Legal Watch: Personal Injury 22nd April 2015 Issue: 060
Employers liability In Legal Watch: Personal Injury 49 we reported the case of Dusek and others v Stormharbour Securities LLP (2015) as an illustration how an employer may attract liability if it fails to enquire adequately about the safety of travel arrangements made for an employee. We now have a similar case (but a different outcome) in Cassley and others v GMP Securities Europe LLP and another (2015) EWHC 722 (QB). The deceased was a financier who, in the course of his employment with the first defendant, had taken a private charter flight from Cameroon to the Republic of the Congo. The charterer, the second defendant, was a mining company and the carrier was a Congolese aviation company. The deceased had been invited to fly with the charterer s board of directors to inspect a mining site on behalf of his employer. Before the flight, the charterer indicated that the trip involved some risk and asked the deceased s employer to waive liability in the event of his injury or death. Although the employer signed a waiver, it was of no legal effect because the charterer omitted to countersign it. The primary cause of the crash was pilot error. After settling with the carrier, the claimants, the deceased s dependants, claimed that his employer and the charterer had breached their duty of care to him. The employer denied liability, arguing that it was entitled to rely on the charterer, which had engaged the carrier as a last-minute substitution and had assumed a duty to the deceased. The charterer denied owing the deceased any duty but claimed that, if it did, it had discharged it by exercising care in selecting the carrier. The carrier had been recommended to it, possessed the requisite documentation and insurance, and had successfully flown to the same destination once before for the charterer. There were also three independent audits in its favour. It did, however, have an inadequate culture of safety and was on an EU banned list. In this issue: Employers liability Employers liability/specific disclosure Civil procedure Jackson/Mitchell/Denton Pre-action protocols Watch this space Events Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next few months: The Major Bodily Injury Group (MBIG) Spring Seminar 28.04.15 The Wellcome Collection, London There is a limited number of seats still available for this event, so to avoid disappointment book your place now.
The central issues were the nature and scope of the duty of care owed to the deceased by his employer, and whether it was in breach; and whether the charterer had assumed a responsibility to the deceased or otherwise owed him a duty of care, the nature and scope of any such duty, and whether there had been a breach. Dismissing the claims, the High Court judge held that the deceased s employer owed him a common law duty to provide him with a safe place and system of work. Travel on private charter flights to remote locations was an integral part of his job, and his employer also had a non-delegable duty to take reasonable care to see that he was reasonably safe when travelling in the course of his employment. However, it had taken no steps to discharge that duty. Although it was entitled to rely to a large extent on the charterer, it should have satisfied itself that the trip was reasonably safe. It should have asked the charterer about the carrier, the route, and how it had satisfied itself that the proposed flight was safe. It should have asked whether the carrier had an air operator s certificate, what its insurance position was, whether it had been recommended, and whether the charterer had used it before to its satisfaction. It should also have checked the Foreign and Commonwealth Office website for information about Cameroon and the Republic of the Congo. It had done none of those things and was thus in breach of its duty of care. the claimants case failed on causation revealed that it had been recommended by other pilots, had the requisite documentation and insurance, and had successfully flown to that destination before. The flight was relatively low-risk and the positive recommendations in the audits would have been persuasive. The charterer owed a duty of care to the deceased, both under the test in Caparo (1990) and because it had had assumed a responsibility to him. It had organised the trip and had complete control over the arrangements. However, it was obliged only to take reasonable care in selecting the carrier. Beyond that, it was not liable for any negligence on the part of the carrier. The liability waiver did not affect the existence or scope of its duty; it had no legal effect and would, in any event, have offended against S2 Unfair Contract Terms Act 1977. The charterer had discharged its duty, having amassed much information about the carrier before the flight. The fact that it did not know that the carrier was on the banned list and had proceeded without certain pieces of information made no difference. The existence of other information did not mean that what it had gathered was insufficient. It had taken reasonable steps to satisfy itself that the carrier was appropriate, and the previous successful flight was an important element of its decision. It had no duty to investigate minutiae such as the manner in which the pilots intended to execute the flight. It was simply obliged to identify and evaluate any particular risks associated with the proposed flight and to select a reputable carrier, and it had done that. However, the claimants case failed on causation. They argued that proper enquiries would have revealed that the carrier had been banned by the EU and was inherently unsafe. However, the deceased s employer had not been told, and had no reasonable way of knowing, that the carrier had been changed at the last minute. Had it made enquiries, they would have been about the original carrier, and the answers would have been satisfactory. They would not have led it to prevent the deceased from boarding the flight. In any event, enquiries about the actual carrier would have 02
Employers liability/specific disclosure The issue in Senior v Rock UK Adventure Centres Ltd and another [Lawtel 22/04/2015] was whether a judge could order disclosure of the defendant s EL insurance cover in a case where damages might be in the form of both a lump sum and periodical payments. The claimant had been seriously injured in a climbing accident in the course of his employment with the defendant. Its liability was not disputed and judgment was entered against it. The trial for assessment of damages was due to begin in July 2015. The claimant s schedule of loss specified that he sought damages in the form of a lump sum, as well as an order for periodical payments. The claimant argued that it was appropriate to require the company to disclose details of its insurance cover because, in order for the trial judge to decide if it was appropriate to make any periodical payment order, he had to be satisfied that continuity of payment under such an order was reasonably secure....there was no prejudice to the company in requiring it to provide such information... Allowing the application, the County Court judge held that the court clearly had jurisdiction to make the order sought. The level of the defendant company s cover was important. The trial judge would want to know the details of such cover and, whilst there was no prejudice to the company in requiring it to provide such information, the failure to have such information available would likely result in problems arising at trial. In those circumstances, it was appropriate to order the company to provide details of its insurance cover. 03
Civil procedure The case of Duffy (Protected Party) v Secretary of State for Health (2015) EWHC 867 (QB) illustrates how reluctant a court may now be to vacate a trial date, even where the other party agrees to the adjournment. The claimant had brought a claim through her mother and litigation friend alleging that her severe physical and mental disability had been caused by the staff at the hospital where she was born and the community midwives who had been responsible for checking on her progress after her discharge from hospital. The claimant alleged particularly that early signs of hypoglycaemia were missed or not acted upon at the hospital and led to an epileptic encephalopathy. The respondent admitted breaches of duty but denied causation. The applicant s case was supported by a consultant paediatric neurologist ( the expert ). Shortly before the trial it had been reported in a newspaper that the expert had taken cocaine, and he was subsequently suspended by the General Medical Council pending an investigation. The applicant applied to adjourn the trial just over three weeks before it was due to start on the basis of expert s unavailability. The expert s witness statement stated that the episode had had a marked effect on his health and had affected his concentration, that he would not be able to advise and assist the court appropriately on the issues and that his GP had certified his unfitness to undertake any work. The GP s certificate was not attached to the witness statement. The defendant consented to the application....fixed trial dates were regarded as immovable except in the most exceptional and compelling circumstances Allowing the application the High Court judge held that although the defendant had consented to the application the parties consent did not bind the court to agreeing to an adjournment. Since the implementation of the Woolf reforms, fixed trial dates were regarded as immovable except in the most exceptional and compelling circumstances. Cases involving those who had sustained serious brain damage were always difficult and sensitive; the parties had often waited a long time for the case to get to court and therefore the court was generally unwilling to grant an adjournment except in compelling circumstances. Adjournments also had an impact on other cases waiting to be heard. Whilst the GP s report might have stated that the expert was unfit to undertake any work it did not say that he was unable either to attend a court hearing to give evidence on the issues in question or to do so by video link. The medical reasons for the expert s unavailability as a witness were unpersuasive and would not have excused the attendance of a witness either in person or by video link. The medical appraisal of the expert s condition was second-hand and had not been given by an expert. The claimant s case was very difficult and raised complex causation issues. That did not mean that the claimant was presented with insuperable obstacles. However, the expert had given a very careful and thorough appraisal of the background to the claimant s case and was supportive of it. The time was too short to assess the expert s inability to give evidence at the trial. But because of the difficult nature of the case and his close analysis of it, it was wrong in the circumstances to insist that the claimant should go ahead with the trial with an apparently reluctant expert witness on a matter that was so important to her. The expert s oral articulation of his supportive view would be important. In the circumstances there was no alternative but to grant an adjournment. Also under this heading comes a warning via the Technology and Construction Court (TCC) that a failure to properly complete a pre-trial checklist/questionnaire (PTQ) will be 04
considered a substantive and not trivial non-compliance with the procedural rules. In the case of Waterman Transport Services Ltd v Torchwood Properties Ltd [Lawtel 21/04/2015] an unless order had been made requiring the defendant to file and serve its PTQ by a specified date. A PTQ was filed but save for dealing with expert and factual witness evidence very little of the questionnaire had been completed. The claimant applied for default judgment and to strike out the defendant s counterclaim on the basis that there had been non-compliance with the unless order....(a) pre-trial questionnaire was important the instant non-compliance was not a minor procedural noncompliance On the issue of the PTQ the High Court judge held that it contained little or no substantive information to assist the court: a pre-trial questionnaire was important in the TCC in pre-trial reviews. The instant non-compliance was not a minor procedural non-compliance: it followed that the defence should be automatically struck out on the basis of substantive non-compliance. However, as the respondent had been largely unrepresented, it was appropriate to give it a short opportunity to apply for relief from sanctions, on condition of a substantial payment on account of costs. 05
Jackson/Mitchell/Denton Although the courts have undoubtedly been more lenient with defaulting parties since the guidance in Denton was handed down, the case of Buswell v Symes and another [Lawtel 22/04/2015] shows that compliance with rules and practice directions is still important. The claimant claimed damages for personal injury and other losses arising out of a road traffic accident in July 2011. His motorcycle had collided with a tractor emerging from a field, driven by the first defendant. The first defendant was a selfemployed contractor to the farm business, which owned and occupied the field. Part of the claimant s case, raised at an early stage, was that the first defendant should have used a different exit. In March 2015 the parties experts consulted again to consider the existence of alternative exits from the field, and produced a joint expert report. On 8 April the second defendant produced a witness statement from a new witness, the farm manager, and applied to rely on that evidence. It dealt with the layout of the farm at the time of the accident and alternative exits. Case management directions had provided that evidence was not to be permitted at trial if served late, except with the permission of the court. The second defendant applied for relief from sanctions and to be permitted to rely on the evidence. The claimant argued that relief from sanctions should not be granted because the evidence had only been produced after the experts had already met at the site and had appeared six months after the deadline for producing witness statements and four weeks before the trial was due to start. Dismissing the application, the County Court judge held that the court had to identify the seriousness or significance of the failure to comply with CPR 3.9(1). It then had to consider why the failure or default had occurred. The third stage was to consider all the circumstances of the case so as to enable the court to deal justly with the application, including a consideration of costs, and the need to enforce compliance with rules, practice directions and court orders. The second defendant was seeking to rely on the evidence of a new witness. That evidence should have been identified much earlier. As soon as it was appreciated that the farm s layout was an important issue, and that the first defendant was a self-employed contractor, it must have been obvious that the views of a person with responsibility for the farm business should have been urgently sought. The new evidence was almost six months late, and had been produced only four weeks before the trial was due to start. It was a serious breach. It had occurred because the litigator had failed to investigate the issues in the case with reasonable promptness. Somebody more senior than the first defendant should have been identified earlier and that could have been done at very little expense. To allow the application would drive a coach and horses through the Denton principles Further, the claimant had been put on the back foot at a very late stage. His solicitor would have to visit the farm less than two weeks before the trial, and as the defendants had produced contradictory evidence from their own witnesses, it was difficult to know what other problems might arise. It was not fair to allow the evidence to be adduced at such a late stage. To allow the application would drive a coach and horses through the Denton principles. 06
Pre-action protocols Many of the pre-action protocols (PAPs) and also the Practice Direction Pre-Action Conduct (PDPAC) have been amended with effect from 6 April 2015. The PAPs include those for personal injury, clinical disputes and low value RTA and EL/PL claims. The amendments largely restate and re-emphasise what the PAPs and PDPAC already said. The thrust is that litigation is to be seen as a last resort. There are a number of points worth noting: 1. Parties are expected to have exchanged sufficient information to: understand each other s position make decisions about how to proceed try to settle the issues without proceedings consider a form of Alternative Dispute Resolution (ADR) to assist with settlement support the efficient management of those proceedings; and reduce the costs of resolving the dispute (Emphasis added) These are recurring themes within all of the amended PAPs but how much one party may expect of the other is still subject to proportionality. Where liability has been admitted under the PAP for personal injury claims the claimant should send to the defendant: any medical reports obtained under this protocol on which the claimant relies; and a schedule of any past and future expenses and losses which are claimed, even if the schedule is necessarily provisional. The schedule should contain as much detail as reasonably practicable and should identify those losses that are on-going. If the schedule is likely to be updated before the case is concluded, it should say so (Emphasis added) Historically this requirement has been honoured in the breach and so it will be interesting to see if the courts do become more critical of claimants who withhold information during the pre-litigation phase. 2. The parties are reminded that the court must give permission before expert evidence can be relied on and experts fees may be limited. 3. ADR is defined for the first time to include: mediation, a third party facilitating a resolution arbitration, a third party deciding the dispute early neutral evaluation, a third party giving an informed opinion on the dispute; and ombudsmen schemes No mention is made of negotiation. A party s silence in response to an invitation to participate or a refusal to participate in ADR might be considered unreasonable by the court and could lead to the court ordering that party to pay additional court costs. 4. At the end of the PAP period, if settlement has not been possible, the parties are still required to carry out a stocktake to see if proceedings can be avoided and at least seek to narrow the issues in dispute before the claimant issues proceedings. 5. Non-compliance with the PDPAC or a PAP can result in one or more of various sanctions being imposed in costs and/or interest. 07
Watch this space Guideline hourly rates for costs Within just a few minutes of releasing the sister publication to this periodical, Legal Watch: What s on the Horizon, the Lord Chancellor issued a statement regarding the long awaited updating of solicitors guideline hourly rates. We had just commented that there had been no news on this subject since 28 July 2014. The long and the short of it is that the Lord Chancellor has concluded that there are neither the resources nor the mechanism for determining what the hourly rates should be and (t)he existing rates will therefore remain in force for the foreseeable future, and will remain a component in the assessment of costs, along with the application by the judiciary of proportionality and costs management. It is interesting to read that as part of the justification for this decision the Lord Chancellor noted a trend towards the greater use of fixed costs in litigation. I have long advocated their wider application, and will continue to press this point to ministers and others in the hope that this important element of the Jackson reforms is implemented. Publications If you would like to receive any of the below, please email 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: 01908 298216 E: gro@greenwoods-solicitors.com To unsubscribe from this newsletter please email: crm@greenwoods-solicitors.com www.greenwoods-solicitors.com www.plexuslaw.co.uk 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: OC315763. Registered office: 12 Dingwall Road, Croydon, CR0 2NA. Parabis Law LLP is authorised and regulated by the SRA.