Legal Watch: Personal Injury

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1 Legal Watch: Personal Injury 1st May 2015 Issue: 061

2 Ex turpi causa McCracken (Protected Party) v Smith (1); MIB (2); Bell (3) (2015) EWCA Civ 380 is the latest in a line of cases looking at the defence of ex turpi causa. It is of particular interest because it examines how the defence may operate differently for two parties in the same accident. The 16-year-old claimant/first respondent had been a pillion passenger on a trials motorbike ridden by the second respondent, another 16-year-old boy. Neither had been wearing a crash helmet and the rider did not have a driving licence or insurance. The bike had been stolen, was designed for a single rider and was being ridden too fast on a cycle path. In this issue: Ex turpi causa Damages/discount rate Damages/interim payments Jurisdiction Watch this space The defendant/appellant was driving a minibus, which collided with the bike. The claimant was seriously injured. The judge found that the second respondent rider was liable to the claimant in negligence. He rejected the defence of ex turpi causa relied on by the rider and the third respondent MIB, and, by implication, the defendant. The judge also found that the MIB had not proved that the claimant had known or should have known that the bike was stolen, but had proved that he knew it was being used without insurance and that the MIB s liability was therefore excluded. He found that the defendant had driven negligently, but reduced the claimant s damages by 45% for contributory negligence. He apportioned liability between the rider and the defendant in the ratio 80:20 but ordered that the defendant was to pay 90% of the MIB s costs. The defendant appealed submitting that the judge had erred in (1) rejecting his defence of ex turpi causa; (2) finding that he had been negligent; (3) his characterisation of the claimant s role as just going for a ride rather than a joyride and, consequently, in the reduction of only 45% for contributory negligence; and (4) making the costs order. Allowing the appeal, but only in part, the Court of Appeal held that the claimant s conduct undoubtedly amounted to turpitude for the purposes of the ex turpi causa defence. The

3 question was whether his claim against the defendant was founded on that turpitude so as to provide a defence. There had been a joint enterprise to ride the bike dangerously and, although the negligent act was that of the second respondent rider, the claimant was jointly responsible and could not bring a claim against the rider in respect of his own negligent act. The judge had therefore been wrong to reject the defence of ex turpi causa in relation to the claimant s claims against the rider and the MIB. The accident had two causes: the dangerous riding and the negligent driving of the minibus It did not necessarily follow that that applied to the claimant s claim against the defendant. The dangerous riding of the bike had no effect on the defendant s duty of care or on the standard of care reasonably expected of him. However, the causation analysis was more problematic. The accident had two causes: the dangerous riding and the negligent driving of the minibus and it would be wrong to treat one as the true cause. The fact that the criminal conduct was one of the two causes was not a sufficient basis for the ex turpi causa defence to succeed. The correct approach was to give effect to both causes by allowing the claimant to claim in negligence against the defendant but, if negligence was established, to reduce any damages for contributory negligence. should have looked over his shoulder along the cycle path before turning right. If he had looked, on the judge s findings, the bike was there to be seen. Either he did not look or, despite looking, failed to see it. The judge had erred in his characterisation of the claimant s role. He had been unduly generous to the claimant in distancing him from the rider s dangerous riding. It was joyriding and the proper inference was that the two boys were parties to a joint enterprise, the essence of which was that the bike was to be ridden dangerously. That joint enterprise rested on an implied agreement between them to participate. If, at the time of the accident, the claimant was party to such a joint enterprise, his participation had to be regarded as a cause of his injuries. He was therefore the author of his own misfortune to a greater extent than allowed by the judge. A fair reflection of that greater degree of blameworthiness and causative potency of the claimant s conduct was an overall deduction of 65% in his damages, namely 50% plus the agreed deduction of 15% for his failure to wear a helmet. The order that the defendant should pay the bureau s recoverable costs was within the reasonable ambit of the judge s discretion. There was nothing wrong with the judge s finding that the defendant had been negligent in failing to check for bikes on the cycle path. The judge had carefully explained why the defendant should have been aware of the possibility that one or more bikes were approaching. There was no basis for interfering with that assessment, founded as it was on the particular circumstances of the case. Once that factor was accepted, the finding of negligence inevitably followed. A finding of negligence would have been appropriate even in the absence of that factor. On any view, the defendant 02

4 Damages/discount rate This periodical does not normally cover criminal injuries compensation claims but the case of LHS (Protected Party) v First Tier Tribunal (Criminal Injuries Compensation) and another (2015) EWHC 1077 (Admin) covers a discussion about the application of the discount rate and an attempt to introduce evidence to support a lower rate than 2.5%. The claimant was entitled to compensation for criminal injuries and sought judicial review of a decision of the defendant tribunal that the appropriate discount rate for future losses was that set by the Lord Chancellor under the S1(1) Damages Act 1996, namely 2.5%. The Criminal Injuries Compensation Scheme which applied to the claimant s case was the 1990 Scheme. Paragraph 12 of the Scheme provided that compensation would be assessed on the basis of common law damages....the expert evidence in his case showed that the application of a discount rate of 2.5% would lead to his being undercompensated been correct to adopt a discount rate of 2.5%. The 1990 Scheme was a practical document designed to be applied without elaboration or complexity. It was not concerned with sources of law, or with which principles happened to be purely judge-made as opposed to those which had a statutory origin. The objective of the Scheme was to achieve for the victim of a crime of violence a financial outcome akin to that achieved by the victim of a tortfeasor in a civil case. The only means by which that outcome could be attained was by applying the Lord Chancellor s rate, because that was the rate systematically applied by the civil courts. The application of common law principles in the strict sense was not the basis of assessment laid down in the Scheme. If those principles were to be strictly applied, different outcomes would be achieved under the Scheme in comparison with the civil courts. Further, the assessment exercise would become far more technical and complex, evidence would be required, and somewhat artificial distinctions would have to be made between judge-made law and statute. Even treating the 1990 Scheme as a living instrument, it could not have been within the contemplation of its makers that evidence would and could be admissible in every case to support the discount rate argued for. The assessment exercise would, on that hypothesis, be considerably more complicated than that undertaken by judges applying the 1996 Act. The claimant argued that the common law should apply untrammelled, without regard to statute; that would mean that expert evidence could be adduced on the appropriate discount rate; the expert evidence in his case showed that the application of a discount rate of 2.5% would lead to his being under-compensated. Refusing the application, the High Court judge held that the basis of assessment of common law damages required the application of the methodology which a civil court would adopt to a comparable claim. The tribunal had therefore 03

5 Damages/interim payments The case of Grainger v Cooper (2015) EWHC 1132 (QB) involved consideration of an application for a further interim payment, expressly to enable a claimant to purchase a property before the trial of quantum. The claimant, who was born in 1990, had suffered serious injuries in 2012 when she was thrown from the motorcycle she was riding as a pillion passenger. The most severe injury was a spinal cord injury resulting in paraplegia. Liability was not disputed and judgment was entered with damages to be assessed. A trial date was set for January Substantial interim payments were made. The amount for which credit would have to be given at trial was 1,011,764. The claimant was currently living with her parents and their house had been adapted to meet her needs. The instant application arose as she wanted to buy her own property which would also need to be adapted. The net amount sought was 425,000. The deputy High Court judge held that the starting point was CPR 25.7(4), which stated that a court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment. The assessment comprised two stages, as set out in Eeles v Cobham (2009). Under the first stage the judge had to assess the likely amount of the final judgment leaving out of account the heads of future loss which the trial judge might wish to deal with by way of a periodical payment order. The allowable heads of loss might comprise general damages for pain and suffering and loss of amenity, special damages to date, interest on those heads, capitalised accommodation costs including future running costs. The assessment had to be carried out on a conservative basis. Provided that was done, a reasonable proportion might be high; proportions as high as 90% had been awarded in the past. However, where the interim payment requested exceeded a reasonable proportion of the likely award assessed, recourse might be had to the second stage. Under the second stage the judge might include in the assessment of the likely amount of the final judgment the capitalised amounts of future losses. However, he could only do that if he could confidently predict that the trial judge would wish to award a larger capital sum than that covered by the items falling within the first stage. Furthermore, the judge had to be satisfied that there was a real need for the interim payment requested. There was no reasonable necessity for the claimant to spend any money in respect of alternative accommodation before the conclusion of the trial The stage one assessment was made on the basis that the appropriate lump sum award was 1,272,400 of which 90% was 1,145,160. 1,011,160 had already been paid by way of interim payments. That left a sum of 133,396 for a further interim payment. That was not enough to purchase the property so the second stage had to be considered. The compelling problem for the claimant was that it was manifestly obvious that there was no immediate reasonable necessity to purchase another property before the trial. The court took into account the fact that the claimant wished to commence living independently of her parents in her own property and that suitable properties were scarce in the area where she wanted to live. However, she was adequately accommodated in a property that had been recently adapted to cater for her needs. There was no reasonable necessity for the claimant to spend any money in respect of alternative accommodation before the conclusion of the trial. In any event the instant case was not one where the 04

6 court could confidently predict that the trial judge would necessarily wish to capitalise heads of future loss. The judge was conscious of the requirement that he should take into account the level playing field argument. A further interim payment of 133,000 was awarded. 05

7 Jurisdiction In Moreno v MIB (2015) EWHC 1002 (QB) the High Court considered the conflict between the wording of the Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003 and the affect, in other situations, of the Rome II regulations. The English claimant had suffered severe injuries to her legs following an accident involving an uninsured driver while she was on holiday in Greece. She brought a claim against the MIB under Regulation 3 of the 2003 Regulations and liability was admitted. The level of compensation assessed under Greek law would have been lower than that which was payable under English law. addressed the effect of the coming into force of Rome II on that issue; it stated that the law applying to the existence of tortious liability had, since Rome II, been the law of the country where the injury was caused, but that the law by which the court assessed compensation remained English law. That approach had also been subsequently endorsed by the Court of Appeal in Bloy (2013). The court was bound by Jacobs and Bloy on the interpretation of the Regulations. The court concluded that the effect of Regulations 13 and 16 was to create a cause of action enforceable as a civil debt, in which the compensation would be assessed on the basis of English law. The MIB argued that since the coming into force of Rome II, Regulation 13 could not be applied so as to provide for a level of compensation that was different from that obtainable in the country where the accident occurred....in a Regulation 13 claim the law by which the assessment of compensation was to be made was England and Wales Finding in favour of the claimant on this preliminary issue, the High Court judge held that in a Regulation 13 claim, namely where a person from England and Wales had suffered an injury in another EU state at the hands of a culpable but uninsured or unidentified driver, but was claiming in England and Wales, the law by which the assessment of compensation was to be made was England and Wales, i.e. the state where the court dealing with the claim was situated. The Court of Appeal in Jacobs (2011) 06

8 Watch this space We have tracked the progress of the case of Proctor v Raleys Solicitors because it is bound to cause great concern within claimant firms dealing with high volume, low value claims, where there is a risk of under- settlement. Many of these claims are handled with minimum contact with the claimant. The case has now reached the Court of Appeal and is reported at (2015) EWCA Civ 400. The claimant/respondent, a former miner, had developed vibration white finger as a result of his employment. He instructed the defendant/appellant solicitors to pursue a claim for damages under a tariff-based compensation scheme set up by the Department for Trade and Industry. The defendants received the claimant s instructions and gave him advice without ever meeting him face-to-face. The advice they gave him was contained in three standard letters which incorporated tick-box reply forms. In November 2003, the claimant agreed to settle his claim for 11,141. That sum was paid in settlement of his claims for pain, suffering, loss of amenity and handicap on the labour market. Although the claimant had been entitled to claim for services, namely assistance with domestic tasks rendered necessary as a consequence of his disability, he had made no such claim. Although the standard letters had referred to the possibility of a services claim, he had not pursued one. The claimant s wife and son were helping him with the household tasks he could no longer do, and he thought that he had to be paying for such help in order to make a claim. That was not, in fact, the case. Although a medical report alerted the defendants to the possibility of the claimant having a services claim, they did not ask him why he was not pursuing one. He brought a claim in negligence against the defendants, arguing that had they properly advised him about the types of claim he could make, he would have claimed for services and could have recovered an additional 11,079. The trial judge found that the defendants should have consulted with the claimant to ensure that he understood the advice they were giving him. He awarded 5, for the loss of the opportunity to pursue a services claim. Dismissing the defendants appeal, the Court of Appeal held that the judge correctly directed himself that the standard of care required of the defendants was that of the reasonably competent solicitors specialising in that particular area of law. He noted that they held themselves out to be specialists in industrial disease, and experienced in handling claims for miners, both generally and under the scheme. He concluded that a reasonably competent practitioner specialising in that type of work would not have sent out a series of long, standardised letters and expected the client to tick the correct boxes to reflect his instructions. Rather, he would have had a discussion with the client to try to ensure that he had understood the correspondence. The judge also concluded that it was reasonably foreseeable that the claimant might not fully understand what claims he was entitled to make, and that it was not too much to ask a solicitor to consult directly with the client and to advise him in layman s terms what a services claim was and whether he could potentially claim. Those conclusions were right....solicitors had to ensure that clients understood their advice, and they were not to let costs considerations prevent them from ensuring that they did... The three standard letters were not clear in relation to the making of services claims, the defendants had information suggesting that the claimant was entitled to make such a 07

9 claim, and he had passed up the opportunity of making such a claim. The situation had cried out for a short discussion to ensure that the claimant understood the circumstances in which a services claim could be made. Doing that over the telephone would not have greatly increased the costs. In any event, solicitors had to ensure that clients understood their advice, and they were not to let costs considerations prevent them from ensuring that they did. What a solicitor had to do to ensure that his advice was understood was a question of fact and degree. Standard form letters of advice had to be clear in their exposition, and the three in the instant case were not. The first two did not make it clear that a services claim could be made where there had been no financial outlay. Indeed, they were capable of being read as indicating that only financial loss could be compensated, and the third letter confirmed that reading. Moreover, they did not give a clear exposition of whether a diminished ability, rather than a total inability, to perform household tasks would be a sufficient basis upon which to make a successful claim. While it was to the defendants credit that their system had generated an internal reference to the possibility of the claimant having a claim, they had not followed that up by asking why he was not instructing them to pursue it. To impose liability for the failure to follow up did not involve the imposition of an unrealistic standard. The claimant could fairly be regarded as unsophisticated in the relevant field; the written advice given to him was unclear; and there were clear indications that he might not have understood that advice. Publications If you would like to receive any of the below, please indicating which you would like to receive. Weekly: Legal Watch: Personal Injury Monthly: Legal Watch: Property Risks & Coverage Quarterly: Legal Watch: Counter Fraud Legal Watch: Health & Safety Legal Watch: Professional Indemnity Legal Watch: Disease Contact Us For more information please contact: Geoff Owen, Learning & Development Consultant T: E: gro@greenwoods-solicitors.com To unsubscribe from this newsletter please crm@greenwoods-solicitors.com The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC Registered office: 12 Dingwall Road, Croydon, CR0 2NA. Parabis Law LLP is authorised and regulated by the SRA.

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