Reforms to no win, The Court of Appeal. Personal Injury Newsletter. Vol 3 Issue 11. Butterworths. Court rules on landmark English costs case

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1 Butterworths Personal Injury Newsletter XXXXX XXXXX XXXXXXXXXXX November 2011 Vol 3 Issue 11 NEWS UPDATE FOR PERSONAL INJURY PROFESSIONALS Court rules on landmark English costs case The Court of Appeal has handed down its judgment in the largest costs case in English legal history. Motto v Trafigura concerned the battle for 100 million costs by Leigh, Day & Co which it claimed for its group action on behalf of 30,000 Ivory Coast citizens against Trafigura. The action began after a Trafigura-chartered ship hired contractors to dispose of toxic waste, which was dumped in the Ivorian capital. The case settled for nearly 1,000 per claimant plus costs. Trafigura s appeal was upheld by the court on proportionality, which ruled that any item on the bill was only to be allowed if it was necessary. It held Leigh, Day & Co could recover costs for abandoned claims if it was reasonable and proportionate to plead, investigate and pursue them. The costs judge s determination of a 58% success fee rather than the 100% claimed by Leigh, Day & Co was also upheld, while the cost of advertising to or identifying potential clients, and the cost of arranging a conditional fee agreement (CFA) were deemed unrecoverable. Costs incurred before CFAs had been entered into could also not be recovered. In a statement, Leigh, Day & Co said: We re pleased that the Court of Appeal has largely upheld the decision of Master Hurst that we ve always been content with. This is another step within the detailed assessment of our costs and we now move on to going through the bill of costs, item by item. Lawyers hit out over no win, no fee reforms Reforms to no win, no fee arrangements are unlikely to reduce premiums for consumers, the Law Society has claimed. Responding to a Transport Select Committee on the cost of motor insurance, the society said the planned changes to conditional fee arrangements which shift part of the costs of bringing no win, no fee cases from losing defendants to winning claimants will remove access to justice for millions of middle income families. The society said the insurance industry has created a compensation culture smokescreen to hide the real issue insurers putting the interests of shareholders ahead of those of consumers. It wants the government to suspend its plans and work with the legal profession to achieve fairer, less costly and more effective civil litigation procedures which preserve access to justice for consumers, reduce costs to businesses and protect vulnerable people. Society Chief Executive Desmond Hudson said: The reforms to civil litigation costs and funding which the government is proposing to introduce will further increase the profits of insurance companies to the detriment of consumers. There will be rejoicing in the boardrooms of insurance companies. The government, he said, has not only bowed to pressure from insurers, but has also fallen for the propaganda about compensation culture, which Calls for full reform of archaic coroner service P lans to improve the coroner service do not go far enough, according to the Association of Personal Injury Lawyers (APIL). While the Ministry of Justice s (MoJ s) proposed draft charter for inquests may benefit bereaved families, APIL said, a charter is no replacement for the planned full-scale reforms which were dropped by the coalition government. While the draft charter is welcome, it does not provide grief-stricken families with the updated system they so badly need, said APIL president, David Bott. Bereaved relatives, he said, deserve to have a system in which they can have confidence. But in a bid to save money, the new government abandoned plans to update one of the most important cornerstones of our society, he added. In its response to the MoJ s consultation on the draft charter for the current coroner service, APIL said it was disappointed that the government abandoned plans to implement the Coroners and Justice Act 2009 in full because of the current economic situation. APIL supported several initiatives in the Act, including the move towards largely full-time coroner posts and the requirement for organisations to report on coroners findings. Bott added: What is needed is for the government to put morals ahead of money and provide a system which serves grieving people properly. is something for which no credible evidence exists. Meanwhile, Jonathan Djanogly, the minister responsible for pushing through the reforms which could benefit the insurance industry by 1 billion a year has been stripped of his power to regulate claims management companies (CMCs) after he failed to declare that his children were shareholders in his brother-in-law s CMCs. Labour called for an inquiry after The Guardian revealed that Djanogly has investments worth at least 250,000 in firms with insurance arms. Justice Secretary Ken Clarke will now regulate the industry, leaving Djanogly in charge of legal aid and civil litigation. Contents A circular argument 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 A circular argument A circular argument Gerard McDermott QC examines an insurance-related conundrum which the European Court of Justice must get to grips with The cases of Benjamin Wilkinson and Tracy Evans consider the situation where one person is both the victim and an insured person who has given permission to drive to an unauthorised person who has caused the accident. These cases have proceeded through the English courts and were presented to the European Court of Justice (ECJ) for a reference for a preliminary ruling. Advocate General Mengozzi delivered his Opinion on 6 September 2011 (Churchill Insurance Company Limited v Benjamin Wilkinson and Tracy Evans v Equity Claims Limited; Case C-442/10). Law of England and Wales Under the Road Traffic Act 1988 (RTA 1988), s 151, where an unauthorised driver is involved in an accident and there is an insurer concerned (ie a certificate of insurance exists in relation to the vehicle involved in the accident), that insurer will have to meet the claim even if it did not insure the driver. There is a potential anomaly created where the insured, or one of those insured, is also an injured person in the vehicle and gave permission to the uninsured driver to drive. The question arises whether the statutory insurer, if obliged to meet a liability on behalf of a negligent driver (under RTA 1988, s 151(2)(b) and s 151(5)), has a right of indemnity against the claimant under s 151(8). If so, it would appear there would be a circuity of action; the claimant s claim for compensation against the insurer fails or in the alternative the claim is regarded as being satisfied subject to a separate, but immediate, right of recovery by the insurer against the claimant. Case history The lower courts considering the cases of Wilkinson and Evans each decided the matter differently with regards to the application and interpretation of RTA 1988, s 151. Wilkinson v Fitzgerald In Wilkinson v Fitzgerald [2010] 1 AER 198, Wilkinson was a named driver on his mother s insurance policy. He had allowed a friend, who he knew was uninsured, to drive the car while he travelled as a passenger. His friend lost control of the car and collided with another vehicle. Wilkinson suffered severe injuries. The judge found that under RTA 1988, s 151(5), Wilkinson s insurers were bound to compensate him and they were not entitled to reclaim that compensation from him under s 151(8). Blair J held that as a matter of the interpretation of s 151 as a whole, and applying community law, the insurer s right of recovery under s 151(8) could not be applied in such a way as to negate the insurer s obligation under s 151(5) to pay to someone entitled to the benefit of a judgment the sum payable under that judgment. Tracey Evans v Equity Claims Ltd In Tracey Evans v Equity Claims Ltd [2010] (county court, no citation available) the judge reached the opposite conclusion. Evans had allowed a friend to drive her motorcycle while she rode as a pillion passenger. She was unaware he was uninsured and she suffered serious injuries as a result of her friend s negligence. She received compensation, but a judge found that Evans insurers, Equity Claims Ltd, were entitled to reclaim that compensation from her under s 151(8). Those two claims were the subject of a hearing in the Court of Appeal under the joint reference: [2010] PIQR P15; [2010] EWCA Civ 556. In the Court of Appeal, Lord Justice Waller (at para 12) held: I was not persuaded that s 151(8) must be considered as if it were separate from section 151(4). Mr Worthington s argument was that s 151(8) should not be construed as excluding the insured passenger from the benefit of insurance in that s 151(4) conferred the benefit to the injured passenger, and s 151(8) simply entitled the insurer to an indemnity from an insured. It seems to me that the effect of s 151(8) as a matter of English law must be to exclude from the benefit of insurance a passenger who is the insured but has given permission to an uninsured driver to drive. Questions referred to the ECJ The Court of Appeal referred the following questions to the ECJ for a preliminary ruling: (1) Are arts 12(1) and 13(1) of the [EU Motor Insurance Directive 2009/103/ EC] to be interpreted as precluding national provisions the effect of which, as a matter of the relevant national law, is to exclude from the benefit of insurance a victim of a road traffic accident, in circumstances where: (a) that accident was caused by an uninsured driver; and (b) that uninsured driver had been given permission to drive the vehicle by the victim; and (c) that victim was a passenger in the vehicle at the time of the accident; and (d) that victim was insured to drive the vehicle in question? In particular: (i) is such a national provision one which excludes from insurance within the meaning of art 13(1)? (ii) in circumstances such as those arising in the present case, is permission given by the insurer (11) to the non-insured express or implied authorisation within the meaning of art 13(l)(a)? (iii) is the answer to this question affected by the fact that, pursuant to art 10 national bodies charged with providing compensation in the case of damage caused by unidentified or uninsured vehicles may exclude the payment of compensation in respect of persons who voluntarily enter the vehicle which caused the damage or injury when the body can prove that those persons know that the vehicle was uninsured? (2) Does the answer to question 1 depend on whether the permission in question (a) was based on actual 2 Personal Injury Newsletter

3 A circular argument knowledge that the driver in question was uninsured or (b) was based on a belief that the driver was insured or (c) where the permission in question was granted by the insured person who had not turned his/her mind to the issue? The EU law The EU Motor Insurance Directive 2009/103/EC codified all previous five EU Motor Insurance Directives. The Directives require all motor vehicles in the EU to be covered by compulsory third party insurance. One of the aims of the Directives is to ensure that compulsory motor insurance allows all motor vehicle passengers who are victims of an accident caused by the motor vehicle to be compensated for injury or loss they suffered. The protection of the victim occupies an important place in the Directives. Advocate General s Opinion When considering the questions AG Mengozzi observed that the Directive leaves the national legislature with some leeway in laying down the rules that govern civil liability, while also requiring that the victims of accidents are guaranteed, if not the same treatment in every member state, at least a comparable standard throughout the union. AG Mengozzi observed that civil liability lies outside the confines of this dispute and that it is not the purpose of the Directive to harmonise the rules on civil liability of member states. Question 1(i) AG Mengozzi found that the circumstances giving rise to this clearly fall within the situation governed by art 13(1)(a) of the Directive, in that the insurers seek to exclude their duty to pay, and such provisions or clauses, are incompatible with EU law. In reaching this conclusion he referred to the ECJ judgment in Candolin C-537/09 [2006] RTR1, which looked at the law under the first to third Directives and held (at paras 27 and 28): The member states must exercise their powers in compliance with community law and, in particular, with art 3(1) of the fi rst directive, art 2(1) of the second directive and art 1 of the third directive, whose aim is to ensure that compulsory motor vehicle insurance allows all passengers who are victims of an accident caused by a motor vehicle to be compensated for the injury or loss they have suffered. The national provisions which govern compensation for road accidents cannot, therefore, deprive those provisions of their effectiveness. Candolin emphasised the protective aims of the Directives to allow all passengers, except those in certain prescribed situations, who are victims of an accident to be compensated for their loss. Furthermore, the court made observations (at para 35) on the status of a passenger who is also the owner of the vehicle which caused the accident, saying:... The fact that the passenger concerned is the owner of the vehicle the driver of which caused the accident is irrelevant. In this case, (at para 27), AG Mengozzi, in reference to Candolin held that:... the court s case law teaches us that, unless one of the exceptions laid down by the directive is applicable, the victims of an accident are always entitled to be compensated by the insurer. Given that in the present case it is established that the facts are not caught by any of the exceptions expressly provided for by the directive, application of the Candolin case law tends to confirm that the two insured persons who gave unauthorised persons permission to drive their vehicles are nonetheless entitled to be compensated for their personal injuries. AG Mengozzi observed that attempts could be made to distinguish Candolin from the current case, as in Candolin the court did not indicate who the holder of the insurance policy was, although this was not a material fact. In doing so he made the following observation (at para 28): this aspect does not appear in practice to be relevant, the court having expressly stated that the only distinction permitted by the directive, when none of the exceptional circumstances mentioned therein that permit cover to be excluded applies, is that between driver and passengers, and that persons other than the driver are therefore, for the purposes of the directive, third parties entitled to compensation. At all events, it is not clear that the factual circumstances on which the judgment in Candolin is based may be distinguished from the typical case in which the owner of the vehicle is also the policyholder. Nor, moreover, is it to be forgotten that, as we have seen, in most member states the insurance policy simply covers a vehicle, without specifying who is authorised to drive it. Question 1(ii) AG Mengozzi held that the interpretation that the authorisation mentioned in art 13(1) is authorisation given, not by the insurer but by the insured, cannot be accepted. He said a purposive interpretation is required and that should not be shaken by the statement that the authorisation may be express or implied, having regard to the objective of protecting victims and as such authorisation should be interpreted broadly. AG Mengozzi also highlighted the fact that in most member states the insurance simply covers a vehicle without indicating which drivers are authorised to drive it. Question 1(iii) At present, if Candolin were to be applied, compensation would have to be paid to the insured who permitted an unauthorised person to drive his vehicle, and in the case of persons entering a vehicle in the knowledge that it was uninsured, art 10(2) allows compensation to be refused. AG Mengozzi noted that the situation of an insured vehicle and an uninsured vehicle are not comparable, as for the uninsured vehicle the Directive provides for obligatory action by designated bodies to guarantee a certain level of cover for victims. These rules may therefore be considered exceptional and differ from those regarding insured vehicles. Second, the Advocate General considered it arguable that a difference in treatment should be made good by reducing the level of protection afforded in the privileged or insured vehicle position, to render it equivalent to the level of protection afforded in the disadvantaged or uninsured vehicle position. In any event, the circumstances of individual accidents may be taken into account when determining the amount Personal Injury Newsletter 3

4 A circular argument/ In practice of compensation and may still be reduced for a passenger s contribution to the occurrence of their injuries. Question 2 AG Mengozzi held that it is irrelevant for the purpose of replying to the first question that the insured was or was not aware that the person to whom he gave permission to drive the vehicle was uninsured. Conclusion AG Mengozzi rejected the argument that the point at issue was not a refusal to compensate, but merely an offsetting of compensation against recovery from the negligent insured as proposed by the defendants in each case. He importantly observed (at para 37) that: Occupier s liability to lawful visitors The duty of care An occupier of premises owes a duty to their lawful visitors to take reasonable care to ensure that they will be reasonably safe when using the premises for the purpose for which they are entitled to be present (Occupiers Liability Act 1957 (OLA 1957), s 2). Grounds for a claim The key prerequisites for a claim are that: the proposed defendant must be an occupier of the premises; the proposed claimant must have been entitled to be present at the premises as either: an invitee of the occupier, or a licensee (a person with implied permission to be on the premises, such as a visiting tradesman); the danger that caused the injury must result from the state or condition of the premises (rather than being the result of an activity carried out on the premises); the danger must have been something of which the defendant was, or should have been, aware; the danger must have been something against which the defendant could reasonably have been expected to offer the claimant some protection; the level of care that the occupier should have exercised is variable, depending on the nature of the... Art 12(1) of directive 2009/103, in conjunction with art 13(1) thereof, must be held to mean that, when one and the same person is both victim and negligent insured, the fi rst status that of victim must prevail over the second. Unless one of the hypotheses applies in which the directive expressly provides that payment may be refused, the victims of an accident must be compensated. Finally, he suggested that the court should reply as follows: Arts 12(1) and 13(1) relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability must be claimant (eg whether the visitor was a child or an adult, or a workman who possessed, or professed to have, some particular skill). Who is an occupier? The control test An occupier is any legal entity with a sufficient degree of control over premises such that it can properly be considered to be an occupier. (Wheat v E Lacon [1966] 1 All ER 582). There is, of course, a significant element of circularity to this test, but the key is effective control. There is no requirement that an occupier must have a legal interest in the land. Where a claimant has come to harm at or in someone else s premises as a result of the state of the premises, the real question then is: did the proposed defendant have such control over those premises that it would have been in a position to correct whatever defect or danger caused the injury? An objective test should be applied when considering whether an occupier has taken such steps as are reasonable to see that visitors are reasonably safe. (Esdale v Dover District Council [2010] All ER (D) 73 (Oct)). Applying the control test: parties who qualify as an occupier Determining the answer to the question of who has effective control is really an interpreted as precluding provisions of domestic law on the basis of which, in circumstances such as those in the case in the main proceedings, an insurer can refuse to compensate a victim if he is an insured carried as a passenger in his own vehicle, which he has given a person not covered by the insurance policy permission to drive. It is irrelevant for the purpose of replying to the first question that the insured was or was not aware that the person to whom he gave permission to drive the vehicle was uninsured. The judgment of the ECJ is awaited. Gerard McDermott QC exercise in applying common sense to the evidence. When determining who the occupiers are for the purposes of an occupiers liability claim, you should be aware of the following: Multiple occupiers There can be multiple occupiers of premises at any given time, eg, on a construction site where the main contractor has responsibility for on-site safety and for supervising various subcontractors, and a degree of control over how work is carried out. But where those subcontractors execute the actual work in question, they might be occupiers of those areas on which they are working and temporary structures (such as scaffolding) they erect and use in the performance of their work. Differing duties Where there is more than one occupier, the duties owed by each occupier will not necessarily be identical. Co-existing duties A defendant can have co-existing legal duties under, for example, OLA 1957, relevant health and safety regulations, and at common law (ie in negligence). Short-term occupiers A person can be the occupier of premises in a relatively transient sense, in that they might have 4 Personal Injury Newsletter

5 In practice effective control of premises only for a short period of time. Occupying only part of premises A person can be the occupier of a discrete part of the premises, eg glaziers installing a new front window in a high street solicitors office might be occupiers of the area in which they are working. Applying the control test: parties that do not qualify as occupiers Landlords It has been held that a landlord which lets premises to a tenant gives up control of the property and is not, therefore, an occupier. It seems logical, though, that there would be instances where a particularly interventionist landlord could remain an occupier. Even where a landlord has given up effective control of the premises, it will retain control of any common parts and will therefore be an occupier in respect of those, and it will owe other duties in its capacity as landlord (at common law and under the Defective Premises Act 1972). Vendors A vendor of a house may cease to be an occupier upon conveyance, even if this is not the date on which the purchaser moves in. Highway authorities A highway authority with a statutory obligation to maintain a highway does not, by virtue of that obligation, become an occupier for the purposes of OLA 1957 (Whiting v Hillingdon LBC (1970) 68 LGR 437). Owners of land crossed by rights of way Someone using a public or private right of way is not a visitor, and is owed only the lesser duty under the Occupiers Liability Act (Greenhalgh v BRB [1969] 2 All ER 114; Holden v White [1982] 2 All ER 328). What are premises? Although OLA 1957 governs the liability of those in occupation or control of premises, premises are not defined. It is clear, however, that the term should be interpreted very broadly and includes: any fixed or movable structure, including any vessel, vehicle or aircraft: this includes both permanent and temporary structures such as scaffolding and ladders (OLA 1957, s 1(3)); land itself (so the owner of a park, field or garden will be caught by OLA 1957); railway lines (Videan v British Transport Commission [1963] 2 All ER 860); airport runways (Monarch Airlines v Luton Airport [1998] Lloyd s Rep 403); harbour waters (Carisbrooke Shipping v Bird Port [2005] All ER (D) 59 (Sep). When will a potential claimant be a lawful visitor? In theory, the answer to this question is simple: anyone who enters premises with the actual (ie, express) or implied permission of the occupier is a lawful visitor. Permission, whether actual or implied, sounds like a relatively straightforward concept, and in respect of actual permission it usually is, but this is not always the case. Permission is dependent on a number of factors, including: The part of the premises to which access has been granted Permission can usually be implied in respect of places to which the public have ready and regular access (such as the public areas of a restaurant or shop), but that permission is limited to those public areas, so a shopper who walks off the shop floor and into the stock room will no longer be a lawful visitor. (However, in Gould v McAuliffe [1941] 2 All ER 527 it was held that a customer in a pub not only has implied permission to use the lavatory there, but will also remain a visitor while making a reasonable search for it). Any time limit that has been imposed For example, a legitimate customer in a pub clearly has permission to be present, but if they stay behind after closing time without the publican s consent, they will become a trespasser. (Stone v Taffe [1974] 3 All ER 1016). The occupier s entitlement to revoke the invitation A person who enters premises to speak to the occupier will be a visitor, unless (a) they know they are forbidden, or (b) they have been told to leave. In the latter case, they will have a reasonable period of time in which to vacate the premises, after which they become a trespasser. (Dunster v Abbott [1953] 2 All ER 1572; Robson v Hallett [1967] 2 All ER 407). The visitor s purpose Where a person would normally have permission to enter certain premises, but they decide to enter the same premises with intentions that fall outside the scope for which they are normally granted permission, they will not, in fact, have permission (or be a lawful visitor) under OLA A simple example would be an adult son who has left the family home but is entitled to re-enter it at will (ie, he has actual or implied permission to return). He would, in the general run of things, be a lawful visitor. If he returned to the house with the intention of burgling it, though, he would no longer have permission to be present, and would no longer be a lawful visitor. Similarly, a person can be a visitor if they are using premises for their intended purpose, but a trespasser if they step beyond this. For example, a child who is permitted to use the defendant s lake for canoeing becomes a trespasser when he dives into the lake to swim, knowing he is forbidden from doing so. (R v Jones & Smith [1976] 3 All ER 54; Tomlinson v Congleton BC [2003] 3 All ER 1122). Custom and/or usage For example, permission can be implied where the occupier is aware that members of the public habitually access any given premises/land, but no steps are taken to prevent that use. Where an occupier takes steps to prevent such access, but is unable to do so, those who enter the land despite the occupier s efforts will not generally be considered to be lawful visitors. Rules relating to parkland and the countryside A claimant who is present on premises because they are exercising the right to roam under the Countryside and Rights of Way Act 2000 (or while exercising rights under the National Parks and Access to the Countryside Act 1949) is not a visitor for the purposes of the 1957 Act, but is owed a restricted duty under the Occupiers Liability Act Personal Injury Newsletter 5

6 Case digests Case digests Lane v Shah [2011] All ER (D) 23 (Oct) 5 October 2011 Contempt of court Civil contempt Committal Claimant being responsible for motor accident involving defendants car First defendant being injured and bringing personal injury claim Defendants inflating damages claim by making statements of truth which were deliberate and calculated lies Claimant and his insurers bringing application for committal for contempt of court Whether defendants should be sentenced to term of imprisonment CPR 32. The first and second defendant were husband and wife, the third defendant was their daughter. The first defendant was the passenger in a car driven by the second defendant, which was stationary when the first claimant s vehicle collided with the rear of the defendants vehicle. The first claimant admitted liability. The first defendant, an accountant, issued proceedings for personal injury. The claim for damages was made on a deceitful calculation and several statements of truth for the purpose of the personal injury action were deceitfully signed by all three defendants to falsely inflate the damages claim. The first claimant s insurers, the second claimant, upon investigation found that the claims were false. When confronted the defendants admitted the deceit. CPR 32.14, so far as material, provided that: (1) Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. (2) Proceedings under this rule may be brought only (b) with the permission of the court. When applying for permission to bring contempt of court proceedings, the applicant has the burden of proving contempt to a criminal standard. The claimants applied for the committal of the three defendants for contempt of court. All three defendants were of previous good character. The only issue before the court was the length and severity of sentence. The defendants submitted that if the court were minded to impose a custodial sentence it ought to be suspended, bearing in mind several factors of mitigation, namely that a length of time had elapsed since the contempt had taken place, that it had been over a year since they had admitted the contempt, that none of the defendants had any previous convictions, that all had accepted responsibility for their actions and that all three defendants were in employment and the first and second defendants had a dependant son. The court ruled: Those who make such false claims, if caught, should expect to go to prison. There was no other way to underline the gravity of the conduct. There was no other way to deter those who might be tempted to make such claims, and there was no other way to improve the administration of justice. The public had to be aware that, however easy it was to make false claims, either in relation to liability or in relation to compensation, if found out the consequences for those tempted to do so would be disastrous. They were almost inevitably in the future going to lead to sentences of imprisonment, which would have the knock-on effect that the lives of both those tempted to behave in that way, and of their families, were likely to be ruined. The administration of justice required a prison sentence and there was no question of a suspended sentence. The first claimant would get six months imprisonment, the second and third claimants would get three months each. Bodey v Hall [2011] All ER (D) 149 (Sep); [2011] EWHC 2162 (QB) 5 August 2011 Animal Horse having characteristics not normally found in other horses Horse in pony trap bolting and causing claimant passenger to suffer head injury Claimant bringing action in negligence against defendant owner and driver of pony trap Whether defendant liable Whether claimant contributorily negligent owing to failure to wear riding hat Animals Act 1971, s 2(2). The claimant and defendant were both experienced horsewomen. In November 2005, the claimant and defendant were travelling in a pony and trap, which the defendant owned. The claimant was acting as groom, while the defendant was driving. It was not clear whether the claimant wore a riding hat. The horse became startled and rushed forward, so the claimant and defendant were thrown onto the ground. The claimant sustained a severe head injury. The claimant brought an action against the defendant under the Animals Act 1971, s 2. She contended that s 2(2) of the Act imposed strict liability on the defendant for damage caused by an animal not of a dangerous species. The issue arose as to whether s 2(2) covered not only situations where a normally docile animal acted out of its usual character in particular circumstances or times, but also covered situations where an animal behaved uncharacteristically in a manner characteristic of its species at particular times or in particular circumstances. The issue also arose of whether the claimant could be considered contibutorily negligent. The court had regard as to the lack of a clear rule or guidance as to the wearing of hats among pony trap riders. The claim would be dismissed. (1) To determine whether the requirements of s 2(2)(a) were satisfied, it was necessary to consider the particular circumstances of the case, and not to only consider the horse itself and whether it was likely to cause severe personal injury. The circumstances of this case fell firmly within s 2(2)(a) and (b). The horse s behaviour had not been normal for horses in general, but had been normal for horses in that situation, where there had been an unknown stimulus. (2) The claimant had accepted the invitation to travel as a groom, accepting full responsibility for her exposure to what had taken place. She had been driving with the defendant six or eight times before, knew the horse involved, and appreciated the risk of injury from the trap tilting or tipping when she agreed to act as the groom on the day of the accident. The risk was not of a specifically different nature of that which could have occurred had she been riding that horse. The claimant had fully appreciated the risk she was exposed to while being driven by the defendant in the pony and trap on the day of the accident. 6 Personal Injury Newsletter

7 Case digests (3) On the evidence, especially given that there was no clear rule or guidance among riders of pony traps as to whether it was necessary to wear a riding hat, it was not possible to make a finding of contributory negligence. It appeared to be largely a matter of personal choice as to whether riding hats were worn in such circumstances. Had it been necessary to consider the issue, there would have been no finding of contributory negligence. Lloyd & Co Ltd and others v Hoey [2011] All ER (D) 36 (Sep); [2011] EWCA Civ September 2011 Personal injuries Limitation of action When time begins to run Claimant suffering from chest pains from 1984 Claimant not aware that he had suffered significant injury until 2008 Claimant commencing proceedings in 2010 against former employees in respect of damages for exposure to asbestos Whether action time-barred Limitation Act 1980, ss 11, 14. The claimant was a 79-year old man who was employed by the five defendant companies in various capacities between 1947 and In the course of those employments he was exposed on many occasions to asbestos. The claimant first developed chest pains in 1984 or 1985 and went to see his GP, who referred him to a chest clinic at a hospital in Wirral. Medical records showed that between 1984 and 1987, several possible causes were considered and eliminated, and a number of chest X-rays were taken in the course of eliminating the various suspected diagnoses. Pleural thickening was noted on certain X-rays during the period 1985 to However, that had not been suspected as being a cause of the chest pain. After September 1985, the claimant s condition generally improved. In September 1987, the claimant was discharged from the chest clinic. The claimant continued to work until he was 60. In 1992, the claimant was having difficulty breathing and he retired on the grounds of ill health. Over the years that followed, the claimant s breathing difficulties increased. In August 2007, the claimant was again referred to the chest clinic. He was seen by a doctor in the respiratory clinic (S), who arranged a chest X-ray, a CT scan and an MRI scan. Her diagnosis, as set out in a letter dated 17 December 2008, stated that: His full lung studies reflect the co-existence of COPD and pulmonary fibrosis. She further advised the claimant that he could make a claim in respect of his disability. The claimant instructed solicitors who obtained medical reports from another consultant physician (L), who diagnosed the claimant as suffering from various conditions. He advised that the calcified pleural plaques and the pleural thickening might have been caused by exposure to asbestos. He added that that condition (although less advanced) would have caused the claimant s chest pain in the mid 1980 s. Armed with that professional advice, the claimant commenced these proceedings on 13 August 2010, seeking damages for personal injury against the first to fifth defendants, as his former employers. The defendants denied liability and asserted that the claimant s claim was statutebarred. It was directed that limitation be tried as a preliminary issue. The judge decided that the claimant s claim was for disabling pleural thickening, the first symptoms of which became manifest in 1985 or Accordingly, the claimant s cause of action accrued in 1985 or It followed that the limitation period pursuant to s 11(4) of the Limitation Act 1980 (LA 1980) had expired by However, the judge took the view that the claimant did not know in 1985 or 1986 that he had an injury which was significant. He did not learn that until S advised him of the outcome of her investigations in Therefore the proceedings had been commenced within three years of the date of knowledge as defined in LA 1980, s 14(1). The judge gave judgment for the claimant on the limitation issue. He then gave directions for an early trial in respect of the outstanding liability and quantum issues. The defendants appealed to the Court of Appeal. The defendants contended that on the evidence before the judge, he had been obliged to conclude that the date of knowledge had occurred in It was the defendants case that in parts of his judgment the judge had elided two separate questions, namely (a) whether the claimant had known in that he had an injury which had been significant; and (b) whether the claimant had known in that his injury had been attributable to exposure to asbestos. It fell to be determined whether the judge had erred in law in holding that the claimant had commenced proceedings within three years of the date of knowledge pursuant to LA 1980, s 11(4)(b). The appeal would be dismissed. It was settled law that the date of knowledge which started the limitation clock ticking was, essentially, the date on which the claimant knew that his injury (a) was significant, and (b) was attributable to the allegedly negligent act or omission. The test for what constituted a significant injury was set out in LA 1980, s 14(2). The material to which that test applied was generally subjective in the sense that it was applied to what the claimant knew of his injury rather than the injury as it actually had been. Even then, his knowledge might have to be supplemented with imputed objective knowledge under s 14(3). However, the test itself was an impersonal standard: not whether the claimant would have considered the injury sufficiently serious to justify proceedings, but whether he would reasonably have done so. In those circumstances it was settled law that: You ask what the claimant had known about the injury he had suffered, you add any knowledge about the injury which may be imputed to him under s 14(3) and you then ask whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment. What the claimant had suffered during the mid-80s had been a transient bout of chest pain. He had not known he had suffered significant injury until Consequently, he had commenced this action within three years of his date of knowledge. In those circumstances, the question of attributability did not arise. Applying s 14(1)(b), it could not be seen how the claimant could be fixed with knowledge in the 1980s that his injury (namely pleural thickening) had been caused by exposure to asbestos. On the basis of the claimant s evidence, the claimant s only knowledge had been that if he had developed mesothelioma (which he had not), then that condition would be attributable to exposure to asbestos. The judge s conclusion on the limitation issue had been correct. Personal Injury Newsletter 7

8 Legislation Legislation update National Health Service (Travelling Expenses and Remission of Charges) (Wales) (Amendment) (No 2) Regulations 2011 Staffordshire and Stoke on Trent Partnership National Health Service Trust (Establishment) Order 2011 Grant for Research and Development (Transfer of Contracts etc) Order 2011 Health and Personal Social Services (General Medical Services Contracts) (Prescription of Drugs Etc) (Amendment) Regulations (Northern Ireland) 2011 Enactment Citation SI 2011/1940 Commencement Date 1 September 2011 Legislation Affected SI 2007/1104 amended Enabling Power National Health Service (Wales) Act 2006, ss , 203(9), (10) Enactment Citation SI 2011/2007 Commencement Date 1 September 2011 Enabling Power National Health Service Act 2006, ss 25(1), 272(7), Sch 4, para 5 Enactment Citation SI 2011/1953 Commencement Date 2 August 2011 Enabling Power Science and Technology Act 1965, s 3(6) Enactment Citation SR 2011/327 Commencement Date 13 October 2011 Enabling Power Health and Personal Social Services (Northern Ireland) Order 1972, arts 57D, 106(b) Amend the National Health Service (Travel Expenses and Remission of Charges) (Wales) Regulations 2007, SI 2007/1104 and revoke the National Health Service (Travelling Expenses and Remission of Charges) (Wales) (Amendment) (No 2) Regulations 2010, 2010/2759. Update references to student funding that set out the entitlement to grants and loans available to students in Wales. Certain amounts of student maintenance grants are disregarded in calculating the entitlement of students to the payment of travel expenses and the remission of charges. Establishes a National Health Service trust called the Staffordshire and Stoke on Trent Partnership National Health Service Trust. Sets out: the functions of the trust; the number of executive and non-executive directors of the trust; the date on which the trust assumes all its functions; and the accounting date of the trust. Completes the transfer of responsibility for the delivery of certain functions from the Regional Development Agencies to the Technology Strategy Board (TSB) by moving the property, rights, liabilities and obligations on to the TSB, although some material relating to closed grants will remain with the secretary of state for archiving purposes. Amend the Health and Personal Social Services (General Medical Services Contracts) (Prescription of Drugs Etc) Regulations 2004, SR 2004/142, by substituting a new schedule. The description of persons in respect of which the drugs Oseltamivir and Zanamivir may be ordered is widened to include those who are under 65-years of age, who are not pregnant, nor considered to be at clinical risk, but who are considered to be at risk of developing complications from the symptoms of infl uenza. Also removes certain drugs, medicines and other substances which are no longer required to be listed. SUBSCRIBE TO BUTTERWORTHS PERSONAL INJURY NEWSLETTER BY FILLING IN THIS FORM 2 My Delivery Details *Required Fields *Title: *Name: *Surname: *Job Title: *Company: *Address 1: *Address 2: *Town: *Postcode: Telephone: 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) Please quote response code AD8345 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 onto 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: 8 Personal Injury Newsletter

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