(1) LXA (2) BXL v (1) Cynthia Willcox (As personal representative of the estate of Edward Willcox, Deceased) (2) Cynthia Willcox [2018] EWHC 2256 (QB)

In (1) LXA (2) BXL v (1) Cynthia Willcox (As personal representative of the estate of Edward Willcox, Deceased) (2) Cynthia Willcox[2018] EWHC 2256 (QB), issues of questioning by the court in the absence of a party, s.33 of the Limitation Act 1980 and the valuation of damages in a historical child sexual abuse case were considered.

In this case, a brother and sister brought a claim for personal injury and other losses against their adoptive parents. The Claimants had been sexually abused by their adoptive parents in the 1970s. They had both sustained long-term psychiatric injuries. The Claimants had been adopted in the early 1970s when aged approximately 5 or 6 years old. In 2015, their father (First Defendant) was found guilty of indecent assault, indecency with a male child and child cruelty whilst the Claimants were at their home. Their mother (Second Defendant) was found guilty of child cruelty against the Claimants. The First Defendant died in 2017 and the proceedings continued against his estate. The Second Defendant did not attend the hearing, indicating instead that her witness statement and defence should be considered in her absence.

As the Second Defendant was not represented at the hearing, CPR 3.1A(5) applied which states:
“(5) At any hearing where the court is taking evidence this may include–
(a) ascertaining from an unrepresented party the matters about which the witness may be able to give evidence or on which the witness ought to be cross-examined; and
(b) putting, or causing to be put, to the witness such questions as may appear to the court to be proper.”

As such, the Court put questions to the witnesses. CPR 3.1(A)(5) applied even where the unrepresented party was not present. Equally, where an unrepresented party had indicated matters of concern it was proper for a judge to explore those matters with the witnesses.

The court disapplied the limitation period using its discretion under s.33 of the Limitation Act 1980. The court considered the factors listed in s.33(3) and in particular s.33(3)(e) which states:
“the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages”.

Here the Claimants had known from the outset that they had been abused but they had, understandably, been reluctant to report the abuse. The psychiatric evidence was that very few sexual abuse victims felt able to report parental abuse and that both Claimants had feared that the Defendants would kill them if they took action. Another relevant factor was whether the evidence was likely to be less cogent and reliable due to the delay. Equally, it was noted that assessing the loss was inevitably going to be more difficult given that the historical nature of the injuries. However, the Court considered that since the medical records were available and psychiatric injuries are often experienced over a long period of time, a fair trial was possible.

In relation to liability, the Defendants did not discharge the burden in s.11(2)(a) of the Civil Evidence Act 1968 which states:
“(2) In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any court in the United Kingdom…–
(a)he shall be taken to have committed that offence unless the contrary is proved.”
It was additionally held that, on the balance of probabilities, the First Defendant had raped the Second Claimant on one occasion.

The First Claimant sustained an adjustment disorder and dysthymia following the abuse. He required cognitive behavioural therapy which was estimated to cost £4,800. His psychiatric injury was valued at £35,000, falling within the moderately severe psychiatric damage bracket in the Judicial College guidelines. He was also awarded £40,000 for loss of earnings, pursuant to the approach in Blamire v South Cumbria HA [1993] P.I.Q.R. Q1. His total award, including therapy costs and travel, was £115,040.

The Second Claimant sustained an adjustment disorder and a recurrent depressive disorder. She also needed cognitive behaviour therapy at an estimated cost of £4,800. Since the sexual abuse had been particularly serious, a higher award of £80,000 was justified. She was awarded £76,000 for past loss of earnings. In terms of her future loss of earnings, she was only working at 80% capacity and therefore was awarded £17,564.27. Her total award was £186,011.08, which included an award for past and future prescription costs.

November 4, 2018 · Editorial Team · Comments Closed
Posted in: Cases

4 Characteristics of Best Personal Injury Lawyer

Consideration was given for the editing and publication of this post.

Whenever you face a serious injury, it is important that you properly contact your insurance company to let them know how serious you are about it. For this purpose, you need to hire a good personal injury lawyer who will act as your representative in the court. The personal injury lawyer or the accident lawyer makes sure that your medical bills and other losses in the accident are compensated well by the insurance company.

Now, it is important that your personal injury lawyer is good enough to help you in such situation. If you are looking for a lawyer, in this case, we are going to share some of the most important caricaturists that good personal injury lawyers must have. These points will help you chose the best one for yourself.

1.  Quick Availability

It is important that you chose a personal injury lawyer who is available no matter which time of the day is. Moreover, your accident lawyer availability must be quick enough to help you at the right time when you need the services. In addition to this, your lawyer must have an efficient team that will keep you updated about the progress of your case. This supporting team will them help the personal injury lawyer focus more on your case details rather than managing other things.

2.  Professionalism

It is indeed the most important characteristic of a personal injury lawyer. Professionalism includes proper care and attention of lawyer to your case. This will increase the chances that your case will be resolved in a very short time. The lawyers at renowned law firms, such as Personal Injury Lawerys at Hutchison & Stoy, are very professional and take their client’s case very seriously, that’s why they are successful. This is the main reason why a personal injury lawyer must be professional because it builds their reputation and ultimately leads the overall firm towards success.

3.  History of Success

One more important characteristic of a successful personal injury lawyer that one must look into is the record of success. This shows that how well he can work and negotiate with your insurance company for the compensation of your losses during the accident. The history of successful compensations for their clients reflects that they are credible also and that you can trust them.

4.  Sincerity

The last and another important characteristic that your personal injury lawyer must have is his sincerity towards your case. Your lawyer must be sincere enough with you to tell you all the good and the bad things that are likely to happen in your case. In this way, you will stay informed about your case and stay calm that you are processing in the right way. This will help you avoid the unnecessary anxiety that you would otherwise face when your lawyer does not share anything with you.

Keeping in mind the above description of the best characteristics of a personal injury lawyer, you can choose the best one for yourself. Do a little more research related to it and evaluate all the accident lawyers’ options available.

July 26, 2018 · Editorial Team · Comments Closed
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UK Insurance Limited v Stuart Gentry [2018] EWHC 37 (QB)

The Claimant insurer brought tort of deceit and committal proceedings arising out of an alleged accident in March 2013. The Claimant had settled the pre-accident value of the Defendant’s vehicle in the sum of £14,000 and the Defendant had brought further claims for PI and hire of a replacement vehicle. These damages were assessed in the sum of £75,000. In 2014 the Claimant undertook internet research which indicated that the Claimant’s Insured and the Defendant knew each other prior to the accident. In a witness statement the Defendant had asserted he did not know the Insured, but at the time of the trial he accepted that this was untrue. The Claimant’s case was that the accident was staged. After a two-day trial in the High Court, Teare J held that UKI had made out its case against Mr Gentry. The Court concluded that, when stepping back and assessing all of the evidence, it was suggestive that the collision was staged. The Defendant and the Insured knew each other and neither had informed UKI, even when the 2014 information came to light. In addition, the Insured’s vehicle was very old and the Defendant chose not to give evidence at the trial. The Court had the required evidence to conclude that the Claimant had made out its case.

February 28, 2018 · Editorial Team · Comments Closed
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London Organising Committee of the Olympic and Paralympic Games v Haydn Sinfield [2018] EWHC 51 (QB)

LOCOG appealed against a finding of a Recorder that a Claimant was not fundamentally dishonest for the purposes of section 57 Criminal Justice and Courts Act 2015. The Claimant brought a claim for personal injuries caused whilst he was volunteering at the Olympic Games. The Recorder found that the Claimant had been dishonest in fabricating invoices and exaggerating a claim for gardening services, but did not find that the dishonesty was fundamental, as it was the product of ‘muddled, confused and careless’ case preparation. On appeal, it was held that the Recorder had erred. He had elided the tests for fundamental dishonesty and whether this would cause substantial injustice to the Claimant. The Claimant had acted dishonestly in relation to a substantial part of the claim in a way that adversely impacted the Defendant. The Schedule of Damages contained dishonest misstatements which were fundamentally dishonest. The largest head of damage was supported by a dishonest witness statement and fabricated invoices. Both were premeditated and maintained. As a result of the finding of fundamental dishonesty the claim, valued at some £26,000, was struck out and the Claimant ordered to pay the Defendant’s costs of the action and appeal on the indemnity basis.

February 15, 2018 · Editorial Team · Comments Closed
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CN and another (through their Litigation Friend the Official Solicitor) v Poole Borough Council [2017] EWCA Civ 2185 (unreported)

The claimants and their mother were placed in local authority housing. The first claimant suffered from severe physical and learning difficulties, and was a child ‘in need’ for the purposes of s.17 of the Children Act 1989. The second claimant was also a child. The defendant was allegedly aware of a family housed in nearby accommodation persistently behaving in an anti-social manner. That family were said to harass and abuse the claimants, resulting in CN attempting to commit suicide. The claimants brought an action against their local authority in negligence, alleging that the latter had a common law duty of care to the claimants, informed by the Children Act 1989, to protect children in the local authority’s area, and to protect children at foreseeable risk of harm. It was alleged that the local authority ought to have conducted a child in need assessment, which should have led to the conclusion that the children (if not the family) required relocating. At first instance the claims were struck out as disclosing no reasonable cause of action. This decision was overturned in the High Court and the claims were restored. The defendant unsuccessfully appealed to the Court of Appeal, which ruled that conventional common law principles prohibited any finding of liability on the local authority’s part.

The Court of Appeal set aside its earlier decision of D v East Berkshire, in which it had held that the general preclusion of claims brought by vulnerable children against local authorities (as laid down in X v Bedfordshire) could not survive the Human Rights Act 1998. The Court held that D v East Berkshire could no longer stand following the Supreme Court’s decision in Michael v Chief Constable of South Wales, in which the Court held that the common law of negligence did not require extending to accommodate Articles 2 and 3 of the European Convention on Human Rights, given that there was a statutory cause of action under the Human Rights Act 1998.

Therefore, relying heavily on the decision of X v Bedfordshire, the Court considered the Children Act 1989 and held that Parliament could not be taken to have intended to create a private law cause of action in negligence. Further, the Court held that the case did not satisfy any of the exceptions to the general common law rule that a defendant is not, without more, liable to protect a claimant from the actions of a third party.

January 28, 2018 · Editorial Team · Comments Closed
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Ivor Cook v Swansea City Council [2017] EWCA Civ 2142, [2017] All ER (D) 110 (Dec)

The claimant brought an action against the local authority on the basis that it had breached its duty under the Occupiers’ Liability Act 1957 (‘OLA’) in failing to grit a car park which it owned and operated. The claimant had slipped on ice in the car park, causing him to fall and sustain injuries. The local authority operated a ‘reactive’ system, whereby they would grit an area if a member of the public reported it as being dangerous. The claimant argued that the local authority employees who visited the car park, such as ticket wardens, should report icy conditions to the local authority, and that the failure to utilise such a system fell below the standard of reasonable care. The first instance judge found that the local authority’s reactive system was sufficient to discharge its duty of care under OLA. On appeal, the Court of Appeal upheld the judgment, noting that it would be unreasonable in all the circumstances to impose a duty which required the local authority to grit all unmanned car parks when icy conditions were reported, and that there had to be a balancing exercise which took account of the likelihood of injury, the seriousness of any injury which may occur, the social value of the activity giving rise to the risk, and the cost of preventative measures. Particularly, the Court noted that ice was an obvious danger and that people could be expected to look out for the same. It also held that there was social utility in providing a 24 hour parking facility, and that the cost of manning and/or regularly gritting the car parks (as an alternative to closing them and thereby losing their utility) was disproportionate to the risk in question.

January 15, 2018 · Editorial Team · Comments Closed
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Advantage Insurance Ltd v Ewere (16 November 2017, QBD, Slade J)

The Claimant insurance company applied for committal of the Defendant for contempt of court. The Defendant had stated in the original personal injury action that he was in a parked vehicle when it was struck by the Claimant’s insured thereby causing him injury. That was verified with a statement of truth in the Particulars of Claim and two witness statements. The claim was dismissed, the Judge finding that the Defendant was not in the vehicle at the time. Slade J considered that the Claimant had established to the criminal standard, that the Defendant was not in the vehicle. In assessing the evidence of the Claimant’s insured, she had been consistent throughout. The Defendant, conversely, had given an inaccurate account of his medical history and had failed to disclose a previous RTA. In order to succeed in proving contempt of court, the Claimant had to demonstrate that the Defendant had signed the documents with no honest belief in the truth of their contents and he knew they were likely to interfere with the course of justice. Each of the grounds was made out, and the Defendant was thus in contempt of court.

December 15, 2017 · Editorial Team · Comments Closed
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Petroleum Company of Trinidad and Tobago Limited (Appellant) v Ryan and another (Respondents) (Trinidad and Tobago) [2017] UKPC 30

The respondent Claimants were diagnosed with pulmonary fibrosis and reactive airways disease respectively, which they attributed to emissions of hydrocarbon gases from land under the Appellant’s control. They sought compensation for their conditions by bringing actions in nuisance and negligence against the Defendant. The Defendant had accepted that there had been oil leaks, and had taken steps to prevent further leaks. However, even on the Claimants’ own medical evidence, there were many possible causes of both of their conditions, and a link with hydrocarbon emissions had not been established. The Court of Appeal in Trinidad and Tobago had taken a flexible approach to causation, applying the Fairchild v Glenhaven Funeral Services line of case law: they held that on the basis of policy reasons the Court could and should draw inferences to bridge evidential gaps, and therefore held the Defendant liable on the basis that the emissions were a contributing factor to the Claimants’ conditions. The Privy Council held that this assumption was not supported by the evidence, and that there was no reason to depart from the usual ‘but for’ test of causation in this case. As a result, the appeal was allowed and the claims were dismissed.

November 28, 2017 · Editorial Team · Comments Closed
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Armes v Nottinghamshire County Council [2017] UKSC 60

The Claimant had been in the care of the Defendant council between the ages of 7 and 18. During that time she had been placed with two sets of foster parents. She was physically and emotionally abused during her first placement, and sexually abused during her second. In both instances the abuse took place within the foster homes. The Claimant brought a claim in negligence on the basis of two arguments: either the Defendant council owed the Claimant a non-delegable duty of care, or it was vicariously liable for the wrongdoing of the foster parents.

The Supreme Court held that the council did not have a duty of care to provide day to day care to children, which would be too broad. Their duty was to take reasonable care in selecting foster parents and supervising those placements. There had been no negligence in the performance of that duty. Therefore, the claim for negligence in the performance of a non-delegable duty could not stand.

However, the Supreme Court found in the Claimant’s favour on the issue of vicarious liability. Applying the five factors set down by the Supreme Court in Cox v Ministry of Justice in 2016, the Court held that the foster parents were not carrying on an independent business of their own and that the acts had been committed in the course of an activity conducted for the council’s benefit; the council’s placement created a relationship of authority and trust between foster parents and children, rendering the latter vulnerable to abuse; the council exercised a significant degree of control over what foster parents did and how they did it; and that councils are more likely to be able to satisfy any compensation granted to victims than foster parents with insufficient means. The Court emphasised that when assessing vicarious liability, the role of control should not be exaggerated and that vicarious liability may be imposed in the absence of close supervision.

November 15, 2017 · Editorial Team · Comments Closed
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Breaking Down First and Second Degree Burglary Charges in California

Consideration was given for the editing and publication of this post.

According to the California Penal Code 459 the act of burglary involves breaking and entering a property in order to commit theft or felony. This could refer to an apartment or another place of residence, a business office, a cargo container and even storage units and tents.

However, California law recognizes two degrees of burglary. But what constitutes a first degree burglary or second degree burglary? This depends on several factors, including the type of property you entered and the type of theft committed: petty or grand.

In this article, we break down the difference between first and second degree burglary.

First Degree Burglary

The first degree burglary involves breaking into a place of residence or dwelling, like a house or an apartment. This type of burglary usually involves a harsher sentence than a second degree burglary.

A person facing first degree burglary charges can be sentenced by two, four or up to six years in prison. Since this type of burglary marks a strike on a criminal record, a convict has to serve 85% of their sentence.

However, if they were convicted with a prior strike, they will have to serve a double sentence and at least 80% of this sentence. Finally, if this is the third strike on your criminal record they are facing 25 to life.

Second Degree Burglary

Second Degree burglary involves breaking into a structure that does not serve as a dwelling, like an office with the intent to commit theft or felony.

Since this type of burglary is considered a wobbler, the prosecution can choose to treat it whether as a felony or a misdemeanor. The prosecutor’s choice depends on a number of factors.

If the burglary is filed as a felony, a convict could face a sentence of three years maximum. If it is filed as a misdemeanor, a convict is looking at a sentence of up to 364 days.

The factors that help determine how to file a second degree burglary involve whether a person charged has any prior convictions, what type of crime they committed upon breaking and entering and whether there’s enough evidence to convict them.

Naturally, a grand theft will lead to a larger sentence. You can read more about what constitutes a grand theft here: https://www.monderlaw.com/pratice-areas/theft/grand-theft

What are the Possible Defenses?

The prosecution has to present the evidence proving that the accused intended to commit a crime upon breaking and entering for both types of burglary charges. Therefore, there are several possible defenses against the allegations.

  • The defense could try to prove that the defendant was not aware of the party’s intent to commit a crime upon burglary.
  • The defendant did not commit an act of burglary, leading to a false accusation
  • The defendant did not intend to commit a crime
  • The defendant was intoxicated and couldn’t form intent.
  • The defendant was invited by an owner or a resident of the structure
  • The police violated the defendant’s constitutional rights.

If you are accused of burglary in San Diego, contact Monder Law Group at 424 F Street, San Diego, CA, US; 619-405-0063.

November 6, 2017 · Editorial Team · Comments Closed
Posted in: News