness Code of conduct requirements Lawyers should not place witnesses under any pressure to provide anything other than a truthful account of evidence. The 2011 code provides specific illustrations of what is and what is not acceptable behaviour as regards obtaining evidence from witnesses. It is recommended that these new IBs are closely observed when interviewing and working with witnesses. If you are concerned about the veracity of your witness s evidence you need to make sure that you closely comply with the requirements in the 2011 code to make sure your own conduct is not regarded as amounting to deceiving or misleading the court. This essentially replicates and in some cases expands on the previous recommended practice. Before the meeting Communications between lawyers and the witness are privileged, so will not be seen by the other parties. To help a witness prepare and refresh their memory, think about sending them: a chronology of key events; a list of questions or areas to discuss; a bundle of key documents. But bear in mind that: if you want to see a witness reaction to a piece of evidence, you should not send them documents; you may waive privilege by sending a witness a copy of a privileged document: hold a meeting to show them any privileged document you want them to see; the information you give the witness (like the questions at interview) must not lead the witness to a certain conclusion. When preparing witness evidence, be clear which facts need to be proven at trial. Make sure all relevant areas are explored with a witness: beware of becoming too blinkered or focused on individual issues. Ensure nothing is overlooked. The information you give the witness must not focus the witness too much. Consider asking the witness to give you and relevant documents they have, remembering they are liable to be disclosed once you have seen them. At the meeting Take full notes of everything the witness says, including matters that do not assist your case. These notes will also be privileged and will be helpful in identifying areas of potential weakness and areas for crossexamination at trial. Ask open questions, followed by more specific details. It sounds obvious but your job will be easier if you build a rapport with the witness. It might take months (and many drafts) to finalise a witness statement; this will be easier if the witness is willing to help co-operate. Having a panel of lawyers firing questions at a witness can be intimidating and counter-productive. It is often useful for counsel to attend meetings and review draft statements. Where a witness is giving evidence relevant to an aspect of expert evidence, be wary about involving your expert witness in the process. Personal Injury Newsletter 5

6 In practice The expert witness s independence must not be compromised. Disclosing draft statements to an expert may waive privilege over them. However, you can involve an expert adviser in the witness interview process without these complications. It will be easier to take notes if you have a paginated or numbered bundle of documents for the witness to refer to at the meeting. Where there are multiple witnesses, consider having a key bundle of documents for them to refer to at meetings. Reluctant or forgetful witnesses A witness may be reluctant to give evidence. The 2011 code has a mandatory outcome O(5.8) which requires that you do not make or offer to make payments to witnesses dependent upon their evidence or the outcome of the case. You may therefore pay a witness reasonable expenses and compensation for loss of time in attending court but that if there is any suggestion that the payment is being/has been made dependent on the nature of their evidence or the outcome of the case then such payment is not permissible. As was the case under the old rules a party may always seek to challenge the credibility of a witness where a payment on account of their expenses/loss of time. A party can obtain a witness summons requiring a witness to attend court. This can be useful if the witness is willing to help but concerned about getting time off work or jeopardising a relationship with another party. Special rules apply as regards obtaining witness evidence from a mediator/mediation administrator as regards evidence arising out of or in connection with the mediation of a cross-border dispute where the mediation commenced on or after 6 April 2011 (CPR CPR 78.28). Where a witness is reluctant to give a witness statement in a Technology and Construction Court (TCC) case, a party can apply for the court s permission to serve a witness summary of their evidence or issues which their evidence would support or refute (see TCC Guide para ; CPR 32.9). If a witness says they cannot remember the events in question, consider asking them to make a statement to that effect in case another party later persuades them to make a fuller statement in their favour. You can then submit the earlier witness statement to show the inconsistency. Witness who does not speak English In the Commercial Court, if a witness does not speak fluent English, the witness statement should be in the witness s own language and a translation provided (see Admiralty and Commercial Courts Guide, para H1.4). Unavailable witnesses Witness summary If a party is unable to serve a witness statement but wants to call that witness at trial, they can apply (without notice) for the court s permission to serve a witness summary. The summary sets out the name and address of the witness and the areas to be covered by their evidence. This approach carries certain risks: you cannot be certain what the witness will say in evidence if you have been unable to speak with them directly (CPR 32.9). Other parties are entitled to inspect any document referred to in a witness summary (CPR 31.14(1)(c)). Evidence by deposition Parties can apply for permission that a witness gives evidence by being examined under oath before trial. The deposition is usually before an examiner (appointed by the Lord Chancellor) but can also be by a judge or any other person appointed by the court (CPR 34.8; CPR 34.15). A party granted an order permitting a witness to give evidence by deposition can be ordered to serve a witness statement or witness summary in relation to the evidence (CPR 34.8(7)). Evidence can be taken by deposition for use in proceedings in England and Wales where the witness is: in England and Wales but unable to attend trial (CPR PD 34A, para ); or overseas (CPR PD 34A, para , ). If a witness will be unavailable to attend trial, consider whether evidence can be given by video link, as this could be a cheaper option (CPR 32.3; Chancery Guide, para ). Witness outside England and Wales The rules will depend on which jurisdiction the witness is domiciled in. Scotland or Northern Ireland The High Court can compel a witness in Scotland or Northern Ireland to give evidence at court or before a court appointed examiner (Senior Courts Act 1981, s 36). Another EU member state (other than Denmark) Evidence can be taken from a person in any EU member state (other than Denmark) (ie, Belgium, France, Germany, Italy, Luxembourg, Netherlands, Ireland, UK, Greece, Portugal, Spain, Austria, Finland, Sweden, Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, Slovenia) using the Taking of Evidence Regulation 2001 (CPR 34.22(b); CPR PD 34A, para ). A party wanting to take a deposition from a witness in another member state for use in proceedings in England and Wales must apply for an order that the court issues a request (CPR 34.23). The request must be on Form A, annexed to the Taking of Evidence Regulation Witness in any other country: letters of request A party can take a deposition from a person in Denmark or any overseas country that is not an EU member state by applying for an order that the High Court issues a letter of request to the judicial authority of the country where the deponent is (CPR 34.13; CPR PD 34A, para ). Failure to serve a witness statement A witness cannot give evidence at trial if that witness s statement is not served within the time specified by the court. In practice, parties can apply for the court s permission and the court will only prevent a party from adducing witness evidence in exceptional circumstances (CPR 32.10). Karen O Sullivan Professional support lawyer LexisNexis 6 Personal Injury Newsletter

7 Case digests Case digests Maynard v Wigan Metropolitan Borough Council [2012] All ER (D) 144 (Jan) 21 December 2011 Occupier s liability Common duty of care Defendant local authority being occupier of grass verge Claimant injured after twisting ankle in hole on grass verge Claimant successfully bringing proceedings against authority Whether judge erring. The claimant lived within the defendant local authority area. Outside her house was a grass verge across which ran two footpaths to the road. In August 2006, the claimant and her family were walking to her car on the road. The claimant walked across the verge when she fell and twisted her left ankle. She issued proceedings against the authority alleging her fall had been caused by her foot going into a hole in the grass. She claimed the presence of the hole amounted to a breach of the authority s duty of care as occupier of the grass verge. The authority accepted it was the occupier and owed the claimant a common duty of care. It accepted that she had fallen on that day and roughly in the place alleged. However, it denied any breach of duty and the presence of any hole capable of amounting to a danger. At the hearing, there was insufficient evidence regarding the existence and size of the hole. The claimant had estimated the hole to be at least 4.5 inches deep. Her husband estimated it to be six inches deep. Various sets of photographs were produced in evidence, none of which were contemporaneous. One set of photographs, taken in 2010, showed a hole or indentation in the grass in the position at which the claimant said her accident had taken place. Measurements taken at the time of those photographs showed the hole to be two inches deep from its base to the level of the grass. The claimant accepted that those photographs gave the best visual impression of the appearance of the hole at the time of her accident but did not accept that the actual depth of the hole as measured in 2010 was the same as it had been at the time of her accident. She gave evidence that she had complained to the authority about the hole before her accident but that nothing had been done. The judge in the county court accepted the claimant as a truthful witness. He said he was satisfied that it was as a result of stepping into this hole that [the claimant] suffered her fall. That...indicates, whatever the precise dimensions of the hole at the time of the accident, that it was a potential and...an actual source of danger. Had there been no complaints to [the authority], then it may be that I would not have found that there was any breach of the occupiers common duty of care under the [Occupiers Liability Act 1957]. But I have already accepted that complaints were made; and, on the evidence, nothing was done in response to those complaints. As a result, [the claimant] suffered a fall. In those circumstances it seems to me she has made out her case on liability. The judge held the claimant had contributed to the accident by her own negligence, assessed to have been 50%. Damages had been agreed at 3,000; the claimant was awarded 1,500. The authority appealed. It submitted that the judge s decision could not stand given that: (i) he had not made clear findings about the size, depth or characteristics of the hole, instead he inferred that the hole had been dangerous because the claimant had fallen after stepping in it; and (ii) he had inferred that the hole had been dangerous because the claimant had complained about it. The appeal would be dismissed. The judgment had been open to criticism with regard to the clarity of the reasoning, however, the conclusion that the authority had been in breach of the common law duty of care had been supported by a process of reasoning. The judge s findings of fact had not been as clearly set out as might have been wished. It had not been permissible for him to have found that the hole had been dangerous because the claimant had fallen after stepping into it. Nor had it been permissible or him to have inferred that the hole was dangerous because the claimant had previously complained about it. However, the judge had accepted that there was a hole into which the claimant had stepped. That indicated that the irregularity in the ground had been big enough to be described as a hole and one into which an adult could have stepped. It had been clear the judge had accepted the detail of the claimant s account of how the accident had happened. Although he had not said so expressly, he had meant to find that the hole had been sufficiently deep for the claimant s foot to get stuck in it. That had been a finding of fact that had plainly been open to him and it was the only fact consistent with his observations about the claimant s truthfulness. Had the hole been deep enough to have that effect, it had to have been considerably more than two inches deep and it would have been reasonable to infer from the way in which the accident had happened that the hole had to have been forseeably dangerous. Mugweni (by her litigation friend) v NHS London [2012] All ER (D) 145 (Jan) 26 January 2012 Medical practitioner Negligence Duty of care Causation Defendant s doctor performing open heart surgery on claimant shortly after her birth Claimant suffering brain damage Claimant claiming damages for clinical negligence Defendant held to be negligent Court finding established negligence not causing injury Claimant appealing Whether court erring. The claimant was born at Guy s Hospital in She suffered from CHARGE syndrome, which was congenital. Shortly after birth, she underwent heart surgery, in the course of which she suffered a cardiac arrest. She was severely disabled. In 2009, she issued proceedings against the defendant, which was the successor to the health authority which had had responsibility for the hospital in She alleged that the doctor responsible for performing the operation on her post birth had been negligent in performing that operation, so that he had caused further brain damage. The court held that the doctor had acted in breach of duty, but that the breach had not, on the facts, caused any relevant damage. The claimant appealed, and the defendant crossappealed. The claimant submitted that the judge had erred in his conclusion that the doctor s actions had not contributed to the brain damage. The defendant submitted, having regard to the lapse of time, and its consequent effect on the evidence, that the judge had erred in finding the doctor negligent. The appeal and cross-appeal would be dismissed. On the evidence, the judge had been right to reject the claimant s case on causation, but had been entitled to reach the findings that he had on breach of duty. Bailey (by her father and litigation friend) v Ministry of Defence [2008] All ER (D) 382 (Jul) applied. Decision of Langstaff J [2011] All ER (D) 243 (Feb) affirmed. Personal Injury Newsletter 7

8 Legislation Legislation update Reporting of Injuries, Diseases and Dangerous Occurrences (Amendment) Regulations 2012 Pneumoconiosis etc (Workers Compensation) (Payment of Claims) (Amendment) Regulations 2012 Enactment citation SI 2012/199 Commencement date 6 April 2012 Legislation affected SI 1977/500, SI 1989/971, SI 1995/3163 amended Enabling power Health and Safety at Work etc Act 1974, ss 15(1), (2), (3)(a), (4)(a), (9), Sch 3, paras 15(1), 16, 20 Enactment citation SI 2012/Draft Commencement date 1 April 2012 Legislation affected SI 1988/668 amended Enabling power Pneumoconiosis etc (Workers Compensation) Act 1979, ss 1(1), (2), (4), 7(2) Amend the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995, SI 1995/3163, by: increasing the period of incapacitation from over three days, to over seven days before the occupational injury or accident which led to the incapacitation is required to be reported to the enforcing authority; increasing the period of time from ten days to 15 days, before the responsible person is required to submit a report concerning an occupational injury, or accident which leads to over three days of incapacitation; requiring the responsible person to keep a record of an occupational injury, or accident which leads to over three days of incapacitation; and specifying the particulars to be kept in any records of an occupational injury or accident which leads to over three days of incapacitation. Make consequential amendments to: the Safety Representatives and Safety Committees Regulations 1977, SI 1977/500, in order to allow safety representatives to continue to inspect the part of the workplace where an occupational injury or accident occurred, which led to over three days of incapacitation; and the Offshore Installations (Safety Representatives and Safety Committees) Regulations 1989, SI 1989/971, in order to allow safety representatives to continue to inspect offshore installations and equipment related to an occupational injury or accident which led to over three days of incapacitation. Makes provision for lump sum compensation payments to people suffering from certain dust-related diseases, or their dependants, who are unable to claim, or have not received, payments of damages from their employer. The compensation payments are set according to the age of sufferers and the extent of their disability. This instrument increases the amounts of compensation paid to sufferers, or their dependants, under the Pneumoconiosis etc (Workers Compensation) Act 1979 by 5.2% from 1st April My Delivery Details *Required Fields *Title: *Name: *Surname: *Job Title: *Company: *Address 1: *Address 2: *Town: *Postcode: Telephone: SUBSCRIBE TO BUTTERWORTHS PERSONAL INJURY NEWSLETTER BY FILLING IN THIS FORM 1 YES! I would like a 12-month subscription to Butterworths Personal Injury Newsletter, please invoice me for Return Your Order Signature Date / / Marketing Department, LexisNexis, Freepost RSJB-BCTH-ZGUB, Quadrant House, the Quadrant, Sutton, SM2 5AS Fax +44 (0) Privacy Policy We have a commitment to protect your privacy. We may use the information we collect from you to keep you informed of LexisNexis products and services. We do not sell, trade or rent your address to others, but we may pass your postal details to trusted third parties. If you do NOT wish to be kept informed by mail phone fax of other LexisNexis products and services, please tick the relevant box. If you do NOT wish your mailing details to be passed on to companies approved by LexisNexis, to keep you informed of their products and services, please tick the box. For further details of our privacy policy please visit our website at: Please quote response code AD Personal Injury Newsletter

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