NEWS UPDATE FOR PERSONAL INJURY PROFESSIONALS. Government s health & safety reform plans criticised

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1 Butterworths Personal Injury Newsletter XXXXX XXXXX XXXXXXXXXXX February 2012 Vol 4 Issue 2 NEWS UPDATE FOR PERSONAL INJURY PROFESSIONALS Assisted suicide to be legalised? Assisted suicide with effective legal safeguards could be offered to terminally ill people, according to a Demos Commission chaired by former Lord Chancellor, Lord Falconer QC. A legal framework has been outlined by the Commission on Assisted Dying under which a dying person can be prescribed medication to end their life following the assessment and support of two independent doctors. Its report calls for eligibility criteria to apply including that the person is at least 18, has a terminal illness, is making a voluntary choice, has mental capacity to make that choice, and that their decision is not impaired by mental health problems or pressure from friends or relatives. The commission, however, stops short of advocating euthanasia: it recommends that the person must be able to take the medication themselves so they can clearly show their agreement. Safeguards for any future legislation are also set out by the commission, including ensuring the person has been fully informed of all other treatment and care options, that there is safe storage and transportation of lethal medication, and that there is monitoring and regulatory oversight by a national monitoring commission with investigatory powers. Assisting someone s death is presently a criminal offence, although there have been no prosecutions since the Director of Public Prosecutions (DPP) published his policy on the issue in February More than 40 cases of assisted suicide have been reported to the DPP since then. Government s health & safety reform plans criticised Plans announced by David Cameron to water down health and safety (H&S) laws have been attacked by lawyers and unions. Speaking to an audience of businesses in Maidenhead, the Prime Minister condemned the stranglehold of bureaucracy around H&S rules on UK employers. He pledged to change the H&S law on strict liability for civil claims to ensure companies are no longer automatically at fault if something goes wrong. The government will also look into levels of compliance required of businesses to ensure they do not go far beyond what is actually required by the law to A s secure their insurance cover. He plans to gather together insurance company chiefs and ask them to set out what they will do to deal with this problem. Cameron also outlined plans to extend the scheme that caps the amount lawyers can earn from low-value personal injury claims, and reduce overall costs in cases funded by no win, no fee deals. This, he said, will help bring down the cost of many cases and deter the speculative H&S claims made against good businesses that would appear to have done nothing wrong. Association of Personal Injury Lawyers president, David Bott, said that instead APIL calls for launch of employers liability insurance bureau Acheme similar to the Motor Insurers Bureau (MIB) should be set up for workers who fall victim to industrial injuries and diseases, according to the Association of Personal Injury Lawyers (APIL). Hundreds of victims of industrial disease including, for example, about one in ten mesothelioma sufferers are left uncompensated each year because their employer s insurer cannot be traced. Those injured by uninsured drivers, on the other hand, may be entitled to claim compensation from the MIB. Writing in New Law Journal, last month, Karl Tonks, APIL s vice-president, called on the government to legislate for an employers liability insurance bureau (ELIB) funded by the insurance industry. A government consultation on ELIB, he points out, closed on 5 May 2010 and yet 18 months later, no response has been forthcoming from the government. He said it is hard enough for victims of industrial disease to claim compensation against their responsible employers given that those claimants have to overcome the civil burden of proof and show that they have been wrongly exposed and it was that exposure that has caused them to develop the industrial disease in question. He added: The difficulties are exacerbated when the exposure in question was many years ago. It can take over 40 years before the onset of symptoms of mesothelioma. So these claimants can be faced with the added difficulty of being unable to trace their former employer s liability insurance. of watering down the rules which are designed to protect workers, businesses should be made to feel confident in the knowledge they have nothing to fear from litigation provided they take reasonable steps to prevent needless injury. Any fear businesses have should be for the welfare of their staff, not legal costs, he added. TUC general secretary, Brendan Barber, said: Every government report on the UK s supposed compensation culture has shown it to be a myth, and in fact claims have been declining over the past decade. Despite this the government seems hell-bent on trying to stop workers injured by their employers negligence being able to claim compensation. Contents Late Pt 36 acceptance: who carries the can? 2 In practice 4 Case digests 6 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 Who carries the can? Who carries the can? James Counsell l examines the courts approach to additional costs when it comes to late Pt 36 acceptance Rule (5), CPR provides that unless the court orders otherwise, the claimant offeree will pay both parties costs for the period between the date 21 days after a Pt 36 offer had been made and acceptance, thereby reversing the general rule in r 44.3, CPR that the unsuccessful party pays the costs. What happens when the claimant was not in a position to accept the offer at the time it was made either because the medical position was not clear or the parties were legitimately, perhaps even as part of a court direction, awaiting further evidence? Should the court take the view that the risk of what that evidence might reveal should be borne by a claimant in view of r or should the defendant, who has, after all, forced the claimant to go to litigation, continue to bear the risk? What is the position if the court would/ might not have sanctioned a settlement in cases involving children or patients? These and other scenarios have been examined recently in a flurry of reported and, as yet, unreported cases where the courts have sought to distinguish between, on the one hand, risks arising out of litigation contingencies and, on the other, circumstances where it would be unjust to require the claimant offeree to pay. Lumb v Hampsey For once, the law is reasonably clear. Its application is what causes difficulty. In Lumb v Hampsey [2011] EWHC 2808, Lang J, giving judgment in favour of the offering defendant (beware the Lawtel summary which gives a misleading summary of her decision read the transcript) set out the following principles: 1. the burden of showing that the costs should not be paid by the claimant is on the claimant; 2. the claimant is required to demonstrate that the usual order would be unjust. It is not sufficient to argue that he behaved reasonably by not accepting the offer when it was made; and 3. by analogy with r 36.14, in considering that issue, the court should take into account the terms of any offer, the stage in the proceedings when the offer was made, the information available to the parties when the offer was made and the conduct of the parties with regard to giving each other information when required. In Lumb, the claimant relied principally on the third of those factors: the information available. It was argued that the claimant, a protected party, was simply not able to know whether the offer was a good one. He was still undergoing neurological rehabilitation, the result of which was not known. The nursing evidence was not available. During the period between offer and acceptance, his marriage broke down which meant additional and unforeseen care costs arose from the need to obtain professional help rather than rely on his wife. Moreover it had been the claimant s lawyers view that the necessary court approval would not have been obtained without the additional evidence not then available. None of these factors persuaded the court to reverse the usual order. Lang J reminded herself that the test was not whether or not the claimant acted reasonably in not accepting but whether it would be unjust for the usual order to be made. She referred to Matthews v Metal Improvements Co Inc [2007] EWCA Civ 215, an appeal from a costs order in the claimant s favour where a claimant had done no better than an offer made (a r case). Stanley Burnton J (as he then was) explained the rationale behind the reversal of the usual order at [33]: The risks that the parties run are costs risks, in the case of the defendant that he will have to pay all of the claimant s costs, notwithstanding his payment, and in the case of the claimant that he will have to pay the defendant s costs from the last date when he could have accepted the payment. In other words, the function of a Pt 36 payment is to place the claimant on that costs risk if, as a result of the contingencies of litigation, he fails to beat the payment. Taken to its logical conclusion, what r (and, by analogy, r 36.10) does is to shift the costs risk to the offeree regardless of whether or not the offeree acted reasonably in rejecting or not accepting the offer. In Lumb, however, Lang J did not need to go that far because she rejected each point on the facts rather than on principle: She concluded that the claimant did have sufficient medical evidence at the time of the offer to make an assessment of his condition; which condition did not essentially change thereafter; Moreover, the claimant was in a position to value his claim (and had done so during settlement negotiations before the offer was made); As to the argument that the court would not have endorsed any settlement, the judge described this as hypothetical since no application had actually been made; Finally, the judge took into account the fact that none of these difficulties were raised by the claimant s representatives at the time: If they had been frank about these diffi culties they could have asked for an extension of time for acceptance of the Pt 36 offer Instead, they simply held out for a higher offer from the defendant as they were entitled to do. Lumb, therefore, is a case which is helpful in setting out the law to be applied but one decided very much on its own facts. It does not provide support for the proposition that an unclear medical picture can never be a factor to take into account. If that were the law, then the information available to the 2 Personal Injury Newsletter

3 Who carries the can? parties at the time of the offer could never be a factor. Nor is it authority for the proposition that the fact that the court would not give approval to a settlement might not be a factor which might make it unjust to make an order in favour of the defendant. Although in Matthews, the Court of Appeal made clear that the fact that a defendant faced proceedings brought by a claimant who was a patient should not affect any costs protection which he might otherwise have [28], Lang J in Lumb made clear that there may be circumstances where the fact that the claimant is a patient does have implications which may make it unjust for a costs order to be made. Thompson v Bruce Thompson v Bruce [2011] EWHC 2228, a decision of John Leighton Williams, QC, sitting as a Deputy High Court Judge on 28 June 2011, is an example of a case where the court did take this into account [56]: Given that approval was necessary, that the claim had not been fully valued and that the defendant s arguments about breach of duty and, possibly, causation needed to be considered with the experts, I consider it would have been diffi cult, if not impossible, for the claimants to decide whether to accept the offer within the 21 days and that the defendant would have realised this. How have the courts dealt most recently with these principles? In the last month (December 2011), there have been at least two decisions, one by Popplewell J in the, as yet, unreported case of SG v Hewitt [2012] EWHC (judgment given on 2 December 2011, transcript awaited) and the other by a district judge, DJ Grand, in Newport, Isle of Wight County Court in Sturton v Brighstone Landscaping Ltd (also unreported but judgment given on 6 December 2011). SG v Hewitt In SG v Hewitt, the court found in favour of the defendant. Popplewell J held that the mere fact that there was uncertainty as to the value of the claim was not, by itself, sufficient to justify a departure from the usual rule that the claimant pays. He had to balance two competing considerations. On the one hand he was satisfied that the claimant had acted reasonably throughout. On the other, the defendant was entitled to rely on the provisions of Pt 36 and uncertainty as to condition was simply one of the many contingencies of litigation. His Lordship found that this was not an exceptional case which made it unjust for the claimant to pay the defendant s costs. His full reasoning must await the transcript. Sturton v Brighstone In Sturton, the district judge was faced with two reasons why a patient should not have to pay the costs of late acceptance: First, at the time of the offer she had just begun to suffer very serious knee symptoms which further reduced the mobility of a middle-aged lady with learning disabilities who had suffered a serious ankle injury in the index accident. It was common ground that nobody knew at the time of the offer whether the knee symptoms were related to the ankle injury in such a way as might increase the quantum of the claim or whether they were entirely unrelated, in which case, this factor was likely substantially to reduce the claim because much of the cost of future care would be likely to be needed anyway. Secondly, the claimant relied on the fact that care evidence had not yet been obtained. Six months after the offer was made, the court ordered that a joint report should be obtained, such evidence being necessary to resolve the issues. When it was obtained, six months after that, it was so unhelpful to the claimant s case that the offer was promptly accepted. The district judge drew a distinction between the first factor (the intervening knee problem) which he ruled was outside the normal contingencies, the risk of which the claimant should bear after an offer had been made and the need for a care report which he held was one of those contingencies of litigation, the risk of which the claimant should bear. He ruled that the defendant should pay the costs up to the date when there was medical evidence as to whether the knee condition was related to the accident injuries (it turned out to be an acceleration case although the experts disagreed marginally on the period of acceleration) and thereafter, the claimant should bear the costs, the need for care evidence being a normal litigation contingency. Practice points What lessons can one draw from these cases if you are considering whether to accept an offer where the case is not, as yet, fully prepared? Don t assume that the court will not order a claimant to pay the costs even where it is entirely reasonable not to accept it at the time it was made. That is not the test. All other things being equal, that is just tough luck on the claimant who is later advised to accept. If the outstanding evidence relates to a particular issue arising out of the injuries sustained in the index accident or to a particular head of claim attributable to those injuries, the likelihood is that, if things do not work out as hoped, thereby forcing a late acceptance, the claimant will pay the intervening costs. If the reason for non-acceptance relates to something beyond the normal contingencies of litigation, then the court is more likely to make a different order. If faced with either situation, consider whether to request (either from the defendant or from the court) an extension of time to accept the offer, or, depending upon what is awaited, a stay pending a specific event. In any event, make sure that the defendant s representatives are kept fully in the picture as to why the offer has not been accepted so that they cannot later suggest that this is a convenient ruse arising out of a mistake made at the time of the offer; If acting for a child or patient, don t assume that you will be saved from a costs order by arguing that the court would not, or might not, have sanctioned the settlement. Consider whether yours is a case where you actually ought to make the application, perhaps combined with an alternative application for a stay or extension of time to accept if the court refused to endorse the settlement. James Counsell Barrister Outer Temple Chambers Personal Injury Newsletter 3

4 In practice Hitting the road Karen O Sullivan examines how courts assess the relative culpability of the parties involved in road traffic accidents Aside from motor vehicles there are many other users of the highway including: motorcyclists; cyclists; pedestrians; children; emergency vehicles. When using the highway, each user is under a duty to take such care as is reasonable in the circumstances to ensure they do not injure their neighbour. Consideration of the leading cases for each category gives the practitioner an indication of the approach taken by the courts when assessing the relative culpability of the parties involved in road traffic accidents. Motorcyclists Motorcycles can accelerate much faster than cars and they require a greater stopping distance. The combination of these two factors accounts for the prevalence of accidents involving motorcyclists. The most common reasons for motorcycle accidents are: speed; failing to keep a proper lookout. The Highway Code (r 211) specifically requires car drivers to keep a lookout for motorcycles and bicycles as they are often difficult to see. The speed of a motorbike will often be considered to have contributed to an accident. In Henderson v Cooke [2002] All ER (D) 286 (Oct) a motorcyclist collided with a car which was emerging from a minor road. Liability was apportioned between the parties on a 50/50 basis because the motorcyclist was judged to have ridden too fast on the unlit road at night. Even when a motorcyclist is riding at less than the speed limit they can still be held liable for an accident. In Thomas v Kostanjevec [2005] All ER (D) 39 (Jan) a motorbike fatally collided with a pedestrian. Although the motorbike was travelling at 10mph less than the speed limit the motorcyclist was held wholly liable for the accident on the basis that when driving a powerful machine and approaching a bend he should have slowed down to a speed whereby he could stop if an obstacle was in the way. Another common accident is where a motorcyclist is overtaking slow moving traffic and collides with another vehicle emerging from a side road. The Highway Code permits filtering into slow moving traffic at r 88 but warns the motorcyclist to look out for other road users who may be crossing the road or emerging from a side road. The leading case is Powell v Moody (1966) 110 Sol Jo 215 in which a motorbike was overtaking a stationary line of traffic when it collided with a car inching his way out. The Court of Appeal upheld an apportionment of liability which held the motorcyclist 80% to blame and the car driver only 20% responsible, on the basis that overtaking a line of traffic is an hazardous undertaking. Generally a motorcyclist who is involved in an accident with another vehicle while overtaking stationary traffic can expect to have their negligence assessed at up to 80%. Cyclists When cyclists, especially children, are involved in collisions with motor vehicles they tend to elicit considerable sympathy from the court due to their very vulnerable status on the road. Nevertheless, they frequently encounter allegations of contributory negligence against them. For example, in Russell v Smith [2003] EWHC 2060 (QB), the High Court held that a ten-year-old cyclist who failed to give way at a junction had his contribution to the loss reduced from 75% to 50% due to the equitable element of the Law Reform Contributory Negligence Act 1945 (s 1(1)). In Phethean-Hubble v Cole [2011] All ER (D) 264 (Feb) a 16-year-old cyclist who pulled onto the road directly in front of an oncoming car had his damages reduced by one-third for his contribution to the collision and the defendant (who was speeding) was assessed as two-thirds responsible. Less sympathy has been exhibited where an adult cyclist simply fails to keep a lookout, even where there is negligence of a driver. So, in Clenshaw v Tanner [2002] All ER (D) 203 (Jan), even though the defendant turned left into a petrol station over the claimant s cycle lane, the Court of Appeal upheld a 50/50 finding because the defendant indicated and performed the manoeuvre slowly, thus being there to be seen. Similarly, in the unreported case of Howelss v Trefgin Oil [1997] the defendant successfully appealed a finding of negligence (75/25 in the defendant s favour) in leaving a lorry parked in a bend in the road, but visible some 40 metres distant and extending less than a metre into the road. The claimant failed to see it owing to wind and rain. Conversely, cyclists who collide with a vehicle door that has been opened in their path have strong arguments against an allegation of contributory negligence. In Burridge v Airwork [2004] All ER (D) 394 (Mar) the Court of Appeal held it was not negligent if a cyclist did not allow enough space for the possibility of a negligently opened car door. While each case was to be judged on its facts, the burden was on the other party to show the cyclist contributed to the accident. Several attempts have been made by defendants to secure a deduction for contributory negligence for a cyclist s failure to wear a helmet where this would have prevented or reduced the injury. The highway code provides that cyclists should wear a cycle helmet which conforms to current regulations (r 59). A cyclist who doesn t wear a helmet clearly runs the risk of contributing to their injuries although the burden is on the defendant to prove that the failure to wear a cycle helmet was a contributory cause of the injuries (see Smith v Finch [2009] All ER (D) 158 (Jan)). Pedestrians Guidance for pedestrians is contained in rr 1-35 of the Highway Code. Rule 7 repeats the Green Cross Code. Since drivers are in charge of potentially lethal machinery, there is a high burden on them to maintain observations of the road ahead of them. In contrast, a pedestrian has to look to both sides as well as forwards and is going at a speed at which they would rarely be a danger to anyone. In Baker v Willoughby [1969] 3 All ER 1528 neither the claimant nor the defendant had seen the other despite the fact that they would have been 4 Personal Injury Newsletter

5 In practice able to do so for at least 200 yards. The House of Lords overruled the Court of Appeal and restored the trial judge s division of liability, which was 25/75 in the pedestrian s favour. No blame attaches to a pedestrian who walks close to the edge of a footway. Indeed, in Chapman v Post Office [1982] RTR 165 CA Lord Denning MR went so far as to say that liability may not attach to a pedestrian who went an inch or two into the roadway. Even if that (being obiter) does not fully reflect the law, it appears that if a pedestrian produces a valid explanation for leaving the pavement, most likely to avoid an instruction, and they do so with reasonable care, they will not be found liable (see Watson v Thomas S. Whitney & Co Ltd [1966] 1 All ER 122). It is rare for a pedestrian to be found more responsible than a driver unless they had suddenly moved into the path of an oncoming vehicle. Car drivers have to be on the lookout for pedestrians in the road. In Eagle v Chambers [2003] All ER (D) 411 (Jul) a claimant, aged 17 and dressed in light clothing, was walking along a carriageway at about 11.30pm. She was upset and emotional and had consumed some alcoholic drinks. The road was virtually straight and visibility good. Bystanders and other drivers had been concerned for the claimant s safety and urged her to stop. She was struck by the defendant s car in the offside lane. He failed a roadside breath test but at the police station he was found to be under the drink-driving limit. The right finding of contributory negligence was 40%. A similar example is Lunt v Khelifa [2002] All ER (D) 352 (May) where a drunken pedestrian stepped out into the road in front of the defendant who was travelling at 25mph. The trial judge made a finding of liability 2/3 to 1/3 in the pedestrian s favour on the basis that in failing to see the claimant, the defendant had failed to keep a proper lookout. The Court of Appeal considered that to be somewhat generous to the claimant. However, it demonstrated its reluctance to interfere with fact-sensitive apportionment when determined by a judge who has had the opportunity to consider all the evidence first hand. The apportionment was allowed to survive the appeal, despite the Lord Justice s reservations. Rules are rules for drivers that relate to pedestrian crossings. In Snow v Giddins (1969) 113 Sol Jo 229 CA, the claimant pedestrian was criticised for threading his way through traffic rather than using a nearby crossing, where he collided with a motorcyclist overtaking the traffic. It was held that the claimant had a higher standard of care if he chose to eschew the nearby crossing and so the appeal was allowed, with the claimant suffering a 25% deduction for contributory negligence. As the Highway Code makes clear, pedestrians should use zebra crossings where available, but that does not give them an absolute right to step into the road. Generally, where a car strikes a car on a zebra crossing, then it is very unlikely that the driver will be able to avoid liability, but on the facts the claimant may be vulnerable to an allegation of contributory negligence where he has not kept a lookout prior to entering the junction, such as in Clifford v Drymond [1976] RTR 134. Children When considering a road traffic accident involving a child it is not always easy to apportion liability between the child and a reasonably careful driver. A driver will be expected to exercise a higher degree of care if they are driving by a school, park or residential area where there is a greater likelihood of a child running into the road. Conversely, if a child was not visible before the accident because they were hidden behind a lorry or bus and they then run into the path of a car then, unless there is evidence that a driver did something wrong (such as speeding) there will be no claim as the driver has not been negligent. In Miller v C&G Coach Services [2003] All ER (D) 99 (Mar) a 15-yearold schoolgirl stepped into the path of a coach when she alighted from her school bus. The defendant was held not to be liable for the accident on the basis that he was travelling at an appropriate speed for the conditions and there was no indication before the accident occurred that the claimant was going to step out from behind the bus. If a driver has seen a child close to the road and adjusted their speed appropriately then they may well avoid liability for a subsequent accident (see Saleem v Drake [1993] 2 PIQR P129 CA). It is acknowledged that children do not have the same ability to appreciate danger as an adult. If a child is so young they cannot reasonably be expected to understand about road safety then the child will not be held to have been negligent. So in Puffett v Hayfi eld [2005] All ER (D) 256 (Dec) a six-yearold was not held to have contributed to his accident and instead the defendant was judged as driving too fast in the circumstances, as she knew children played in this built-up area. In Jones v Lawrence [1969] 3 All ER 267 a sevenyear-old who ran into the road was held to be exhibiting normal behaviour of a child of his age who momentarily forgets about road safety. The case law indicates the level of contributory negligence increases as a child gets older. Generally a child aged ten or over is more likely to be found to have contributed to an accident by, for example, running into the road without checking for oncoming traffic. In Grant v Dick [2003] All ER (D) 400 (Feb) the claimant was 14 years old and attempting to cross a duel carriageway when she ran across the road. She was assessed as being 40% responsible for the accident as the defendant had seen the children crossing the road and should have reduced his speed and sounded his horn. In Ehrari v Curry [2007] All ER (D) 258 (Feb) the first and main cause of the accident was the claimant walking into the road without looking, so she would bear the greater responsibility. Her age (13 years and nine months) was a factor that had to be taken into account and she therefore bore 70% of the responsibility for the accident. An 11-year-old in the case of Honnor v Lewis [2005] All ER (D) 374 (Apr) was held 20% responsible for the accident when he stepped in front of the defendant s vehicle. The defendant was held to have failed to appreciate the school warning sign and slow down sufficiently to enable him to have seen the claimant. Emergency vehicles Emergency vehicles which are responding to an emergency will often speed, overtake vehicles into the path of oncoming traffic and execute unexpected manoeuvres. This is in accordance with the various regulations which allow these types of vehicles, when responding to an emergency, not to comply with speed limits, traffic lights and signs and pelican crossings. Rule 194 of the Highway Code warns other drivers to be aware of approaching emergency vehicles by listening for their sirens or looking for Personal Injury Newsletter 5

6 In practice/ Case digests their flashing lights. Whenever possible other vehicles should let emergency vehicles pass them. A significant number of claims arise from collisions with emergency vehicles which were responding to an emergency call at the time of the accident. The main issue in these cases is normally whether the emergency vehicle was operating its warning siren and lights and whether the other road user should have taken notice Case digests Delaney v Pickett and another [2011] All ER (D) 201 (Dec); [2011] EWCA Civ December 2011 Road traffic Accident Personal injury Defences Ex turpi causa Claimant sustaining injury through poor driving of defendant while in vehicle with defendant Claimant seeking to recover damages from driver and insurance company Judge finding parties being in possession of drugs with intent to supply at time of accident Claim against both defendants dismissed Claimant appealing Whether defence of ex turpi causa available to first defendant Whether second defendant entitled to rely on criminal exception to avoid liability. The claimant suffered head injuries and brain damage as a result of a high-speed motor collision when his acquaintance, the defendant, negligently drove the Mercedes 500 SL sports car in which he was the front seat passenger, head on into an oncoming Toyota people carrier. The claimant s claim against the first defendant for damages was dismissed by the county court judge as was his claim against Tradewise Insurance Services Ltd, the second defendant. The judge found that the purpose of the journey was the collection and transportation of illegal drugs for subsequent re-sale. It therefore followed that the claimant s action arose directly ex turpi causa and for that reason had to fail. As against the second defendant, he found that liability was excluded under cl 6(1)(e)(iii) of the Motor Insurers Bureau (MIB) agreement because the vehicle was being driven in the course or in furtherance of crime. Under that agreement, the MIB agreed to pay a claimant any sum in respect of of this. In Scutts v Keyse [2001] All ER (D) 236 (May) the claimant stepped off a kerb and into the path of a police car which was travelling at 50mph on a 30mph road, with his sirens sounding and lights displayed. The claimant failed to establish negligence on the basis that the police driver was entitled to have assumed that the claimant would not ignore the approaching sirens. A claimant who collided at a junction an unsatisfied judgment (cl 5). Clause 6 stated to the effect that cl 5 did not apply in the case of an application made in respect of a claim where the vehicle was being used in the course or furtherance of a crime. The claimant appealed. The issues were: (i) whether the evidence indicated that the drugs were in the claimant s possession with intent to supply; (ii) whether the defence of ex turpi causa was applicable; and (iii) whether the second defendant could rely on the exception in cl 6 of the MIB agreement to avoid the policy. The court ruled: (1) The judge had been correct to find, on the balance of probabilities, that the two men had intended to travel together to acquire cannabis for resale and that the transportation of illegal drugs had therefore been the purpose of the journey. The judge had proceeded on a correct factual basis when considering the issue of ex turpi causa and the issue arising under the MIB agreement. (2) The maxim ex turpi causa expressed not so much a principle as a policy. Further, that policy was not based upon a single justification but on a group of reasons, which varied in different situations. The wider form of the maxim was that one could not recover compensation for loss which was suffered in consequence of one s own criminal act on the ground that it was offensive to public notions of fair distribution of resources that a claimant should be compensated (usually out of public funds) for the consequences of his own criminal conduct. In its narrower and more specific form, it was that one could not recover for damage which flowed from loss of liberty, a fine or other punishment lawfully imposed upon a person in consequence of one s own unlawful act. In that case it was the law which, with an ambulance which had passed through red lights and had its siren on was held 60% contributory negligent for failing to look and listen for approaching emergency vehicles and making space for them to pass (Griffin v Mersey Regional Ambulance [1998] PIQR P 34). Karen O Sullivan, Professional support lawyer, LexisNexis as a matter of penal policy, caused the damage and it would be inconsistent with the law to require you to be compensated for that damage. The wider rule might raise problems of causation: was the injury truly a consequence of the claimant s unlawful act or was it a consequence of the unlawful act only in the sense that it would not have happened if he had not been committing an unlawful act? The crucial question was whether, on the one hand, the criminal activity had merely given occasion for the tortious act of the first defendant to be committed or whether, even though the accident would never have happened had they not made the journey which at some point involved their obtaining and/or transporting drugs with the intention to supply, or, on the other hand, whether the immediate cause of the claimant s damage was the negligent driving. The answer to that question was clear. Viewed as a matter of causation, the damage suffered by the claimant had not been caused by his or their criminal activity. It had been caused by the tortious act of the first defendant in the negligent way in which he drove his motor car. In those circumstances the illegal acts had been incidental and the claimant was entitled to recover his loss from the first defendant. On that basis, the claimant was entitled to judgment against the first defendant. In interpreting cl 6 of the MIB agreement, crime had to mean serious crime, such as a crime that would give the driver a good defence of illegality (per Richards LJ). The clause should be read being subject to an implicit de minimis exception, but not as heavy a qualification as that favoured by Ward LJ. The possession of a commercial quantity of drugs with intent to supply was a serious crime to which the clause applied (per Tomlinson LJ). That which was potentially to be regarded as de minimis, the heinousness of the crime, 6 Personal Injury Newsletter

7 Case digests was of no necessary relevance to the tortious conduct giving rise to the injuries and thus a de minimis exception potentially involved the court in making a value judgment which was in any event irrelevant to the criteria pursuant to which the MIB has agreed to accept responsibility. The agreement did not provide that culpability was to be the touchstone of recovery. In this case, it was obvious that, on the facts as found, the vehicle was being used in the furtherance of a crime, if not also in the course...of a crime within the meaning of the clause. Given the judge s finding that the very purpose of the journey had been the transportation of the illegal drugs, the situation fell squarely within the wording of the clause and the policy that underlay it. In the circumstances, there was no other sensible conclusion other than the vehicle was being used both in the course of and in the furtherance of a crime. The appeal against the first defendant would be allowed and the appeal against the second defendant insurers would be dismissed. Marks & Spencer v Castle [2011] All ER (D) 96 (Nov); [2011] EWHC 3195 (QB) 14 November 2011 Costs Order for costs Discretion Claimant issuing proceedings for personal injury having fallen at defendant s store Defendant admitting liability Defendant making application to resile from admission Judge granting application and making punitive costs order in favour of claimant Whether judge erring. The claimant claimed for personal injuries and for financial loss consequent on his slipping and falling on a tag at the defendant s store (the store) on 20 December On 12 June 2009, the claimant s solicitors sent a letter detailing the claim. The defendant replied rejecting liability. In September, the claimant s solicitors wrote again pointing out what they suggested were flaws being put forward on behalf of the defendant. On 21 December, the defendant s solicitors wrote a letter admitting liability. During 2010 the claimant served an interim schedule of damages and then a further schedule indicating some 57,000 claimed and two interim payments were made in the sum of 1,000 and 2,000 respectively. On 31 December 2010, a claim form was issued and particulars of claim served on 6 January They recorded and relied upon the admission of liability in the defendant s letter of 21 December. On 11 February, the claimant made an application seeking a further interim payment of 6,000. On 1 March, the defence was served in which the defendant denied liability. They accepted an admission had been made and went on to state that they would be seeking permission to resile from that admission. On 9 March, a reply was served in which reliance continued to be placed on the admission and gave reasons for why the defendant should not be allowed to resile. On 4 April, the claimant s application for an interim payment was adjourned and costs reserved. On 31 May, an updated schedule of special damage was served indicating the amount claimed was almost 250,000. On 22 June, the judge heard argument on the defendant s application to resile from the admission. At that stage the defendant wished to rely on an assertion in a witness statement made by the solicitors that there was evidence that there had been an inspection of the relevant part of the store shortly before the accident had taken place. That resulted in disclosure of an accident data record which purported to record such an inspection, a statement of the store manager to the same effect and amendment to the defence to rely specifically on an averment of an inspection on the day in question. On 26 July, the judge concluded that the new elements gave rise to an arguable defence with a real prospect of success and concluded that the defendant should be able to resile from the admission. He said in the course of his judgment that he would not have acceded to the application had it not been for the evidence served since the initial hearing. He ordered that the defendant should pay the claimant s costs up to and including the date of the order including the costs of the hearing of 4 April 2011 and that the defendant should pay 4,000 on account of such costs by way of an interim payment. In reaching his decision the judge stated that it had not been a new evidence case on liability and that the claimant had suffered prejudice. The defendant appealed. It contended that the costs order which should have been made was that it pay the costs of, and occasioned by, its application to resile from the admission save that the claimant pay the costs of the hearing of 4 April It further contended that the order for an interim payment should be set aside. The appeal would be allowed. (1) The judge had been entitled to award the claimant the costs of the defendant s application to withdraw its admission despite the fact that the application succeeded, and to award the claimant the costs occasioned by the withdrawal of that admission, including any costs wasted as a result of the admission having been made. It was clear that some of the costs of the action would not have been incurred had it not been for the withdrawal of the admission. However, it was equally clear that there would have been a significant element of the costs that had been incurred on both sides that would have been incurred in any event even had the admission not been made. The effect of the judge s order was punitive in that it rendered the defendant liable for costs which might have been incurred in any event and which, if the defendant were to succeed at trial, it would be expected to recover from the claimant or at least not to have to bear. The justification for any such punitive order, if any, could only be found in the conduct on the part of the defendant. While the judge had a measure of discretion to impose such a punitive order, none of the matters to which he had referred justified imposing such a significant financial sanction on the defendant. In those circumstances, subject to the question of costs of the 4 April 2011 hearing, the order that he had made had been wrong in principle and would be set aside. (2) Once it had become clear that the defendant intended to pursue an application to withdraw its admission there was subsequently no realistic prospect of the claimant succeeding in an application for an interim payment without argument being heard as to whether the admission should be withdrawn. The judge had that very point in mind. A fair warning shot was sent across the claimant s bows and in those circumstances, if the district judge had himself been deciding costs on 4 April 2011 the proper appropriate order to make would have been that the claimant should bear the costs of that hearing. The reasons put forward by the judge were not sufficient to justify deviation from the order that would have been made had costs not been reserved. (3) The judge had erred in his reasoning and the interim payment order would be set aside. Personal Injury Newsletter 7

8 Legislation Legislation update Damages (Asbestosrelated Conditions) (2011 Act) (Commencement) Order (Northern Ireland) 2011 Health and Social Care Act 2008 (Primary Dental Services, Private Ambulance Services and Primary Medical Services) (Regulated Activities) (Transitory and Transitional Provisions) (Amendment) Order 2011 NHS Foundation Trusts (Trust Funds: Appointment of Trustees) Amendment Order 2011 Sunbeds (Fixed Penalty) Regulations (Northern Ireland) 2011 Enactment citation SR 2011/409 Enabling power Damages (Asbestos-related Conditions) Act (Northern Ireland) 2011, s 4(1) Enactment citation SI 2011/2948 Commencement date 16 January 2012 Legislation affected SI 2010/2484 amended Enabling power Health and Social Care Act 2008, ss 161(3), (4), 167(1), (3) Enactment citation SI 2011/2962 Commencement date 1 January 2012 Legislation affected SI 2007/1766 amended Enabling power National Health Service Act 2006, ss 51(1), (2), 64(5), (6) Enactment citation SR 2011/Draft Commencement date To be announced Enabling power Sunbeds Act (Northern Ireland) 2011 ss 12(3), 16(1), Sch 2, paras 4, 14 Provides for the Damages (Asbestos-related Conditions) Act (Northern Ireland) 2011 to come into operation on 14 December Provisions making certain asbestos-related conditions actionable personal injuries. Makes transitional provisions for providers of NHS primary medical services. Amends the Health and Social Care Act 2008 (Primary Dental Services, Private Ambulance Services and Primary Medical Services) (Regulated Activities) (Transitory and Transitional Provisions) Order 2010, SI 2010/2484. Makes transitory and transitional provisions in connection with providers of NHS primary medical services being brought into the regulatory system operated by the Care Quality Commission under the terms of the Health and Social Care Act 2008 from 1 April Makes amendments to the NHS Foundation Trusts (Trust Funds: Appointment of Trustees) Order 2007, SI 2007/1766 (the appointment Order). The appointment order provides for the appointment of trustees by the Appointments Commission for specifi ed NHS foundation trusts. Amends the provisions of the appointment order to: specify the trustee that the Appointments Commission must appoint for a specifi ed NHS foundation trust; make provision relating to the termination and suspension of trustees; provide that the Appointments Commission must not appoint a company as a trustee for NHS foundation trusts unless the NHS foundation trust is specifi ed; and specify the conditions to which any appointment is subject. Penalties set out for offences regarding the provision of sunbeds. Make provision under the Sunbeds Act (Northern Ireland) 2011 in relation to the regulation of provision of sunbeds. Prescribe the amount of fi xed penalties for certain offences included in the Act, which in most cases is 250, and provide the fi xed penalty form to be issued to offenders. 2 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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