PI Practitioner – each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area

Pleading Fraud

• Three Rivers v. Bank of England [2003] 2 AC 1 at 291. Per Lord Millet, an allegation of fraud or dishonesty must be distinctly alleged and proven; unequivocal; and particularised so that the other party knows precisely the case that he must meet.

• Kearsley v. Klarfeld [2005] EWCA Civ 1510, it is not necessary for the defence in a low velocity impact to include a substantive allegation of fraud or fabrication. In fact 'there was no burden on...[the defendant] to prove fraud. It was sufficient that they set out fully the facts from which they would be inviting the Judge to draw the inference that the plaintiff had not in fact suffered the injuries he asserted."

May 4, 2012 · editorial · Comments Closed
Posted in: Cases

Summary of Recent Cases – Civil Procedure

No error in judge's decision to refuse to admit new expert evidence where there had already been a joint experts' report.
Cecil Guntrip v Cheney Coaches Ltd [2012] EWCA Civ 392, 14/03/12
The Court accepted that a DJ had been correct in refusing the C permission to rely on a new expert report on the eve of trial and where a joint expert report had already been prepared and the C's expert had appeared to change his opinion in favour of the D. It was held that in the context of trial management it was good if an expert changed his opinion sooner rather than later. Expert shopping was not to be encouraged. The DJ had correctly thought about both parties when refusing the initial application and was mindful of the delays incurs and the costs consequences that would ensue were the C granted permission to rely on a further report. Though a circuit judge had overturned the DJ's decision on the basis that if he did not do so the C's case would effectively fail, this did not mean the DJ's decision had been wrong.

It was not appropriate to grant a late application for non-party disclosure in proceedings for committal
Sandhu v Sidhu, Ch D, 14/03/12
It was held that a committal application alleging a false statement of truth was alleging a public as opposed to a private wrong and that there should be rigorous control of the conduct of such proceedings brought in the public interest. If the application were to be granted there was a high likelihood that there would be a further adjournment of the trial. It was not right that proceedings in the public interest should be conducted in such a way as to produce material at the last minute where a respondent was facing the threat of imprisonment.

A judge had failed to give adequate reasons for his decision that the owner of a livery yard was responsible for a groom's injury in a riding accident and therefore the judgment could not stand
Marta Olszewska Kozlowska v Judi Thurloe (T/A Judi Thurloe Sports Horses), CA (Civ Div), 01/03/12
Judges were required to give sufficient reasons to enable a losing party to understand why they had lost and to enable an appellate court to judge whether the conclusion was rational. The D had no idea why her evidence and of her supporting witnesses had been rejected, and the instant court was not able to assess whether the reasons the judge had were rational. The judgment was deficient in that the judge's decisions on several important matters were not adequately explained. The duty to give reasons was not intended to be a heavy burden on a judge. However, where the evidence on a particular issue contained several strands, it might be necessary to mention them and explain why, even though more than one witness or document supported a contention, the judge was rejecting it. The need for explanation would be more obvious where, as in the instant case, the judge accepted parts of the evidence of a witness but rejected others. Where an account in an apparently contemporaneous document was to be rejected, it would usually be necessary to deal with it.

Claims brought by servicemen who alleged that they had suffered personal injuries as a result of exposure to radiation during nuclear tests carried out by the MOD were time-barred under the Limitation Act 1980. By the time a C issued proceedings he had, in law, to have the knowledge required by s.14(1)(b) of the Act. It was a legal impossibility for a C to lack such knowledge after he had issued proceedings.
AB & Others v Ministry of Defence, [2012] UKSC 9, 14/03/12
By the time a C issued proceedings he had, pursuant to s.14(1)(b), to have knowledge of the fact that his injuries were attributable to the D's negligence, nuisance, or breach of duty. It was a legal impossibility for a C to lack such knowledge after he had issued proceedings. The statement of truth could be regarded as an explicit recognition by the C that he had knowledge that his injuries were attributable to the D. It was clear that the inquiry mandated by s.14(1) was retrospective and was aimed at discovering whether the C first had the requisite knowledge within the three years prior to the date of issue. It was heretical to assert that a C could escape the time bar by establishing that, even after his claim had been issued, he remained in a state of ignorance as to whether his injuries were attributable to the D. In any event, the claims had no real prospect of success and it would have been absurd for the CA to have exercised its discretion under s.33 so as to allow them to proceed.

May 1, 2012 · editorial · Comments Closed
Posted in: Cases

Summary of Recent Cases – Costs

No cases reported this month.

April 27, 2012 · editorial · Comments Closed
Posted in: Cases

Summary of Recent Cases – Substantive Law

SUMMARY OF RECENT CASES - PROFESSIONAL AND CLINICAL NEGLIGENCE

Judge Entitled To Prefer Patient's Evidence To That Of GP As To Whether A Consultation Took Place
Burnett v. Lynch, CA, 21/03/12
The Court of Appeal dismissed the appellant GP's appeal against a decision giving judgment for the respondent patient in the underlying clinical negligence claim for damages arising out of the delayed diagnosis of breast cancer. It was the patient's case that she had a consultation with the GP in 2006 during which the GP had examined her breast and wrongly diagnosed it as a blocked milk duct and thereby delaying the diagnosis and treatment of her breast cancer. The GP denied that such consultation had taken place, on grounds there were no notes of such consultation and had she seen such a lump, she would have referred the patient to a breast clinic. The Court of Appeal held that the Judge had been entitled to prefer the evidence of the patient as to whether the consultation had taken place and at which the GP had misdiagnosed the lump. In particular, the Court of Appeal held that in deciding that both witnesses were truthful, it was open to the Judge to accept part of such witness' evidence and reject other parts.

April 23, 2012 · editorial · Comments Closed
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Summary of Recent Cases – Substantive Law

DAMAGES

Privy Council Considers Correct Approach To Discount And Adjustment Factors In Personal Injury Claims
Simon v. Helmot, PC (Guernsey), 07/03/12
The Privy Council held that if the evidence established that inflation would affect different heads of loss in different ways and that as a result, a given head of loss would be under-compensated for, it may be appropriate for different discount rates to be applied to different heads of loss. In addition, the Privy Counsel held that it may be appropriate to apply an adjustment to lump a sum which adjustment had the effect of increasing the multiplier if the evidence established that such an adjustment was required to ensure that the lump sum would be large enough to meet future losses (having regard to the effects of the principles of accelerated receipt). The Privy Council thus held that in the underlying personal injury case, the Court of Appeal of Guernsey had been correct to apply a discount rate of -1.5% for the earnings-related future losses and a discount rate of 0.5% for all other future losses.

April 19, 2012 · editorial · Comments Closed
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Summary of Recent Cases – Substantive Law

PERSONAL INJURY & FATAL ACCIDENTS

A Company Operating An Indoor Rock-Climbing Wall Was Liable For Injuries Sustained By A Climber Who Had Jumped Down Off The Wall
Pinchbeck v. Craggy Island Ltd, QBD, 15/03/12
HHJ Curran QC (sitting as a Deputy High Court Judge) held that the defendant company that operated an indoor rock-climbing had breached its duty of care owed to the claimant climber who had jumped down from the climbing wall and injured her ankle. HHJ Curran QC held that the defendant had breached its duty of care in not providing the claimant with appropriate guidance on how to descend the wall. HHJ Curran QC further held that as the defendant had not taken taken all reasonable care for the claimant's safety, the maxim of volenti fit injuria had very limited, if any, application. However, it was held that the claimant was contributorily negligent in that she had jumped rather than climbed down. The claimant's contributory negligence was assessed at one-third.

A local authority did not owe a non-delegable duty of care to a pupil at its school to ensure her safety when she attended a swimming lesson arranged by the school but provided by a third party
Annie Rachel Woodland (By her Father & Litigation Friend Ian Woodland) v Essex County Council [2012], EWCA Civ 239, 09/03/12
It was held that the Court had not been wrong in striking out the C's claim (Laws L.J dissenting). There was no good reason to move the law on from where it currently stood. A development along the lines sought by the C had to be a matter for the Supreme Court. It was not open to the Court to find that there was a relevant non-delegable duty of care which would lead to liability of the local authority in the event of negligence being found by the provider of the swimming lessons, the lifeguard or the swimming teacher. There had been nothing before the Court to justify such an extension of the existing law. There was no material on the basis of which the court could conclude that the imposition of a duty would be fair, just and reasonable.

MIB Did Not Incur A Relevant Liability For Injury Caused By An Uninsured Driver Where The Accident Occurred On A Private Paddock
Clarke v. (1) Clarke (2) Motor Insurers' Bureau, QBD, 30/03/12
Judge McKenna (sitting as a Deputy High Court Judge) held that on the balance of probabilities, the claimant had been struck by a vehicle being driven by the uninsured first defendant's vehicle on a private paddock and not on a public road. Accordingly, it was held that the accident had not occurred as a result of use of a vehicle on a public road and thus that the claimant's claim was not in respect of a relevant liability which the MIB was required to meet.

April 16, 2012 · editorial · Comments Closed
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Industry News

High Court finds that beaches can be registered as 'village greens'...
Independent

FSA urges firms to contact PPI victims before they even complain...
City Wire

April 13, 2012 · editorial · Comments Closed
Posted in: News

Industry News

Law firm proposes updated 'Whiplash Book' to tackle claims 'epidemic...
Insurance Post

Jackson calls for lawyers to be educated about mediation...
Law Society Gazette

SRA licences first Alternative Business Structures...
Solicitors Regulation Authority

April 10, 2012 · editorial · Comments Closed
Posted in: News

PI Practitioner – each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area

Vicarious Liability For Abuse

EL v Children's Society [2012] EWHC 365 (QB) - the Claimant claimed damages for sexual abuse suffered while he was resident at one of the Defendant's (D) children' homes in the 1950s. The abuse was perpetrated by the son of the houseparents (B). The Claimant issued against B himself and against D. The question was whether D was vicariously liable for the actions of B when they had employed B's parents as houseparents and not B himself.

EL submitted that B had had responsibilities within the home; that he had been left in charge when his parents were away and that since he had contributed to discharging the houseparents' care obligation B's abuse was closely connected with his role at the home. Therefore, while B was never employed by D, D ought still to be vicariously liable.

Held: by Haddon-Cave J, that the doctrine of vicarious liability was a principle of strict liability and therefore it was important to keep it within clear limits. Lister v Hesley Hall Ltd [2001] UKHL 22, [2002] 1 AC 215 and Various Claimants v Institute of the Brothers of the Christian Schools [2010] EWCA Civ 1106 were applied. It was not sufficient that the employment by D allowed the perpetrator an opportunity to commit the tort. The further questions where whether the employer had entrusted to the perpetrator the performance which it, the employer, had undertaken [i.e. in this case care of the children]; and if so whether there was a sufficiently close relationship between the torts and the tortfeasor's employment to make it fair and just to hold the employer liable. On the facts, the abuse had not been carried out by B when employed as temporary relief cover for his parents. On the facts, the test in Lister and Various Claimants was not met.

April 4, 2012 · editorial · Comments Closed
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Summary of Recent Cases – Civil Procedure

Respondents who admitted brining a fraudulent personal injury action were committed to 6 weeks imprisonment

Liverpool Victoria Insurance Company Limited v Bashir & Ors, (2012), QBD (Admin), 28/02/12

The applicant insurance company applied for the committal of 4 respondents for contempt of court. The respondents had brought a claim for car damage and personal injury. The Insurance company alleged that the claim was fraudulent and the accident was contrived. Two of the respondents had 2 young children, one of which was only 4 months old. The court held that the conduct of the respondents had to be deterred because it struck at the heart of the justice system and affected the public as a whole in increasing the cost of insurance policies and therefore there was no alternative but to impose custodial sentences. However the court took into account the fact that they had admitted to the fraud and, more significantly, that they had willingly assisted the insurer in disclosing the relevant information. Where in normal circumstances the appropriate sentence would have been one of 12 months in custody, the court imposed a suspended sentence of 6 weeks on 2 of the respondents in light of this mitigating conduct. Due to the lessor involvement of the latter 2 respondents, a suspended sentence of 6 weeks was also judged appropriate.

Where Counsel was concerned that evidence was being adduced that was a departure from a pleaded case, it was incumbent upon him to invite the trial judge to rule on that objection and insist on the ruling. It was therefore too late to raise the point on appeal.

Melanie Hawksworth v (1) Chief Constable of Staffordshire (2) Staffordshire Police Authority (2012), CA, (Civ Div), 16/02/12

The appellant employee appealed against a decision dismissing her personal injury claim arising out of the alleged negligence of the respondent employer. It was apparent that the approach of counsel for the employee at trial was insufficient; if she had been concerned that the respondent would adduce evidence and seek to rely on it in departure from the pleaded case, it was incumbent on her to invite the trial judge to rule on that objection. Accordingly, she ought to have insisted on a ruling at trial. If such an objection had been taken, the respondent in turn could have applied for an amendment if necessary. The appellant had had an opportunity to raise the point at trial and had failed to do so. It was now too late to complain. In any event, the trial judge had rejected the appellant's expert's evidence more or less in its entirety and the trial judge's conclusion that appellant's expert's evidence was insufficient to satisfy her claim had been a free-standing conclusion.

An application to bring contempt proceedings against 7 individuals who it was claimed had given false information about car hire rates was granted

Accident Exchange Ltd v Nathan John George-Broom & 6 Ors [2012] EWHC 207 (Admin)

The evidence against the respondents was ostensibly strong. There appeared to be a basis for saying that the respondents in their individual cases had the knowledge that there was a false picture being presented to the court. The problem was certainly significant, there being a large raft of cases. It would not be trivial if the matter were proved. This was systematic behaviour. The appellant was therefore given the permission sought. Honda Motor Co Ltd v Neesam [2008] EWCA Civ 1280, [2009] 1 W.L.R 2406 applied.

The court commented on the factors for assessing the damages to be awarded for pain, suffering and loss of amenity for mesothelioma, and on the lower level figure for awards in the Judicial Studies Board Guidelines 10th Edition

Dennis Ball v Secretary of State for Energy and Climate Change [2012] EWHC 145 (QB)

The Court held that the assessment of damages in mesothelioma cases was far more complex than the emphasis in the JSB Guidelines on "duration of symptoms" would suggest. Factors to be taken into account were the extent and effects of the invasive investigations that a claimant had had to undergo and the type of mesothelioma suffered. The level of symptoms were a key factor. If the symptoms, in particular pain, could not be effectively controlled, that was an important consideration. It was relevant that, even if death had been relatively peaceful, he or she would have been fearful since being told of the diagnosis that a painful and distressing end was to follow. The duration of symptoms were a factor, although not determinative of the level of award. The level of award would be affected by domestic circumstances and previous state of heath and level of activity. Looking at the reported awards, it was difficult to understand the basis of lower level figure of £35,000 in the tenth edition of the JSB Guidelines.

A late application to adduce expert evidence was granted as it would at least arguably assist the Court

Grupo Hotelero Urvasco SA v Carey Value Added SL (2012), QBD (Comm) 23/02/12

It was held that the necessity of expert evidence in the instant case could not be determined without seeing an expert report. However, the expert's evidence would at least arguably assist the court and the necessity of that evidence would have to be determined at a later time. In the context of a case that had as much as £100 million at issue, the prospect of the parties incurring £1 million in expenses relating to the expert evidence was an insufficient reason not to allow the evidence to be adduced.

April 1, 2012 · editorial · Comments Closed
Posted in: Cases