DOLMANS INSURANCE BULLETIN

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1 DOLMANS INSURANCE BULLETIN Welcome to the April 2012 edition of the Dolmans Insurance Bulletin REPORT ON In this issue we cover: The cost of conduct - Caerphilly County Borough Council v Crayhart Further success in HAVS claims - Walters v Rhondda Cynon Taf County Borough Council FOCUS ON Supreme Court finally brings clarity to the question of the identity of relevant employers liability insurers in mesothelioma claims - employers liability insurance trigger litigation - BAI (Run Off) Limited (in scheme of arrangement) v Durham & Others [ ] CASE UPDATE Autistic Claimant succeeds in claim for damages against the Commissioner of Police for the Metropolis Costs Highways Act sections 41 and 58 Nuisance Service of sealed Claim Form COMING UP Training opportunities : details on tailor-made training seminars aimed at Local Authorities, their Brokers, Claims Handlers and Insurers Employment briefing and workshops : overview on employment briefings and half day workshops A DATE FOR YOUR DIARIES Dolmans Defendant Litigation Team s ever popular Key Note Seminar will be held on Thursday, 14 June 2012 at the Vale of Glamorgan Hotel. Full details regarding this seminar will be forthcoming shortly. If there are any items you would like us to examine, or if you would like to include a comment on these pages, please the editor, Justin Harris, Partner, at [email protected] 1

2 DOLMANS REPORT ON THE COST OF CONDUCT Caerphilly County Borough Council v Crayhart Dolmans has successfully represented Caerphilly County Borough Council in a High Court Appeal of the Costs Order made following the Fast Track Trial of the Claimant s claim. The Facts The Claimant was employed by the Council as a Fair Trading Officer. On 22 August 2007, the Claimant alleged that a plastic lighting panel had fallen onto her head as she was descending some stairs whilst at work. The Claimant sought damages for a head injury, a jotting injury to her cervical spine and a minor cut to her left wrist. The Claimant served medical evidence from a Consultant Orthopaedic Surgeon who was of the opinion that the Claimant had suffered a soft tissue injury to her cervical spine of the type which would normally be expected to resolve within approximately 2 years from the date of the accident. As the Claimant had not recovered within that time period, the Expert felt the Claimant was likely to continue having permanent symptoms, albeit those symptoms would diminish slightly with the passage of time. The Claimant filed and served a Schedule of Loss which included a claim for care in the sum of 1,070.60, representing a 2 month period following the accident when the Claimant alleged she was absent from work. The Claimant's case, thus, had a realistic value of in the region of 9, given the permanent nature of the orthopaedic symptoms attributed to the accident and the claim for care claim. On instructions from the Council, Dolmans put the Claimant to strict proof as to the extent of her injuries and sought to persuade the Court that the Claimant had, in fact, not suffered the neck injury she contended for. 2

3 DOLMANS REPORT ON Questions were raised of the Claimant s Expert who had based his findings upon information provided to him by the Claimant which was not accurate. The Claimant had told her Expert that she had attended upon her GP 2 weeks following the accident, that she saw her GP on several occasions and that she was absent from work for approximately 2 months. In fact, there was no mention of a head or neck injury in the Accident Report completed in the aftermath of the accident, that the Claimant's first attendance upon her GP was one month after the accident, whereupon no reference to a head or neck injury was made, there was no mention of a head or neck injury in subsequent attendances and, finally, the Claimant was not, in fact, absent from work for 2 months at all. Despite putting this evidence to the Expert, he was not prepared to change his substantive view. Dolmans made an Application on behalf of the Council for the Medical Expert to attend Court to give oral evidence. This Application was refused by the Court. The Council opted to pursue the claim to Trial and to invite the Court to depart from the expert medical evidence based upon the inconsistent evidence provided to the Medical Expert by the Claimant. Mr Recorder Treverton-Jones QC heard the case. He found that the Claimant was not a reliable historian and was not a reliable witness. The Recorder was further satisfied that the Medical Expert had been given an inaccurate impression that the impact from the lighting panel was greater than in fact it was, that the panel had fallen from further than it actually had, that the Claimant had not immediately presented to her GP and that the Claimant did not take 2 months off work as a result of the alleged neck injury. In addition, the Claimant withdrew her claim for care at the door of the Court. The Recorder found the claim for care was manifestly unsustainable given that the Claimant remained in work. The Recorder was not satisfied, on the balance of probabilities, that the Claimant suffered any significant neck injury as a result of the accident and did not award the Claimant any damages for it. The Court made it clear that there was no finding that the Claimant had deliberately lied. 3

4 DOLMANS REPORT ON The Claimant was awarded to reflect the balance of the Claimant's minor injuries. Costs The Recorder summarily assessed the Claimant s costs and then made a reduction of 15% to take account of the fact that the Claimant did advance and, at the very last minute, abandon a wholly unsustainable claim for care. The Recorder did not make any reduction to reflect the fact that the Claimant had been wholly unsuccessful in recovering for the main injury in this case, namely the neck injury. The Recorder felt the Council could have protected itself by making a Part 36 offer. Appeal to the High Court Permission to appeal in the High Court was granted by Mr Justice Lloyd-Jones and the Appeal was heard before Mr Justice Beatson sitting in the High Court at Cardiff Civil Justice Centre. On Appeal, we argued that the Recorder had not taken into account that the only real issue in the case was whether the Claimant had suffered a whiplash type injury to her neck, and had not taken into account the Claimant s conduct in reporting her symptoms to the Medical Expert and to the Court in a manner which was not wholly accurate. Mr Justice Beatson found that the starting point was that the Claimant had recovered more than the Defendant was prepared to pay and was, therefore, to be regarded by analogy to be the successful party. The second question was whether there should have been an adjustment to take account of the circumstances. Having found the Recorder had correctly identified the Claimant as the winning party, Mr Justice Beatson found the Recorder then had a broad discretion to take into account other factors when deciding upon any deduction to the Claimant s costs. 4

5 DOLMANS REPORT ON Mr Justice Beatson found that the Recorder did fall into error by failing to take into account the Claimant's conduct in the way she presented the facts to both the Medical Expert and the Court. The Claimant's presentation was seriously misleading. Mr Justice Beatson substituted the costs reduction made by the Recorder of 15% for a deduction of 30% and awarded the Council their costs of the appeal. Comment This decision emphasises that the Court has a broad discretion when it comes to assessing the conduct of the parties and the award of costs to be made. The decision is also important because the High Court has recognised that conduct falling short of lying can be conduct which is sufficient for the Court to consider when deciding to make a reduction to the Claimant s costs. Overall, defeating the Claimant s claim for a head and neck injury when the medical evidence supported it was quite an achievement. Obtaining a Costs Order which reflected the Claimant's poor conduct in the case where she was not found to be lying was a further victory for the Council. Paul Veysey Partner Dolmans Solicitors For further information regarding this article, please contact Paul Veysey at [email protected] or visit our website at 5

6 DOLMANS REPORT ON FURTHER SUCCESS IN HAVS CLAIMS Walters v Rhondda Cynon Taf County Borough Council In Martyn Walters v Rhondda Cynon Taf County Borough Council, the Claimant alleged in his Particulars of Claim that during the course of his employment by the Defendant Local Authority as a stonemason from 1968 to 1994, he was exposed to foreseeably injurious levels of vibration transmitted through the hands causing Hand/Arm Vibration Syndrome ( HAVS ). The Claimant s Solicitors (Wixted & Co) letter of claim was sent on 19 March 2010 and proceedings were issued on 1 November After proceedings were issued, the Claimant made a Part 36 offer to settle his claim in the sum of 6, (plus costs). The Claimant was originally employed by Rhondda Borough Council ( RBC ) and his employment transferred to Mid Glamorgan County Council ( MGCC ) on Local Government Reorganisation on 1 April The Claimant was originally employed from 22 April 1968 as an apprentice stonemason and stonemason. The Claimant was appointed highways superintendent on 17 December 1984 and, on his own evidence, he was only rarely exposed to vibration from that time. The Claimant retired on ill-health grounds on 8 June 1993 (having ceased work on 25 September 1992) and subsequently became a self-employed driving instructor. The Defendant was the successor Authority to MGCC and by extension to RBC, though it had never itself employed the Claimant. The Claimant, in his Further Information, alleged that he was exposed to the daily use of (i) a jackhammer for between 2 and 6 hours a day; (ii) a Wacker (vibrating) plate for an average of 20 to 30 minutes a day; and (iii) a Stihl (road) saw for 30 minutes to 2 hours a day. The Claimant also alleged that he used vibrating pokers 3 to 4 times a month for 30 minutes to 2 hours, disc cutters 1 to 2 times a month for 15 minutes and vibrating rollers 2 to 3 times a week for 30 minutes to 2 hours. 6

7 DOLMANS REPORT ON Due to the passage of time, the Defendant was unable to adduce any evidence to gainsay the Claimant s allegations of exposure and systems of work. As a consequence, the Defendant made a limited admission that the levels of alleged exposure would have been potentially injurious and foreseeably so from 1 January Because of the limited admission, the Court ruled that engineering evidence was not necessary and two successive applications by the Claimant for permission to adduce such evidence were dismissed 2. On his own case, the Claimant s symptoms appeared in the early/mid 1980 s. In evidence, the Claimant stated that since 1985, his symptoms had neither worsened nor improved. The Claimant relied on a Medical Report of Mrs Sandy Shiralkar, Consultant Vascular/General Surgeon, dated 7 August Mrs Shiralkar was of the opinion that the Claimant was suffering from HAVS on the Stockholm Workshop Scale as 1V vasospasm and 1SN for sensorineural. The Defendant relied on the expert Medical Report of Dr Roger A Cooke, Consultant Occupational Physician, dated 13 August Dr Cooke agreed that the Claimant s description of his symptoms to Mrs Shiralkar was typical of HAVS. However, the Claimant had given a different description of the distribution of his symptoms to Dr Cooke and Dr Cooke did not consider that he was suffering from HAVS. The Trial of the Claimant s claim took place over two days in the Cardiff County Court commencing on 15 February The matter came before Mr Recorder Robert Craven. 1 Our more recent experience is that some experts might be prepared to accept that date of knowledge for the class of employers into which the Defendant falls (ie - Local Authorities) is 1987, even for the use of heavy vibrating tools such as jackhammers. 2 The Claimant had obtained on a unilateral basis an expert engineering report from Professor Michael Griffin, who gave evidence on what the Defendant had already admitted, ie - that the exposure as alleged would have been injurious and foreseeably so following publication of the Draft for Development - Guide to the evaluation of exposure of the human hand-arm system to vibration (1975) BSI 43 ( DD43 ) in

8 DOLMANS REPORT ON Under cross-examination, the Claimant sought to reconcile the differences between his descriptions to each expert which resulted in a third description of the distribution of symptoms. Altogether, throughout the course of the evidence, approximately six different descriptions of the distribution of symptoms were identified. The Claimant conceded that he knew that miners had made claims for hand symptoms in the 1980s and that such claims had arisen from the use of pneumatic tools. Mr Andrew Gough, Insurance Manager, gave evidence for the Defendant that many documents, including the personnel file, occupational health records and other records, were probably destroyed on Local Government Reorganisation in Wales on 1 April 1996 and that potential witnesses could not be traced. Under cross-examination, Mrs Shiralkar agreed that strict adherence to the Stockholm Workshop criteria was necessary 3. Mrs Shiralkar had not been present in Court to hear the Claimant give his evidence (a fact commented on by the Trial Judge). Mrs Shiralkar agreed that the Claimant s description of the distribution of his symptoms ought to be consistently reported though some variation was permitted and she came close to withdrawing her diagnosis of HAVS. Dismissing the Claimant s claim, in a Reserved Judgment delivered on 17 February 2012, the Judge made the following findings: Limitation The Claimant s claim was statute barred by virtue of sections 11 and 14 of the Limitation Act The Claimant s hand symptoms were significant by 1 January The Claimant should have appreciated that his symptoms were not temporary and should have sought advice by 1 January 1987; on which basis he would have had constructive knowledge that his symptoms were attributable to his workplace use of vibrating tools and proceedings ought to have been brought within 3 years of that date (ie - by 1 January 1990). The section 33 discretion to allow the claim to proceed would not be exercised in the Claimant s favour. The Defendant had destroyed documents, probably in 1996, and witnesses could not be traced. In addition, the medical diagnosis had been made more complicated by the intervening effects of diabetes and medication to treat high cholesterol levels. The Defendant was prejudiced by the Claimant s unexplained nearly 21 year delay in bringing proceedings. 3 Gemne G et al, The Stockholm Workshop scale for the classification of cold-induced Reynaud's phenomenon in the hand-arm vibration syndrome (revision of the Taylor-Pelmear scale) (1987) Scand. J. Work Environ. Health 13, pp

9 DOLMANS REPORT ON Medical Causation The three stage test for determining medical causation in HAVS cases had been indicated by the Court of Appeal in Montracon Ltd v Whalley (2005) EWCA Civ The first stage, had there been sufficient vibration to cause HAVS, was met. The second stage, are the symptoms described consistent with a diagnosis of HAVS, had not been met. The Claimant s evidence was undeniably unsatisfactory as his evidence was inconsistent and exaggerated and went beyond what the Trial Judge was prepared to allow for a lay person s difficulty in describing symptoms 4. Had the Claimant s claim succeeded, the value of quantum had been agreed at 5, As aforementioned, the claim was dismissed and costs (including CCFA costs) were awarded to the Defendants. Comment Each case turns on its own facts. However, trends can sometimes be identified. The present matter is the third claim 5 that we have handled to, or close to, Trial where the Claimant has instructed Wixted & Co. Ltd to pursue a claim and where Mrs Shiralkar has provided a favourable opinion on a description strongly consistent with a diagnosis of HAVS and where an inconsistent description was subsequently provided to Dr Cooke. Mr Peter Pelmear has stated that abnormal results should always be suspect in compensation cases and examining physicians must avoid being deceived by the apparent good correlation with severity against the Stockholm sensorineural scale in Claimants. It would be surprising if it were otherwise, since many Claimants may have been briefed beforehand by others to produce a favourable response. Subjective testing on separate occasions to assess repeatability may improve the validity, but this is not always feasible 6. 4 The third stage, was there any other explanation for the symptoms, was not reached. 5 See also Geoffrey Tidey v Blaenau Gwent County Borough Council (dismissed on 4 January 2012) and David Jason Williams v Newport City Council (discontinued on 19 January 2012, just 4 working days before Trial). 6 Pelmear PL, The clinical assessment of hand arm vibration syndrome (2003) Occup. Med. (London) 53(5), pp (at p.339). 9

10 DOLMANS REPORT ON This observation is clearly apposite in relation to these matters and it is probably no coincidence that limitation was also a significant issue in each case. The result in this case further underlines the following issues, some of which have previously been highlighted in this publication but warrant further emphasis:- A forensic approach to medical diagnosis in HAVS cases is increasingly finding favour, at least in the local Courts in South Wales. Such an approach favours the meticulous methodology of experts such as Dr Cooke. An expert in a HAVS case who does not have the opportunity of hearing the Claimant s evidence is potentially at an immediate disadvantage, particularly in cases where reliability of diagnosis depends upon a particular account provided on a particular occasion. Date of Knowledge, particularly for public sector organisations, is not to be assumed to be consistent with Armstrong & Others v NCB (ie ), but is potentially likely, dependent upon the facts, to be much later. Limitation is increasingly worthy of detailed consideration in HAVS cases, particularly given the attention which the condition has received over past years. Claimants who delay making their claim are likely to be penalised, provided evidence of prejudice can be obtained. Jamie Mitchell Associate Dolmans Solicitors For further information regarding this article, please contact Jamie Mitchell at [email protected] or visit our website at 10

11 DOLMANS FOCUS ON SUPREME COURT FINALLY BRINGS CLARITY TO THE QUESTION OF THE IDENTITY OF RELEVANT EMPLOYERS LIABIITY INSURERS IN MESOTHELIOMA CLAIMS - EMPLOYERS LIABILITY INSURANCE TRIGGER LITIGATION BAI (Run Off) Limited (In Scheme of Arrangement) v Durham & Others [ ] Summary The Supreme Court has held (by 4 to 1 majority, Lord Phillips dissenting in part) that the relevant trigger point in respect of an Employers Liability policy of insurance in regard to subsequent claims for mesothelioma is the date/time when inhalation of asbestos (in breach of duty) took place, not any later date, such as the point in time (if the same can be identified with sufficient precision) when the disease first became established within the victim s body. Accordingly, the relevant policy of insurance (and by logical extension, insurer) for the purposes of EL mesothelioma claims is the policy of insurance in place at the point when negligent exposure to asbestos dust took place. Background Readers of the Dolmans Insurance Bulletin will be aware that the genesis of this litigation arose out of the public liability case of Bolton MBC v Municipal Mutual Insurance and Commercial Union Insurance. In that case, it was found that the relevant policy of insurance in relation to a public liability mesothelioma claim was the policy on risk at a point in time 10 years prior to the manifestation of physical symptoms, rather than the policy on risk at the point in time when asbestos exposure took place. This is upon the basis that PL policies of insurance are conventionally written on a claims arising rather than a claims caused basis. There has been some debate within the insurance industry since the Bolton decision, but the broad industry practice still adheres to this approach in the context of public liability mesothelioma claims (but see below). Following the decision in Bolton, a number of employers liability insurers (including BAI and MMI) began to decline cover in respect of mesothelioma claims upon the basis that their policy wordings were identical or identical in effect to the policy wording utilised in Bolton. In essence, these insurers contended that their policy wordings precluded them from providing cover in relation to mesothelioma claims because the condition in question did not arise within their period of cover, rather it arose many years later. 11

12 DOLMANS FOCUS ON This reliance upon strict interpretation of policy wordings was in contrast to historical insurance industry practice in relation to the handling of EL mesothelioma claims whereby the convention was that the insurer on risk at the time of exposure dealt with the claim, regardless of the time interval between exposure and manifestation of the disease. That said, the prevalence of mesothelioma claims, until recent years, has been reasonably low. First Instance Decision The matter was dealt with at first instance by Mr Justice Burton who, having heard significant evidence both in relation to the aetiology of the disease and with regard to historical industry practice in relation to the approach taken in respect of mesothelioma claims (see above), concluded that the relevant policy of insurance in respect of mesothelioma claims was the policy of insurance on risk at the point of asbestos exposure as opposed to any later date. This decision was based, in large part, upon the historical industry practice of the wider insurance industry in relation to mesothelioma claims generally. Inevitably, given the number of potential claims affected by this issue (however, it was ultimately resolved), the matter proceeded to the Court of Appeal. Court of Appeal In the Court of Appeal, there was significant disagreement between the three Lord Justices (Lord Justice Rix, Lord Justice Stanley Burnton and Lady Justice Smith). We reported on the Court of Appeal decision in relation to this case in the October 2010 edition of the Dolmans Insurance Bulletin 1 and, at that time, commented upon the lack of unanimity in relation to a number of aspects dealt with in the Court of Appeal. Lady Justice Smith (dissenting) upheld the findings of Mr Justice Burton, holding that the relevant policy of insurance was the policy of insurance at the point of inhalation of asbestos. Her rationale in relation to these findings was, in large part, also based upon the historic industry approach to mesothelioma claims (see above), but also by reference to understandable concerns that certain Claimants would be left without compensation in relation to cases where exposure took place in respect of now defunct employers who could no longer rely upon "later insurers" if the relevant interpretation depended upon the use of such later policies of insurance. 1 A back copy of which can be obtained by ing the Writer at [email protected] 12

13 DOLMANS FOCUS ON However, in the Court of Appeal, Lady Justice Smith was in the minority. Lord Justice Rix and Lord Justice Stanley Burnton both held, upon the basis of the proper construction of the relevant policy wordings, that in regard to certain policy wordings (in particular so-called condition sustained policy wordings) the relevant policy of insurance was not the policy in place at the point of asbestos exposure but, rather, would be a later policy of insurance, assuming the wording of that policy allowed it to indemnify the employer. In the context of other policy wordings (in particular so-called condition sustained or contracted policy wordings), their Lordships concluded that such policy wordings did operate to trigger policy indemnity by reference to the period when asbestos exposure actually took place. In practical terms, with regard to the public sector (who were invariably insured at the relevant time by the former Municipal Mutual Insurance who were one of the insurers seeking clarification of the relevant policy wording), this meant that policies in force prior to 1974 would not answer in relation to mesothelioma claims made at the present time. In contrast, policies in force after 1974 would provide cover to the public sector organisation in question. Supreme Court Given the lack of clarity achieved by the Court of Appeal Judgments, the matter then proceeded before the Supreme Court in December The Opinion of the Supreme Court Justices was formally handed down on 28 March In the Supreme Court, the matter came before Lord Phillips SCJ, Lord Mance SCJ, Lord Kerr SCJ, Lord Clarke SCJ and Lord Dyson SCJ. Lord Mance provided the leading opinion of the Supreme Court and held that there is no difficulty in treating the word contracted as looking to the causation of a disease, rather than its development or manifestation. The word contracted used in conjunction with disease looks to the initiating or causative factor of the disease. While the word sustained may initially appear to refer to the manifestation of an injury, the nature and underlying purpose of the EL insurances is one which looks to the initiation or causation of the accident or disease which injured the employee. Accordingly, a disease may properly be said to have been sustained by an employee in the period when it was caused or initiated, even though it only developed or manifested itself later. 13

14 DOLMANS FOCUS ON In relation to the second issue, the question is whether the EL policies cover employers liability for mesothelioma arising under the special rule in Fairchild/Barker. Under that rule, the law accepts a weak or broad causal link between the employer s negligence and the employee s mesothelioma. When construing the EL policies, the concept of a disease being caused during the policy period must be interpreted sufficiently flexibly to embrace the role assigned to exposure by the Fairchild/Barker rule (NB: Lord Phillips dissented on this point see below). The purpose of the EL policies (specifically, but not exclusively by reference to the Employers Liability (Compulsory Insurance) Act) was to insure the employers against liability to their employees. Once it is held that the employers are liable to the employees, it would be remarkable if the insurers were not liable under the policies. Accordingly, for the purposes of the EL policies, the negligent exposure of an employee to asbestos during the policy period has a sufficient causal link with subsequently arising mesothelioma to trigger the insurer s obligation to indemnify the employer. Lord Phillips dissented in part, specifically, on the second issue with regard to the influence/ importance of the Fairchild/Barker rule in the context of EL policies of insurance. His view was that the special approach developed in Fairchild/Barker raises no implication or fictional assumption as to when mesothelioma is initiated. The consequence is that if Claimants have to show that mesothelioma was initiated in a particular policy year in order to establish that insurers are liable they are unable to do so. Comment This Judgment has finally brought clarity in relation to an issue which has caused difficulty in mesothelioma litigation for the last 5 years. It is now clear that the relevant insurer in respect of an EL mesothelioma claim is the insurer on risk at the point of negligent exposure to asbestos dust/fibre. Even though the condition of mesothelioma has such an aetiology that it does not arise until decades later, the relevant trigger point (in chronological terms) is the point in time when exposure to asbestos took place (NB: in breach of duty). Despite the reservations expressed in previous articles and below with regard to how this interpretation sits with decisions concerning the causative potency of such exposure (see in particular Rothwell), such a touch stone as to the triggering of policy coverage has much logic and pragmatism to recommend it. 14

15 DOLMANS FOCUS ON Although there was some hope that the Judgment would also address the issue of the 10 year rule in PL mesothelioma claims, this aspect has been left for another day, and given the support to be derived for a possible reduction in this period to actually one of 5 years (consistent with the more detailed analysis of medical opinion considered by Burton J), it may be the case that further litigation on this point is required. The effect of Lord Phillips dissenting Judgment on the causation issue would be to render mesothelioma claims not covered by any insurance and it is to be noted, with relief, that this was the minority view, interesting though it is. The potential problem of causative potency in terms of inhalation of asbestos fibres (which, of itself, cannot be regarded as injurious see our previous comments in the October 2010 Dolmans Insurance Bulletin with specific reference to Rothwell) has been neatly circumvented by the conceptual approach taken in terms of the consideration of the purpose of EL cover. The jurisprudential problems created by the aetiology of the condition of mesothelioma continue to necessitate the creation of a unique branch of the law. Fairchild was necessary to enable Claimants to circumvent the problems presented by the usual but for test. Barker established (albeit temporarily) that the concept of material increase of risk (established by Fairchild) could be subject to analysis and measurement and, therefore, could form the basis of rational apportionment. EL Triggers now establishes that the relevant insurance policy is resolved by a wider purposive examination of the policy itself, rather than the construction of its terms in the usual sense. The relevant insurer is the insurer on risk when exposure to asbestos in breach of duty took place. In a situation with potentially differing exposure histories (some culpable, some not culpable), the relevant insurer(s) may require more detailed consideration to identify; particularly following recent decisions on breach of duty/knowledge in the context of mesothelioma (see Asmussen v Filtrona (UK) Limited and Williams (Deceased) v University of Birmingham). For further information regarding this article, please contact Peter Bennett at [email protected] or visit our website at Peter Bennett Partner Dolmans Solicitors 15

16 DOLMANS RECENT CASE UPDATE Autistic Claimant Succeeds in Claim for Damages against the Commissioner of Police for the Metropolis ZH (by his Father and Litigation Friend, GH) v Commissioner of Police for the Metropolis [2012] EWHC 604 (QB) ZH, a severely autistic and epileptic 16 year old boy, had become fixated with the water in a swimming pool and refused to move from the edge when asked to do so. His carers believed that ZH would react adversely if he was touched so attempted to try and distract him with food and drink. The Police were subsequently called and whilst they were advised by the carers that ZH was autistic, they did not consult with the carers further before touching ZH. ZH jumped into the water. During the time ZH was in the water, the Police did not consult further with his carers. ZH was forcibly removed from the swimming pool and was restrained with handcuffs and leg restraints before being placed in the rear of a Police van. A carer was able to calm ZH down and he was released by the Police. The Claimant suffered psychological trauma as a result of the experience and exacerbation of his epileptic seizures. The claims for assault and battery were subject to the Mental Capacity Act Once force was used upon ZH, the burden was on the Defendant to establish a lawful basis for the use of such force and imprisonment. To achieve this, the Defendant had to demonstrate that the Officers complied with the relevant provisions of the Mental Capacity Act. The Court found that the Police had failed to establish that they reasonably believed it was in ZH s best interests to remove him from the pool in the way that they did. Consequently, their actions constituted assault, battery and false imprisonment. There had also been a breach of Article 3 ECHR when the duration of the force and restrain, injury sustained and age, health and vulnerability of ZH was considered. The nature and duration of the restrain was also a deprivation of liberty under Article 5. Further, the interference with ZH s private life was not proportionate under Article 8. ZH was awarded 28,

17 DOLMANS RECENT CASE UPDATE Costs (1) Peter Hutchinson (2) Susan Penning v (1) Michael Neale (2) Ann Neale [2012] EWCA Civ 345 CA (Civ Div) The Appellants (Hutchinson and Penning) appealed against a Costs Order against them after successfully defending a boundary dispute claim brought by the Respondents (Mr and Mrs Neale). Whilst being successful in the claim, the Judge had found that they had acted dishonestly in defending the action by altering a photocopy of a plan so that it supported their case. The Appellants had made several offers of settlement prior to Trial in reliance on the altered plan, which had been rejected. The Judge found that on the basis of the Appellants conduct, there was no Order for costs between the Parties, except that the Appellants were to pay:- (i) two thirds of the Respondent s costs on the standard basis in relation to Counsel s fees and Solicitor s attendance costs at a first Trial (which had been adjourned for personal reasons relating to the Appellants); (ii) the Respondents costs on an indemnity basis occasioned by their tampering with the plan at the second Trial, and; (iii) the costs occasioned by the Appellants assertion that an informal boundary had been agreed with the Respondents, again on an indemnity basis. The Appellants appealed the Costs Order, submitting that the Judge had incorrectly failed to take as his starting point the general rule under CPR r.44.3(2)(a), ie - that an Order for costs would be made in favour of the successful party. It was further argued that they should have been awarded all their costs on the standard basis following the Respondents failure to accept offers more generous than the Judge's Order. 17

18 DOLMANS RECENT CASE UPDATE The Court of Appeal agreed that the starting point for any Order for costs was that costs should follow the event. There was no general rule that a finding of dishonest conduct by the successful party would replace the usual starting point. An evaluation of the nature and degree of the misconduct and its effect on the issues in the Trial was required in relevance to and effect upon the issues in the Trial and its tendency to create an unwarranted increase in the costs of the action to either or both Parties. Accordingly, the Judge's starting point should have been an Order for costs in the Appellants favour, subject to adjustments to ensure they did not recover any costs. The Costs Order was amended accordingly. In relation to the Appellants pre - Trial offers, as these did not comply with CPR r.36.2(2)(c), these were afforded little weight, in particular, as the Appellants had failed to acknowledge their dishonesty so that it would be wrong for them to benefit from the Respondents refusal to settle. Highways Act Sections 41 and 58 (1) AC (2) DC (3) TR v Devon County Council [2012] EWHC 796 (QB) TR was overtaking a slow moving vehicle on a rural road, when as he did so, his offside wheels dropped into a long defect/rut or series of potholes at the edge of the carriageway. He attempted to steer left out of the defect, but lost control of the vehicle, swerving across the road, colliding with trees on his nearside. As a result of the collision, one of his passengers was rendered tetraplegic, whilst another passenger suffered brain injuries and multiple skeletal injuries. TR settled both the passengers claims, but brought an action for an indemnity/contribution (pursuant to CPR Part 20) against the Highway Authority on the basis that he would not have lost control of his vehicle but for the defect, alleging that it had breached its duty under section 41 of the Highways Act

19 DOLMANS RECENT CASE UPDATE TR submitted that the defect in the road constituted a danger to road users. The Local Authority argued that the condition of the road was not a danger to traffic, but that if it was, it had a defence under section 58 on the basis that it took such care as in all the circumstances was reasonably required to ensure that the road was not dangerous to traffic. The Court made the following findings:- (1) Where an accident resulted from a dangerous state of a stretch of road rather than a particular spot on the road, it was material to consider whether the condition of the stretch of road was dangerous, and whether that dangerous condition was created by the failure to maintain or repair the highway (unlike a pavement tripping claim where it is the precise location of the accident that must be considered dangerous for a claim to be made out (James v Preseli). (2) Whilst a Highway Authority can depart from the Department of Transport's Code of Practice for Maintenance Management (the Code ) in relation to inspection frequency, it must be able to justify any such departure if it is to make out its section 58 defence. Here, the Code recommended monthly inspections for the type of highway where the accident had occurred, however, the Local Authority's policy was for the road to the inspected at six monthly intervals. The Code provided that where Local Authorities elected to adopt policies, procedures or standards which differed from those suggested in the Code, it was essential that the reasons for such differences were identified. The Local Authority had not undertaken a risk assessment in deciding on the frequency of inspections, and there was no evidence that the departure from the Code was the subject of proper evidence based consideration. Therefore, the Court found that the Local Authority had failed to establish that a six monthly maintenance inspection regime for the highway was appropriate. The failure to carry out monthly inspections and consequent repairs was found to be causative of the accident. Accordingly the Local Authority was found to be in breach of its duty under section 41 and the Court found in favour of TR. 19

20 DOLMANS RECENT CASE UPDATE Nuisance Barr & Others v Biffa Waste Services Limited [2012] EWCA Civ 312 The Claimant, B, lived near a landfill site operated by the Defendant, Biffa. In 1980, planning permission had been granted to use the site for landfill. In 2003, a waste management permit was granted for the tipping of pre-treated waste. This was a more offensive form of waste which produced a new type of smell emission. B and 151 others brought a group action for nuisance asserting that from 2004, when tipping started, to 2009, they had been affected by odour coming from the site. At first instance, whilst rejecting Biffa s submission that a defence of statutory authority applied, the Judge accepted Biffa s defence of reasonable use on the basis that the common law had to be adapted to march in step with European and domestic environmental legislation. The Judge considered that use of the land in accordance with the permit was a reasonable use of the land. The Judge also imposed a threshold requirement of one odour complaint each day, which most of the claims would have failed. The Court of Appeal upheld the rejection of Biffa s statutory authority defence and allowed the Claimants appeal. An activity that was conducted in contravention of planning or environmental control was unlikely to be reasonable but the converse did not follow. There was no principle that the common law should march in step with a statutory scheme covering similar subject matter. Short of express or implied statutory authority to commit a nuisance, there was no basis, in principle or authority, for using a statutory scheme to cut down private law rights. The Court also rejected the imposition of a threshold in nuisance cases. Service of Sealed Claim Form Robert Weston v Bates and Leeds United Football Club Ltd [2012] EWHC 590 The Claimant served Bates with a copy of the Claim Form in Monaco in accordance with the procedure permitted by the local law. CPR r 6.40(3)(c) stated that a Claim Form could be served by any method permitted by the law of the country in which it was to be served. 20

21 DOLMANS RECENT CASE UPDATE Bates claimed that as he had not been served with an original sealed Claim Form, he had not been validly served and so the English Court had no jurisdiction. At first instance this was not accepted. On appeal, Bates distinguished between what was to be served which was a matter for English law (submitting that English law required service of a sealed copy of the Claim Form) and how it was to be served, which was a matter for the law of the country of service. On appeal, the Court found that although English law determined what was required to be served, there was no explicit reference in the rules to the requirement of a sealed Claim Form to be served. Therefore, although the Court made obiter comments that parties would be well advised to serve a sealed copy of the Claim Form, this was not necessary and, therefore, the service was valid in this case and the appeal dismissed. For further information on any of the above cases, please contact Clare Hoskins at [email protected] or Amanda Evans at [email protected] Teleri Davies at [email protected] or Melanie Standley at [email protected] or 21

22 DOLMANS COMING UP Training Opportunities At Dolmans, we want to ensure that you are kept informed and up-to-date about any changes and developments in the law. To assist you in this, we can offer a whole range of training seminars which are aimed at Local Authorities, their Brokers, Claims Handlers and Insurers. All seminars will be tailored to make sure that they cover the points relevant to your needs. Seminars we can offer include:- Defending claims the approach to risk management Highways training Flooding and drainage duties and powers of landowners and Local Authorities for drainage under the Land Drainage Act Common law rights and duties of landowners in respect of drainage Flooding and drainage duties and powers of Highway Authorities for drainage and flooding under the Highways Act Consideration of case law relating to the civil liabilities of the Highway Authority in respect of highway waters Employers liability update Employers liability claims investigation for managers and supervisors Corporate manslaughter Ministry of Justice reforms Housing disrepair claims Public liability claims update Liability of Local Education Authority for accidents involving children The Display Screen Regulations duties on employers Bullying, harassment, intimidation and victimisation in the workplace personal injury claims Industrial disease for Defendants Apportionment in HAVS cases Pre-action protocol in relation to occupational disease claims overview and tactics Conditional Fee Agreements and costs issues If you would like any further information in relation to any of our training seminars, or wish to have an informal chat regarding any of the above, please contact our Training Partner, Clare Hoskins at [email protected] 22

23 DOLMANS COMING UP Employment Our employment team also run a series of employment breakfast briefings and half day workshops. These seminars will be of interest to all employers who want to minimise their exposure to costly tribunal claims and who want to ensure that their human resources procedures and managers are up-to-date with significant changes in the law. For further details please contact Jen Cottle at [email protected] or visit our website at One Kingsway Cardiff CF10 3DS Tel: Fax: