DOLMANS INSURANCE BULLETIN

Transcription

1 DOLMANS INSURANCE BULLETIN Welcome to the June 2012 edition of the Dolmans Insurance Bulletin REPORT ON In this issue we cover: Body combat - does blame equal claim? - Russant v Pembrokeshire County Council Medical records - when a negative becomes a positive - Lee Baker v Vale of Glamorgan Council FOCUS ON The new proportionality test : satellite litigation inevitable CASE UPDATE Adjournment of trial - medical evidence Adjournments Discontinuance - costs Manual handling Ex turpi causa - Claimant unable to recover damages caused as a result of his own criminal conduct 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 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 BODY COMBAT - DOES BLAME EQUAL CLAIM? Russant v Pembrokeshire County Council Sometimes the most simple of accidents and, on the fact of it, the most common injuries, can snowball into potentially large claims for Complex Regional Pain Syndrome and the associated ongoing losses. Pembrokeshire County Council instructed Dolmans to defend such a claim being brought by Mrs Russant. Mrs Russant was a regular attendee at Pembrokeshire Leisure Centre and took her fitness very seriously. On 11 December 2008, Mrs Russant was attending a body combat class at Pembrokeshire Leisure Centre together with 7 other participants. Body combat is a non contact fitness activity where the participants perform marshal art type moves to music. Mr Barry Clegg MBE was the fitness instructor who ran the body combat class at the leisure centre. Mr Clegg held the internationally recognised body combat instructors qualification and, as an ex-military man, was dedicated to providing the best quality fitness training he could. The body combat class was progressing as normal, until a point where Mr Clegg noticed the lady behind the Claimant was not performing one of the marshal art moves correctly or safely. Mr Clegg moved into the class to give direction to the participant behind the Claimant. Once Mr Clegg was satisfied the participant was performing the move correctly, he stepped back from her at about the same time the Claimant stepped back into a lunge as part of the movements Mr Clegg had instructed. The Claimant and Mr Clegg made contact and the Claimant fell to the ground, sustaining a soft tissue injury to her right wrist which, it was alleged, had developed into a Complex Regional Pain type injury, rendering the Claimant unable to work for 6 months before returning on a part time basis undertaking lighter duties. 2

3 DOLMANS REPORT ON The Claimant alleged the Council was in breach of duty as a result of Mr Clegg failing to look behind him before stepping back and for failing to run the exercise class safely. The Claimant s ultimate allegation was that Mr Clegg had failed to act with the reasonable care and skill to be expected of a competent body combat instructor. The Claimant did not adduce any expert or other evidence to show how Mr Clegg should have run the class. We obtained detailed witness evidence to demonstrate both the health and safety system implemented at the Leisure Centre as well as to explain the set up of the classes and the competence of Mr Clegg as an instructor. The Council had undertaken a risk assessment of the class and one of the risks identified in that assessment was the risk of injury as a result of participants colliding with each other. The control mechanism identified to reduce this risk to the lowest possible level was clear with proper instruction from the instructor. Mr Clegg gave evidence to show he had ensured the class was safely spaced and warmed up prior to the class starting. It was his practice to teach the class from the front, but would regularly move into the group to correct poor technique in order for participants to get the most out of the activity and to not injure themselves. The Court was impressed with the approach taken by the Council to health and safety at the leisure centre and was satisfied a safe and proper system was in place. In terms of Mr Clegg, the Court was satisfied Mr Clegg held the best and most appropriate qualifications and in the absence of any expert evidence from the Claimant, Mr Clegg was the only individual who could speak to the standards of a body combat instructor. 3

4 DOLMANS REPORT ON The Court did, however, have to answer the question did Mr Clegg s actions of stepping back into contact with the Claimant represent a dip below the standard to be expected of a body combat instructor acting with reasonable care and skill? Counsel for the Claimant likened the accident to Mr Clegg reversing his car into the Claimant. The Court was not, however, satisfied on the evidence as to how the accident had happened. Did the Claimant step on Mr Clegg or did Mr Clegg step on the Claimant? The Court could not be satisfied on the balance of probabilities as to exactly what happened. The Court was, however, satisfied that the Council had in place a safe system for the body combat classes, that Mr Clegg was appropriately qualified and that his level of instruction on the day of the Claimant s accident was of the appropriate and acceptable standard. As a result, the Claimant failed to prove negligence on the part of the Council. This case emphasises that in a claim for negligence, there can be a degree of fault which is not sufficient to found a claim in negligence. The Claimant must prove that the act in question brought the Defendant below the reasonable standard of care and skill to be expected. When reaching its decision in this case, the Court was undoubtedly influenced by the professionalism of the Council s witnesses and the health and safety system in place. The Court was also reminded of the Compensation Act 1996 and the effect an adverse finding in this case may have on persons undertaking a desirable activity whether as participant or instructor. Paul Veysey Partner Dolmans Solicitors For further information regarding this article, please contact Paul Veysey at [email protected] or visit our website at 4

5 DOLMANS REPORT ON WHEN A NEGATIVE BECOMES A POSITIVE Lee Baker v Vale of Glamorgan Council This claim arose out of an accident in September 2009 which occurred when the Claimant drove his vehicle into a large pothole at the edge of the carriageway on a narrow lane. When the claim was first notified to the Council by way of a Liability Claim Form completed and signed by the Claimant on 11 November 2009, in the section of the form headed Nature and Extent of Injury and/or Damage, the Claimant referred only to damage to the tyre of his car. There was no reference to any injury whatsoever. The Claimant continued to correspond with the Council and their Claims Handlers until April 2010, when the Claimant instructed Solicitors to act on his behalf as liability was being denied on the basis of the section 58 defence. All correspondence between the Claimant s Solicitors related to liability, until primary liability was admitted in an dated 21 June The next communication from the Claimant s Solicitors was an in which a nomination was put forward for a medical expert. This was the first occasion upon which there was any suggestion that the claim was anything more than a vehicle damage claim after almost 8 months of correspondence. None of the previous correspondence had referred to any injury. Notwithstanding the objection made by the Claims Handlers to the suggestion that any injury had been sustained, a medical report was obtained and disclosed. Following further written objections and arguments pertaining to medical causation, a standard protocol Letter of Claim was sent alleging that the Claimant sustained injuries to his neck/back as a result of the index accident. The Claimant s medical expert accepted that the Claimant had sustained some injury to his neck as a result of the accident, but did not consider that the mechanism of the accident was consistent with any injury to the lower back as alleged. Despite the admission of primary liability, the Council continued to reject the personal injury element of the claim, which led to proceedings being issued. 5

6 DOLMANS REPORT ON The Claimant s GP records were obtained and confirmed that the Claimant had not sought any medical treatment either at hospital or from his GP in respect of the alleged injuries, notwithstanding that in the 2 month period post accident the Claimant attended upon his GP on approximately 10 occasions for unrelated matters. It was put to the Claimant in correspondence with his Solicitors that he could not establish medical causation given the absence of any relevant entries in his medical records. In witness evidence, the Claimant asserted that the GP records were not an accurate reflection of the position as he contended that he had, in fact, mentioned the neck and back injury to his GP, in passing, when attending for other matters and that his GP had simply failed to record the same. Evidence was obtained on behalf of the Council from the Claimant s GP who confirmed that if the Claimant had mentioned a whiplash injury, even in passing, it is the type of condition that he would ensure he recorded in the notes to include the mechanism of the injury, the symptoms and the progression of the symptoms. The GP was content to say in evidence that given the lack of any reference to the alleged injuries, the Claimant could not have mentioned the same to him. The GP attended Court to give evidence on behalf of the Council. At Trial, the Claimant maintained his position that he had mentioned the alleged injuries to his GP. The Judge, however, was persuaded by the evidence of the GP that had any such injuries been mentioned to him, even trivially, he would have recorded them and, therefore, the conclusion was that the Claimant had not mentioned any whiplash injuries to his GP. The Judge, therefore, dismissed the personal injury element of the claim and commented that the lack of any contemporaneous medical records was fatal to his claim. The Judge was keen to highlight that he did not consider the Claimant was lying, simply that he had failed to show cause and effect. The Claimant was awarded damages for the cost of the repairs to his vehicle and was awarded small claims costs. The Defendant was awarded costs of the action. 6

7 DOLMANS REPORT ON Comment The requirement for evidence from the GP in this case differs from the situation whereby the Defendant is required to obtain evidence from medical professionals under the guidance set out in Denton Hall v Fifield [2006]. The reason for evidence in that scenario was to prove the accuracy of a statement made in medical records, usually where the recorded circumstances differ from the version of events given by the Claimant in the case. In this case, there was a complete lack of any statement and so the evidence from the GP was not to prove the accuracy of a statement, but rather the accuracy of the absence of any statement in the medical records. The decision in this case and the Judge s comment that the lack of an attendance was fatal to his case highlights the importance of obtaining evidence to prove an absence of evidence as it may not be sufficient simply to rely upon the absence of evidence alone where the Claimant alleges that the same is inaccurate. Anna Hind Assistant Solicitor Dolmans Solicitors For further information regarding this article, please contact Anna Hind at [email protected] or visit our website at 7

8 DOLMANS FOCUS ON THE NEW PROPORTIONALITY TEST : SATELLITE LITIGATION INEVITABLE Readers of this publication and attendees of the recent Dolmans Keynote Seminar will be aware that the Jackson Reforms appear set to usher in a new Proportionality Test with regard to legal costs, in an effort to address the worst excesses of third parties costs within the current litigation regime. The intention of this test has been clear from the outset, however, the shape of the revised rule(s) in relation to this aspect has remained unclear until very recently. On 29 May 2012, Master of the Rolls, Lord Neuberger, unveiled the wording of the new rule in London. Given the speculation which has raged in regard to this rule previously, it is worth setting it out in full: CPR 44.4(5) costs incurred are proportionate if they bear a reasonable relationship to: (a) the sums in issue in the proceedings; (b) the value of any non-monetary relief in issue in the proceedings; (c) the complexity of the litigation; (d) any additional work generated by the conduct of the paying party, and; (e) any wider factors involved in the proceedings, such as reputation or public importance. (Emphasis added) There are obviously a number of issues which arise in relation to this new rule which, it should be borne in mind, will govern the assessment of costs in relation to almost any claim for costs after 1 April 2013, assuming the Jackson Reforms are enacted on time. 8

9 DOLMANS FOCUS ON The phrase reasonable relationship is, it is submitted, fraught with potential uncertainty (and, therefore, argument) as to what precisely this is intended to mean. One obviously simple (and potentially favourable for Defendants) interpretation is that reasonable relationship should mean some sort of mathematical relationship, whereby the obvious touchstone of the sums in issue in the case should provide an anchor point for the judgement of the eventual costs claimed Such an interpretation, it should be observed, is not entirely without precedent. In the pre-1999 costs landscape, Scale 1 costs confined a successful Claimant s costs in a claim worth less than 3, to, effectively, 1, to 1, plus disbursements. These figures seem almost quaint and nostalgic in comparison to the claims of today. Defendant practitioners will know from bitter experience that such a logical interpretation of such requirements is not necessarily the one adopted by the Courts in such matters. When the Woolf Reforms were enacted in 1999, many practitioners felt that proportionality (which was a phrase used throughout the then new CPR) meant just that : a logical and/or mathematical relationship between the damages at stake and the costs incurred to obtain those damages. On a more prosaic level, the rhetorical question was often posed in the context of CFA retainers : would a privately paying client accept charges at that level in the context of a recovery of those proportions, for example, would a private client be prepared to accept a bill of say 15, to successfully conclude a dispute valued at 3,000.00? Often, at least in Defendant circles, a resounding no was the response to such a question. However, the seminal case of The Home Office v Lownds [2002] exploded any expectation that this approach would be that adopted in the context of judicial scrutiny of the question of proportionality. The new proportionality test is supposed to be designed to address these issues (bearing in mind the criticism which the decision in Lownds has more recently attracted) and, specifically, to address the perennial problem of third party costs far outstripping damages (a major concern in the report of Lord Justice Jackson). However, much criticism has been made of both the wording of the test itself and the lack of any guidance (by way of Practice Direction or similar) as to the implementation of the test. 9

10 DOLMANS FOCUS ON In recent articles in the legal press, commentators have been highly critical of the lack of such guidance and the perceived inevitability of so-called satellite litigation to deal with issues like the ones discussed above, and also matters such as how does a party s conduct affect the Court s approach to proportionality and does, for example, one party s conduct displace the proportionality test or merely modify it to some extent or in reference to a specific element of costs? Perceived complexity is another issue which has bedevilled the Courts since the inception of the CPR. It is a word which, again, has an obvious and simple meaning in the real world, yet in the context of litigation, very often, complexity is said to exist in relation to what are, extrinsically, very simple and run of the mill cases. In his recent speech concerning the new proportionality test, Neuberger MR offered Defendants no immediate succour when he stated: It would be positively dangerous for me to seek to give any sort of specific or detailed guidance in a lecture before the new rule has come into force and been applied.. The law on proportionate costs will have to be developed on a case by case basis. This may mean a degree of satellite litigation while the courts work out the law, but we should be ready for that, and I hope it will involve relatively few cases. (Emphasis added) Accordingly, it would appear that satellite litigation as a result of this new test is positively envisaged. Given the issues riding upon the clarification of this new rule and the potential monetary importance of its successful implementation, the stakes in such cases could not be higher and the uncertainty which will exist whilst such cases work themselves through is a specific concern to all those involved in civil litigation. In the meantime, Defendants and Insurers will simply have to watch and wait to see whether this new rule, a central part of the Jackson edifice, actually addresses the concerns identified in the original report. Peter Bennett Partner Dolmans Solicitors For further information regarding this article, please contact Peter Bennett at [email protected] or visit our website at 10

11 DOLMANS RECENT CASE UPDATE Adjournment of Trial - Medical Evidence Reynolds DIY Stores Ltd sub nom (1) Atkinson (2) Mummery v Calvin Reynolds [2012] Chancery Division The Applicant, Reynolds DIY Stores Ltd, applied for an adjournment of the Trial. He did not appear to make his Application, but relied on a Witness Statement stating that he had been recently discharged from hospital and had been advised by Doctors to avoid stress. He adduced a letter from a Doctor advising that he was not fit to work for one month and was not well enough to attend Court. The one month period had expired before the Hearing. The Court found that the Doctor s letter failed to clarify when the Applicant would be fit enough to attend Trial. Further, the Applicant did not need to be cross-examined during the Trial as there was no dispute of fact, only matters of law. Accordingly, the Court found that there was nothing to be gained by postponing the Trial and the Application was refused. Adjournments Birmingham City Council v Lloyd [2012] EWCA Civ 744 The Council had appealed against the dismissal of its claim for possession of a property occupied by the respondent, L. On the day the appeal was due to be heard, L applied for an adjournment on the grounds that his Legal Aid had been withdrawn at the last minute on the grounds of means. L advised the Court that he had spoken to the Legal Services Commission who had told him they would reconsider the position and possibly reinstate Legal Aid. The Council opposed the adjournment on the grounds that if there was an adjournment and the appeal was successful, it would be kept out of possession for an even longer period and thereby prevented from re-allocating the property. Whilst the Court considered that the prospect of Legal Aid being restored was speculative, the adjournment was nevertheless granted. If the Claimant lost his appeal, he would lose his home. The prejudice of not being represented was, therefore, significant. Further, from the Council s point of view, if they were to win, it would be a useful precedent for Housing Authorities and the authority of the decision would be seen as greater if L was represented. 11

12 DOLMANS RECENT CASE UPDATE Discontinuance Costs Clive Wollman v Timothy Weller [2012] EWHC 1292 (QB) The Applicant, X, applied for permission to appeal against a decision that he was liable for the costs of the respondent, Y, following the discontinuance of his claim. X claimed that Y had represented that his Solicitor was working on a highly favourable and concessionary basis as regards costs and that he had acted in reliance on that representation. X contended that if Y had not misled him, he would have discontinued at an earlier stage and had a lower liability in respect of Y's costs. The Judge (HH Judge Birtles) granted permission to discontinue pursuant to CPR 38.2(2)(a) (ii). The Judge, however, declined to make an Order pursuant to CPR 38.6(1) that X be not liable for all the costs of Y upon such discontinuance. On Application for permission to appeal, X submitted the Judge was wrong to make the Order without the benefit of cross-examination. The Court decided that an Application by a Claimant who discontinues proceedings that he be not liable for the costs of the Defendant is not a Trial, stating that the whole point of an Application to discontinue is that there should not be a Trial. The Court decided that the fact that a Claimant might well have succeeded at Trial is not itself a good reason why a Court should make an order under CPR that the Claimant should not pay the Defendant's costs. The Judge saw no real prospect that an Appeal Court would find that the Judge was wrong on these points. X s Application was refused. Manual Handling Ali Ghaith v Indesit Co UK Ltd [2012] EWCA Civ 642 The Claimant, G, was employed by the Defendant, Indesit, as a Field Service Engineer, employed to visit homes to repair and maintain white goods. Once a year, a stock take of the equipment in his van was undertaken. This involved taking everything out of the van and scanning it. On 2 March 2007, such a stock take was undertaken. It took most of the day. Towards the end of the day, G felt a severe pain in his back. The Trial Judge found that because G had been handling and lifting for a long time, a moment s inattention caused him to lift or move a box awkwardly, causing an injury to his back. 12

13 DOLMANS RECENT CASE UPDATE The Trial Judge held that there was risk of injury, but a manual handling assessment undertaken by Indesit in December 2006 in relation to handling tote boxes in the loading and despatch area was suitable and sufficient within Regulation 4 (1)(b)(i) of the Manual Handling Regulations Further, the Claimant had been trained how to lift and there was nothing more that could have been done by Indesit. Accordingly, there was no breach of duty. G appealed. The Court of Appeal allowed the appeal. The Court considered that the 2006 risk assessment was not suitable or sufficient. The relevant feature of stock taking was that the risk of injury arose due to handling items over a long period. That risk was not addressed in the risk assessment. The Court confirmed that the onus was firmly on the employer to show that it took all reasonably practicable steps to reduce the risk of injury. There was no obligation on an employee to suggest ways in which the risk could be reduced. An obvious precaution, which was not considered by the Trial Judge, was that there should have been regular breaks of reasonable length in the stock taking operation. If an employer failed to prove that he took appropriate steps to reduce the risk to the lowest level practicable it would normally be liable. Whilst there may be cases in which it could be shown that the injury would have occurred in any event, the onus of so proving is on the employer. The Court of Appeal found no contributory negligence. Ex Turpi Causa - Claimant unable to Recover Damages Caused as a Result of his own Criminal Conduct David Michael Joyce (by his Litigation Friend, Stephanie Tarrant) v Edward Gerald O Brien, Tradex Insurance Company Limited [2012] EWHC 1324 (QB) The Claimant, J, sustained a severe head injury after falling off the back of the rear footplate of a van he had been standing on. The van was being driven at speed by the First Defendant, O, J s uncle. J claimed damages for personal injury arguing that the accident had been caused by O s negligence. O pleaded guilty to a charge of dangerous driving on the basis that he was driving too fast for the relevant road as J was on the back of the van. O played no part in the action and neither J nor O gave evidence. 13

14 DOLMANS RECENT CASE UPDATE Witnesses described O s driving as reckless; J hanging onto the back of the van and holding onto the ladders; O removing the ladders from the van after the accident and returning to the scene of the accident empty-handed; and, the ladders having been found in an alleyway near the scene as fitting the description of the stolen ladders. The Second Defendant, O s Motor Insurers, T, defended J s claim on the basis that O owed no duty of care to the Claimant and/or was entitled to rely upon the legal doctrine of ex turpi causa non oritur actio since, at the time of the accident, according to T, J and O were engaged in a common criminal enterprise; having stolen ladders from a nearby property and were making their getaway. The Judge stated that the evidence of the theft was circumstantial, but the inference was overwhelming. The Judge decided that it was clear that the ladders recovered from the alleyway were stolen, that both O and J had been involved in their theft and that it was a joint enterprise. J and O were both participating in a criminal enterprise and J s actions in hanging onto the ladders on the outside of the van were an essential element of the enterprise. The doctrine of ex turpi causa applied and J could not recover damages from O for the injury suffered in the course of that enterprise as this had occurred as a result of J s criminal conduct and that conduct was as causative of his injury as was O s. J s claim was, therefore, 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 14

15 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] 15

16 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 Bethan Walsh at [email protected] or visit our website at One Kingsway Cardiff CF10 3DS Tel: Fax: