DOLMANS INSURANCE BULLETIN

DOLMANS INSURANCE BULLETIN Welcome to the August 2012 edition of the Dolmans Insurance Bulletin REPORT ON In this issue we cover: Mesothelioma - not necessarily a terminal condition - AP v Bridgend County Borough Council FOCUS ON Increase in damages after 1 April 2013 - Simmons v Castle [2012] Mesothelioma Scheme of Last Resort launched for newly diagnosed cases CASE UPDATE ATE premium Apportionment of liability Costs - Part 36 offer Fraud - contempt of court Landlord and tenant - Occupiers Liability Act 1957 / Defective Premises Act 1972 Personal injury - forseeability of injury 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 e-mail the editor, Justin Harris, Partner, at justinh@dolmans.co.uk 1

DOLMANS REPORT ON MESOTHELIOMA - NOT NECESSARILY A TERMINAL CONDITION AP v Bridgend County Borough Council Introduction Readers of this publication will be aware from previous articles that a diagnosis of mesothelioma in the context of historical asbestos exposure is almost invariably regarded as a death sentence. Indeed, in the vast majority of cases, such diagnosis tragically leads to increasing disability and eventual death. It is the combination of this very bleak prognosis, coupled with the latency period before the condition can develop and the relatively low levels of exposure sufficient, in certain circumstances, to give rise to the condition which makes claims of this nature so very difficult on so many levels. However, a recent claim involving Bridgend County Borough Council illustrates the point that even in the context of mesothelioma litigation, not all outcomes are certain and, like so many other areas of law, one is dealing with a developing state of knowledge where specialist insight is very useful. Summary of Facts and Medical Evidence In the case of AP, the Claimant was employed by a predecessor Authority to Bridgend County Borough Council, together with a brief period with Bridgend County Borough Council as a carpenter. As a result of this employment, he was exposed to asbestos insulation boards and other asbestos containing materials. Prior to his employment with Bridgend County Borough Council, the Claimant was employed by the former National Coal Board as a carpenter at one of its mines in the South Wales area. During the course of this employment, he was similarly exposed to asbestos containing materials. There was no issue as to culpable exposure in either employment, nor, therefore, as to causation. In early 2010, the Claimant began to experience symptoms of tiredness and breathlessness. Eventually, he was admitted to his local hospital for further investigations. Ultimately, these investigations, including a laparotomy, revealed the presence of an abdominal tumour. This tumour was removed and, obviously, sent for histological investigation. 2

DOLMANS REPORT ON The histology of the tumour was originally unclear and its exact aetiology was discussed at various multidisciplinary meetings conducted between a number of medical practitioners. Finally, in early February 2011 (the Claimant s operation was in September 2010), the tumour was confirmed to be a peritoneal mesothelioma. However, in the meantime, as a result of the removal of his tumour in September 2010, the Claimant reported significant amelioration of his symptoms and, indeed, described himself to his treating clinicians as a new man. The weight which he had previously lost he had regained and he appeared to be making good progress, in complete contrast to the usual course of the disease. In May 2011, the Claimant was reviewed at the oncology clinic at his local cancer hospital, whereat it was noted that a CT scan on 9 May 2011 had not noted any current disease. Once again, the Claimant was noted as feeling very well and/or symptom free. In the claim itself, the Claimant relied upon medical evidence from Dr Robin Rudd, who reported the position in terms of the Claimant's condition, as summarised above. He concluded that the prognosis in the case was extremely difficult to predict because of the unusual nature of the tumour involved. Dr Rudd noted that this appeared to be a localised peritoneal mesothelioma, which, although reported on occasions within the literature, was an extremely rare form of tumour. Against that background, even Dr Rudd felt unable to give a finalised prognosis, albeit his sense of the position was that, sooner or later, the Claimant's condition would re-occur and, at that point, the usual, very bleak, prognosis would be applicable. Dr Rudd, on that basis, estimated life expectancy at 4 years, with a suggested likely range of 2 to 6 years. In view of the unusual circumstances in the case, and noting the generally effective treatment that the Claimant appeared to have received (entirely inconsistent with the usual situation in mesothelioma claims), we instructed Dr Charles Hind to examine the Claimant and prepare a report on behalf of the Defendants. Having examined the Claimant and having considered the wealth of histopathology evidence and/or discussions as to the nature of the tumour in question, Dr Hind concluded that this was, indeed, a localised (non-diffuse) peritoneal mesothelioma. 3

DOLMANS REPORT ON Dr Hind agreed with Dr Rudd s assessment of matters in terms of the rarity of localised malignant pleural and peritoneal mesotheliomas. However, following a search of relevant medical literature we conducted, Dr Hind was able to refer to a number of studies in relation to the treatment of and/or prognosis for localised mesothelioma. Interestingly, having considered this medical literature, Dr Hind indicated that localised pleural mesotheliomas are apparently more frequent (albeit, still extremely rare). Accordingly, for such a tumour to arise in the peritoneum is an extremely rare event. Nevertheless, based upon the obviously greater number of studies in relation to localised pleural mesothelioma, Dr Hind took the view that the Claimant might very well be cured, albeit that time would tell in respect of the Claimant's condition. Indeed, in essence, the longer that the Claimant remained symptom free, the more likely it was that he would remain so for the foreseeable future. Following discussions between the Experts, it was effectively agreed that there was a reasonable to good prospect that the Claimant had been cured and that, realistically, and again, only time would tell as to whether this was in fact the case. Basis of settlement The claim was put upon the conventional basis in respect of a living mesothelioma claim; that is in terms of damages for pain and suffering and loss of amenity, together with damages in respect of lost years earnings. On that basis, the claim had a realistic valuation (subject to apportionment between the Defendants) of around 200,000.00 (plus costs). Obviously, the developing medical situation put the claim into a unique category. Additionally, given the nature of the Claimant's condition, the case was subjected to expedited directions and/or the usual reduced timetable to trial. The parties were, therefore, faced with a very difficult dilemma. On the one hand, one could simply assume that Dr Rudd's underlying view would prevail and that, sooner or later, the Claimant's condition would re-occur, leading to his eventual death. In that situation, the appropriate and realistic basis of valuation would be by reference to a conventional (full and final) award (see above). 4

DOLMANS REPORT ON However, in circumstances where the Claimant's condition had been subjected to a substantial cure, settlement upon this basis brought with it the significant risk of overcompensation of the Claimant. Accordingly, following discussions between the parties as to apportionment and the arrival of a suitable apportionment between the Defendants, it was resolved that an approach should be made to the Claimant s Solicitors with a view to a possible provisional damages settlement. A provisional damages settlement in a case such as this is, obviously, not without risk. The fundamental risk in such an approach is, obviously, that one is simply forestalling the inevitable in the context of the Claimant's condition eventually worsening. However, again, the contrary risk is that by settling the claim on a conventional basis a significant overcompensation situation arises if the Claimant has been cured of his condition. Further complexity was injected into the situation by means of the usual interim payment of damages ordered by the Court at the Case Management Hearing in October 2011. Fortunately, in light of the developing medical situation and, more importantly, our impression of how that might play out, we were able to instruct Counsel at that hearing to make appropriate submissions to limit the award, which was, ultimately, limited to 15,000.00 (as against the usual 50,000.00 figure). Following initial discussions with the Claimant s Solicitor, it was resolved that the Claimant would consider a provisional damages settlement, provided a suitable figure could be arrived upon and provided he was in receipt of further reassurance from his medical practitioners that, at least for the present, his condition remained stable and/or in remission. The issue of appropriate valuation of the claim was then the focus of discussions. Key to this issue was one of the issues which habitually entertain the parties in mesothelioma cases, that is the effect of the psychology of the diagnosis. In this case, we were presented with a unique situation in that all of the psychological elements of the diagnosis were present (indeed, the Claimant was provided with a very bleak prognosis, initially, by his medical practitioners), albeit the physical manifestations of that diagnosis were absent. The basis of valuation in the case, therefore, provided a significant dilemma for the parties which was, again, further complicated by the presence of both an interim payment of damages and significant PWCA compensation (which, technically, the Defendants were entitled to offset). 5

DOLMANS REPORT ON Ultimately, after much discussion, the claim was resolved on the basis that the Claimant accepted damages commensurate with the previous interim payment, together with the PWCA award. In simple terms, this meant the Claimant accepted his previous interim payment of damages (in the sum of 15,000.00), together with PWCA benefits, making a total payment to the Claimant of around 57,000.00. The claim has been compromised upon the basis that the Claimant can return (during his lifetime) for further damages in the eventuality that he develops diffuse pleural or peritoneal mesothelioma (or the usual range of other asbestos induced conditions). By this methodology, the Defendants have achieved a significant saving over what the claim would otherwise have been valued at and, at the same time, the Claimant's right to return for further damages has been preserved. Hopefully, the guarded prognosis provided by the medical experts will, in fact, turn out to be correct and the Claimant will have achieved a cure for his condition. Even if that is not the case, it was the view of the Defendants involved in the case that the potential saving in terms of settlement by way of a provisional damages settlement was worth the risk of potential further deterioration. Generally This case serves to illustrate how even medical conditions as predictably relentless as mesothelioma can still serve to surprise and, in so doing, throw up unique problems and/or dilemmas. It is perhaps of further note that we were successful in persuading the Compensation Recovery Unit that benefits payable in the case should cease at the point of the original interim payment (which, ultimately, became the settlement figure) this being treated as a conventional interim payment which was eventually treated as a final payment, and, in so doing, achieved a refund of outstanding benefits of around 4,400.00. The interesting element to this aspect, however, is the fact that during the course of discussions with the Compensation Recovery Unit, it emerged that they were aware of only one other case where this kind of localised mesothelioma had arisen. The case also serves to illustrate how it is necessary, even in what appears to be the most predictable of circumstances, to keep an open mind in order to achieve an appropriate result. For further information regarding this article, please contact Peter Bennett at peterb@dolmans.co.uk or visit our website at Peter Bennett Partner Dolmans Solicitors 6

DOLMANS FOCUS ON INCREASE IN DAMAGES AFTER 1 APRIL 2013 Simmons v Castle [2012] Readers will be aware that one of the proposals of the Jackson Report (which has been publicised heavily since its publication) was that General Damages should rise by 10% to partly compensate Claimants for having to pay Conditional Fee Agreement (CFA) success fees themselves from any award of damages. The Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) abolishes recoverability of success fees from a date to be determined by regulations. The Government has since made it clear that the said date will be 1 April 2013 and that the provision will apply only to CFAs signed on or after this date. Where a CFA is entered into before 1 April 2013, the success fee will still be recoverable, even if the case ends after 1 April 2013. It was unclear, however, until the recent case of Simmons v Castle [2012] EWCA Civ 1039, as to how the suggested 10% increase in General Damages would be effected. Implementing the 10% Increase In Simmons, Lord Judge (the Lord Chief Justice), sitting in the Court of Appeal, declared that with effect from 1 April 2013, the proper level of General Damages for (i) pain, suffering and loss of amenity in respect of personal injury, (ii) nuisance, (iii) defamation and (iv) all other torts which cause suffering, inconvenience or distress to individuals, will be 10% higher than previously. Not only has the Court of Appeal widened the matters to which the 10% increase will apply, but has decided that the increase will apply to all cases where Judgment is given after 1 April 2013, whether or not the matter is being conducted under a CFA and irrespective as to when that Agreement was signed. Taking into account the combined effects of LASPO and the decision in Simmons, success fees in relation to CFAs pre-dating 1 April 2013 will remain recoverable and there will be a 10% increase in damages in those cases, providing Claimants with something of a windfall in such matters. Effects on Part 36 Offers Unfortunately, the Judgment in Simmons does not deal with the potential problems associated with Part 36 Offers, thereby intensifying the problems already foreseen between Part 36 Offers and Qualified One-Way Costs Shifting, which was commented upon by Peter Bennett in his recent article: Qualified One-Way Costs Shifting Its Interaction with Part 36 of the CPR from April 2013 (Dolmans Insurance Bulletin July 2012). 7

DOLMANS FOCUS ON The decision in Simmons highlights even more potential conflict between the new regime and Part 36 of the Civil Procedure Rules (CPR). For example, if a Claimant offers, at current rates, 10,000.00, and a Defendant offers 9,500.00, but the Trial Judge in the case, sitting from 1 April 2013, awards 9,200.00, up-rated by 10% to 10,120.00, has the Claimant beaten the Defendant s offer? The Claimant will, no doubt, argue that the Defendant should have increased its Part 36 Offer by 10%. However, if the Claimant accepted such an offer before 1 April 2013, the Defendant would have effectively overpaid the Claimant by 10%. The situation is not made any simpler by the fact that the 10% increase will apply to General Damages, not Special Damages, and Part 36 Offers have historically encompassed both General Damages and Special Damages. It is inevitable, therefore, that the Courts will be required to dissect such Part 36 Offers before being in a position to consider the costs consequences of the same. The ministerial statement issued in July 2012, reported in Peter Bennett s article referred to above, includes reference to the introduction of a 10% uplift in damages, where a Claimant equals or beats its own Part 36 Offer. This uplift is wholly separate from the 10% uplift in General Damages, as discussed above, and adds another dimension to the Part 36 situation, which is already far from simple. Simplicity and Clarity? Not Quite! In Simmons, Lord Judge stated that early notice was being given to enable all parties engaged in or contemplating litigation to be aware of the impending change and prepare accordingly. Although it is, of course, useful for everyone to be aware of such changes from an early stage, it would be equally useful to have some clarity of accompanying issues, such as Part 36 Offers, at the same time. Unfortunately, despite Lord Judge s comments that the decision has the great merits of.. providing simplicity and clarity, it is evident that this is unlikely to be the case and that there will be extensive satellite litigation, surrounding the costs consequences of Part 36 Offers for example, after 1 April 2013. For further information regarding this article, please contact Tom Danter at tomd@dolmans.co.uk or visit our website at Tom Danter Associate Dolmans Solicitors 8

DOLMANS FOCUS ON MESOTHELIOMA SCHEME OF LAST RESORT LAUNCHED FOR NEWLY DIAGNOSED CASES One of the perennial difficulties (for both Claimants and Defendants) in mesothelioma litigation is the situation where there are a number of employers during the course of the Claimant's employment history, some of which may have the lion's share of exposure, but have long since ceased trading and their insurers cannot be traced. Very often this leaves one employer as last man standing and following the statutory dis-application 1 of the case of Barker v Corus 2, this Defendant is required to meet the entire cost of the claim. Theoretically, this Defendant can then recoup those costs from other employers (or their insurers), albeit this is very much more often a hope than an actual result. The situation of untraced Defendants and/or their insurers causes, therefore, injustice to both parties, most obviously in situations where a mesothelioma victim is unable to identify a single extant former employer against whom a claim for damages can be made. Arguably, this has led to claims against employers (who still exist) upon the basis of very minimal or tenuous exposure histories. For a number of years, there have been calls for a scheme of last resort, akin to the Motor Insurers Bureau scheme in respect of untraced/uninsured drivers. This scheme was first mooted by Andrew Dismore MP (via a potential private member s bill) and has been discussed on a number of occasions since that time. Following an announcement by the DWP in July 2012, this scheme has now been enacted and will receive 300 million in funding over the next 10 years 3. 1 Via the Compensation Act 2006. 2 Which allowed for the apportionment of mesothelioma damages relative to the culpability of the Defendant(s) consistent with the case of Holtby v Brigham and Cowan which, perversely, still operates in the context of other types of divisible asbestos related disease. 3 According to the DWP press release, the insurance industry already pays 200m annually in mesothelioma claims. 9

DOLMANS FOCUS ON Operation of the Scheme As hinted at above, the scheme is intended to operate as a scheme of last resort in relation to Claimants who are unable to claim compensation for their mesothelioma from another source. The scheme is to be funded via a levy to be applied to the employer's liability insurance industry as a whole and will be run jointly between the ABI and the DWP. The scheme will operate in relation to all new diagnoses of mesothelioma from 25 July 2012 onwards. Diagnoses prior to that date will be outside the scheme and, therefore, presumably, subject to the existing situation of seeking to claim damages from extant employers and/or their insurers. In respect of all such new diagnoses of mesothelioma, in the event that an extant former employer and/or their insurers cannot be traced, a Claimant will be entitled to make a claim for scheme compensation via the DWP. Motivation Behind the Scheme The motivation behind the scheme is, obviously, to deal with the injustice of mesothelioma victims having no right of redress in circumstances where they cannot identify a successor to their former employer, a former trading employer or insurers of such an employer. In conjunction with the ELTO insurance tracing scheme, it is felt that this scheme will ensure that mesothelioma victims will now be able to obtain appropriate compensation in all circumstances, whether via the scheme, or via the tracing of insurers via the ELTO database (which has recently been expanded). Effects of the Scheme From the Defendant perspective, the primary potential beneficial effect of the scheme is the discouragement of tenuous claims in relation to very brief periods of employment or questionable histories of exposure. The problem of private sector employers becoming untraceable and/or ceasing trading, has been a significant problem for the public sector as a whole. The Writer has seen a number of cases, and is currently dealing with several more, where very brief histories of exposure within the public sector are being utilised to obtain damages largely because more culpable private sector employer/s is/are no longer available for a claim. 10

DOLMANS FOCUS ON Accordingly, the existence of this scheme might serve to reduce the numbers of such claims. What is not clear, however, is the extent to which the scheme will "run in tandem" with civil action damages, in the manner that the pneumoconiosis (Workers Compensation) Act (PWCA) scheme currently operates. The PWCA scheme was intended, to some extent, to be a scheme of last resort and was designed to deal with situations where a culpable party could not be identified in relation to asbestos exposure. Very often, however, a PWCA claim is made at the very outset, before the situation has been clarified in terms of viable Defendants. PWCA compensation is then recoupable from the ultimate Defendant in due course. What is not clear, therefore, is whether this scheme of last resort will give rise to similar issues of recoupment for Defendants subsequently identified in the context of the self same claim. What the existence of this scheme might conceivably cause debate on, however, is the existing regime of the identifiable Defendant being last man standing in the context of a given claim. This situation has arisen because of the aforementioned statutory dis-application of Barker (which was on the basis that Claimants would be under compensated if Defendants were entitled to apportion damages according to their relative culpability). The existence of a scheme of last resort in this situation tends to undermine this argument, although, Parliament would need to interfere given the manner in which Barker was overruled. Given that scheme compensation is likely to be lower than common law damages (see below), this does seem unlikely. The extent of compensation payable under the new scheme is equally unclear at present. Compensation payable under the PWCA scheme is fundamentally lower than common law damages and/or special damages. Accordingly, provided some kind of viable claim for common law damages can be made against an extant party, it seems to the Writer that the overwhelming likelihood is that Claimants will opt for that route, rather than the compensation scheme route. A more interesting question, perhaps, is what will happen when a Claimant is faced with a situation of a number of culpable (but non traceable) employments and a single traceable, but arguably non-culpable employment. One could speculate that in this situation, the existence of a fund of last resort might actually discourage a claim against that Defendant/employer. Accordingly, although the scheme has the potential to reduce the number of claims arising from low level exposure and/or short duration employment, whether in practice this has that effect is a matter of considerable speculation at present. 11

DOLMANS FOCUS ON Conclusions This scheme obviously represents justifiable good news for Claimants/victims. It will be perceived to level the playing field in terms of the so-called compensation lottery in the sense that Claimants will no longer be reliant upon whether their former employer is still trading in order to claim compensation. Arguably, this development, therefore, represents good news for certain Defendants, particularly those Defendants in the public sector and/or the quasi public sector (the former centralised power generation industry, for example) who are habitually named as Defendants often on the basis that other elements of the Claimant's history of employment cannot be taken forward in terms of relevant extant successors (the employers in question having ceased trading long ago). However, whether the scheme actually represents good news for such Defendant organisations is a matter of some speculation. The extent of compensation under the scheme is likely to be lower than common law damages and will, therefore, provide a disincentive to Claimants to claim under the scheme unless, genuinely, they have no option. However, the existence of such an option is likely to be evidentially dependent as much as anything else (ie - the Defendants ability to provide evidence as to culpable exposure becomes even more important). Given the findings of the Higher Courts in relation to any possible de minimis threshold in relation to asbestos exposure giving rise to mesothelioma (notably the Sienkiewicz and Willmore cases), the extent of exposure required to obtain damages remains very low (consistent, in fairness, with the potential aetiology of the condition). Accordingly, again, whether this actually represents good news for Defendants is a matter of some speculation. The other point to make is that any scheme reliant upon a levy upon the insurance industry will have to be paid for, to some extent, from current premiums. Peter Bennett Partner Dolmans Solicitors For further information regarding this article, please contact Peter Bennett at peterb@dolmans.co.uk or visit our website at 12

DOLMANS RECENT CASE UPDATE ATE Premium Hawksford Trustees Jersey Ltd v Stella Global UK Limited & Another [2012] EWCA Civ 987 The Claimant, H, had succeeded at Trial. The Defendant, S, appealed. H had been unable to obtain ATE cover when it sought it before the Trial, but, having succeeded at first instance, H was able to get cover on the appeal. The ATE premium was 394,638.00, which far exceeded the costs of the appeal on both sides. The ATE policy protected H against having to pay S s costs of the action and its costs of the appeal if the appeal were successful. S s appeal was unsuccessful. The Court had to consider, as a matter of principle, whether it could order S to pay, as part of H s costs, that part of the ATE premium which related to the costs of the claim up to and including the Trial. It was accepted that the part of the premium relating to the risk of having to pay S s costs of the appeal was recoverable. S.29 of the Access to Justice Act 1999 provides that Where in any proceedings a Costs Order is made in favour of any party who has taken out an insurance policy against the risk of incurring a liability in those proceedings, the costs payable to him may,.., include costs in respect of the premium of the policy. The Court held that the word proceedings in S.29 distinguishes between proceedings at Trial and on appeal. The risk that the incidence of costs at Trial might be changed by the Costs Order of the appeal might be a new risk of the appeal, but the costs liability and the Costs Order in question remained those of the Trial. The risk insured against was a risk of incurring a liability in the Trial proceedings, not in the appeal proceedings. Accordingly, the part of the premium which related to the costs up to and including Trial was not recoverable. Apportionment of Liability Alexander v (1) Freshwater Properties Limited (2) Christopher Place (t/a Place Construction) [2012] EWCA Civ 1048 The Claimant suffered a traumatic partial amputation of her index finger when it was caught in the front door of the block of flats where she lived. The First Defendant was the landlord. The Second Defendant was a builder contracted to carry out refurbishments, including the removal, polishing and replacement of the exterior handles on the front door. The Claimant s case was that the self closing mechanism on the door was defective, such that it was necessary to pull the door shut. There was a sign to that effect on the door. The removal of the exterior handle made it necessary to pull the door closed by grasping its edge, taking care to move one s fingers out of the way before it closed on them, and this created a dangerous situation. 13

DOLMANS RECENT CASE UPDATE The Trial Judge found the First Defendant 25% liable and the Second Defendant 75% liable, on the basis that the process of re-polishing the door handle and putting it back, rather than replacing it, was under the control of the Second Defendant. Whilst the Court of Appeal accepted that this work was under the control of the Second Defendant, that was not a satisfactory basis for finding that the Second Defendant was more responsible. The danger arose from the combination of a defective self-closing mechanism and the absence of the exterior handle. Both Defendants were parties to the decision to polish and replace the handle and both knew that would take some time. Both were aware that the self closing mechanism was defective and that residents were encouraged to pull the door shut. Both should have been aware that once the handle was removed this could be done by grasping the edge of the door. The Second Defendant could have fitted a temporary handle and, if he failed to do so, the First Defendant could have asked him to fit one. Accordingly, the Defendants were equally responsible. Costs - Part 36 Offer SG v Hewitt [2012] EWCA Civ 1053 In 2003 the Claimant, then aged 6, was injured in a road traffic accident. Medical and other reports were obtained with a view to claiming damages, but the Experts were unable to predict what the impact of the injury would be until the Claimant matured. In April 2009, the Defendant made a pre-action Part 36 Offer in the sum of 500,000.00. The Claimant accepted the offer in 2011. On the issue of costs, both parties contended that their costs incurred from 23 April 2009, 21 days after the offer was made, should be paid by the other party. At first instance, the Claimant was ordered to pay the Defendant s costs incurred from 23 April 2009. The Claimant appealed. The normal Order, pursuant to CPR 36.10 (5), where a Part 36 Offer is accepted outside the relevant period, in this case 21 days, is that the offeree will be liable for the offeror s costs for the period from the date of the expiry of the relevant period to the date of acceptance, but the Court has a discretion to depart from this. It was held that a Court has to make the normal Order for costs, unless it considers it unjust to do so. In deciding whether it was unjust, the Court has to take into account all the circumstances of the case. 14

DOLMANS RECENT CASE UPDATE The Court of Appeal held that on the facts of this case, it was unjust to make the normal Order for costs. At the time the offer was made, it would have been difficult for the Claimant s advisers to have advised acceptance when there was a reasonable alternative strategy available. There was considerable doubt that it would have been possible to obtain Court approval of the settlement until the Claimant reached adolescence. The costs incurred after the offer were related to investigating the suitability of the offer and obtaining the evidence necessary to get approval. The offer was made before the Claimant issued proceedings at a time when the prognosis was uncertain for a reason which was necessarily present due to the development process of the Claimant s frontal lobe damage which involves initial damage and damage developing as the brain evolves in puberty/adolescence. The resulting lack of safe prognosis did not fit easily under the contingency of litigation rubric. Accordingly, the Claimant s appeal was allowed and the Claimant was awarded his costs throughout. Fraud - Contempt of Court Havering London Borough Council v (1) Mark Bowyer (2) James Jones (3) Richard Bowyer [2012] 26.07.12 & EWHC 2237 QBD (Admin) The Claimant Local Authority was successful in its contempt proceedings against the three Defendants. The Claimant, in the original action (referred to in this summary as the First Defendant), had brought a personal injury claim against the Local Authority after allegedly tripping in a pothole in one of its parks. The Local Authority initially admitted liability, but when the medical report revealed that the contemporaneous medical records were inconsistent with the allegations made (suggesting that he had, in fact, been injured as a result of falling from a wall in the park), the Local Authority withdrew its admission of liability. 15

DOLMANS RECENT CASE UPDATE The First Defendant, nevertheless, issued the claim, verifying his Particulars of Claim with a Statement of Truth, and sought damages on the basis that he had tripped in a pothole. Witness Statements were served on behalf of the First Defendant, Second Defendant (who was with the First Defendant at the time of the alleged accident) and Third Defendant (the First Defendant s father), which were all supported by a signed Statement of Truth, and all asserting that the First Defendant had fallen in a pothole. Following exchange of witness evidence and shortly before Trial, the First Defendant abandoned his claim. The Local Authority successfully applied for permission to bring contempt proceedings against all three Defendants, on the basis that they had interfered with the administration of justice and knowingly issued, supported or persisted with a false claim supported by false Statements which were known to be untrue. The First and Second Defendants largely admitted their contempt, but the Third Defendant opposed the Local Authority's Application. He contended that he had no direct knowledge of what had taken place as he was not present on the night of the accident. He submitted that the Statements he had made were not knowingly untrue when he made them as he had still believed that his son s personal injury claim was genuine. He even asserted that when the Second Claimant repeatedly called for an ambulance, he had mentioned a fall from a wall in order that a crew was dispatched more quickly. The Court held the Third Defendant to be in contempt of Court, and found that he was not a credible witness, and what he had said under cross-examination was inconsistent with what he had said in his Affidavit (in which he had said he believed his son s claim to be genuine, despite being prepared 6 months after the discontinuance of the personal injury claim). The inconsistencies in the Third Defendant s evidence indicated a willingness on his part to make things up to bolster his own account. He had known that his son s personal injury action was fraudulent and he had taken active steps to support it dishonestly. Accordingly, he was guilty of contempt. The Divisional Court sentenced the three Defendants to prison for contempt of Court. The First Defendant was sentenced to two months; his friend, the Second Defendant (who supported the fraud), for one month and the Third Defendant, who was considered by the Court to be the driving force behind the claim, was sentenced to four months imprisonment. 16

DOLMANS RECENT CASE UPDATE Landlord and Tenant - Occupiers Liability Act 1957 / Defective Premises Act 1972 Gillian Drysdale v Joanne Hedges [2012] QBD 27.07.12 The Claimant tenant claimed damages after falling whilst slipping on steps of a property she was renting from the landlord Defendant. The front door of the property was accessed via a concrete path and three steps. The landlord had painted the steps with outdoor paint to improve their appearance. Whilst carrying a box up the steps to the property in the rain, the Claimant slipped on one of the steps and fell over a wall, sustaining serious back injuries. The Claimant alleged that the steps were unduly slippery because they had been painted and because of the rain. The issues for consideration were whether the Defendant was liable under section 2 of the Occupiers' Liability Act 1957, or under section 4 in breach of the Defective Premises Act 1972 and/or breach of covenant, or in breach of duty at common law. The duty under the Occupiers Liability Act 1957 (ie - an occupier of premises owes a duty to take reasonable care to ensure that a visitor is reasonably safe when using the premises for the purposes for which the visitor has been invited or permitted to be there) did not arise because the Defendant was not the occupier of the steps as they had been demised to the tenant under the tenancy. The duty under the Defective Premises Act 1972 (ie - a landlord owes a duty to all persons to take reasonable care to ensure that they are reasonably safe from personal injury caused by his failure to comply with his repairing obligations) also did not arise as neither the wall nor steps were out of repair and there was no duty on the landlord to install a handrail. The claim under common law also failed as a landlord who lets premises in a dangerous condition owes neither a duty to remedy the defect nor a duty of care to any third party who might be injured. That duty of care had not been breached as although the presence of paint on the steps significantly increased their slipperiness, it had not been unreasonable for the landlord to paint them using outdoor paint. The claim was dismissed. 17

DOLMANS RECENT CASE UPDATE Personal Injury - Forseeability of Injury Cornish Glennroy Blair-Ford v CRS Adventures [2012] EWHC 2360 (QB) The Defendant outdoor pursuit company was found not liable for injuries sustained by a Claimant teacher who had suffered catastrophic injuries whilst partaking in a welly-wanging competition it had organised. The Claimant was attending a school trip on Dartmoor when he broke his neck whilst taking part in the sporting event. To provide some form of handicapping in order to make it fairer for pupils, the Claimant was told to throw the wellington boot backwards through his legs. However as he swung his boot, he was propelled head-first to the ground, resulting in him fracturing his neck and sustaining permanent tetraplegia. The Claimant argued that he had been asked by the Defendant s staff to throw the welly using an unsafe method and that his injuries were a logical and foreseeable consequence of a 6ft tall, 15 stone, teacher throwing the welly backwards through his legs. He also alleged that CRS Adventures had failed in its duty of care by not carrying out an assessment of the risks and, if it had done so, the method of throw would have been modified. The Defendant argued that the activity was subject to a dynamic risk assessment and no further action was identifiable. The Court found that the incident was a tragic and freak accident for which no blame could be established. It found that there was no foreseeable real risk of injury from welly-wanging and was at most a mere possibility which would never influence the mind of a reasonable man. The claim was dismissed. For further information on any of the above cases, please contact Clare Hoskins at clareh@dolmans.co.uk or Amanda Evans at amandae@dolmans.co.uk Teleri Davies at telerid@dolmans.co.uk or 18

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 1991. 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 1980. 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 clareh@dolmans.co.uk 19

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 bethanw@dolmans.co.uk or visit our website at One Kingsway Cardiff CF10 3DS Tel: 029 2034 5531 20