Hill v Ministry of Justice [2022] EWHC 370 (QB)

The case concerned an appeal against the order of Recorder Bright QC dismissing a claim for personal injury suffered by Mr Hill (“the appellant”) in the course of his duties as a probationary prison officer. The appellant was instructed to escort two young offenders when one of the prisoners (“DB”) assaulted him, causing the appellant to sustain a spinal injury.

The recorder found that whilst DB was a “volatile, impulsive, manipulative and troubled young man who could be violent and fell into the worst 25% of prisoners in terms of conduct”, he was not a very dangerous prisoner and it was not necessary to automatically deem him as high risk whenever he left his cell. Further, DB did not pose any specific, imminent or foreseeable risk to staff beyond that routinely faced by prison officers.

The appellant submitted that the recorder had erred by (i) having regard the actual circumstances of the assault in assessing whether some injury was foreseeable; (ii) applying an incorrect and unduly onerous test of immediacy of harm in assessing whether any injury to the appellant was foreseeable; and (iii) failing to find that the respondent should have taken certain precautions.

Dismissing the appeal, Cotter J held that the judge had been entitled to dismiss the claim. The court confirmed:

There is a duty on an employer to take reasonable care to protect his employees against a reasonably foreseeable risk of injury in the workplace. Reasonable foreseeability of injury is not a fixed point on the scale of probability. The test is objective, but takes account of all relevant circumstances, including characteristics of the defendant in determining what is foreseeable. It is not necessary that the precise manner in which an accident happens should be foreseeable, so long as an accident of that general kind can be foreseen.”

The common law principles applicable to inherently dangerous occupations were the same as those applicable in any other type of occupation. However, for prison officers, the risks in question could not be wholly eradicated save by measures which would be impracticable, unacceptable, unlawful or too costly to be met by public funding. Escorting inmates to their cells was a routine task which carried a baseline risk of violence. The recorder had been entitled to find that there was no risk sufficiently above the baseline risk posed by many young offenders to require additional measures.

June 23, 2022 · Editorial Team · Comments Closed
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Barlow v Wigan Metropolitan Borough Council [2020] EWCA Civ 696

The Claimant was injured when she was walking along a path in a park and tripped over an exposed tree root. At first instance it was found that the tree root rendered the path dangerous and defective. This finding was not disputed on appeal. The question before the Court of Appeal was whether she had a valid claim against the Defendant Council, who were the owners and occupiers of the park. Whilst the Claimant’s particulars of claim included allegations of common law negligence, these were not pursued at trial. Her claim could only succeed if she established a cause of action for breach of statutory duty under section 41 of the Highways Act 1980 on the basis that the path was a highway maintainable at public expense.

The park had been constructed as a public park in the early 1930s by the Defendant’s predecessor. The paths were constructed by the Defendant or its predecessor, and predated the Highways Act 1959. The Defendant’s records did not list the park as a public right of way. However, the public had enjoyed unrestricted access to the park. The Defendant’s predecessor had been the highway authority for the area at the time when the park was constructed, although the Defendant denied that it was acting in that capacity when constructing the paths in the parLord Justice Bean considered the law on highway maintenance, and section 36 of the Highways Act 1980 in particular. Section 36(1) provides that highways which were maintainable at public expense under the earlier Highways Act 1959, continue to be so maintainable. A highway can be created by statute, or by dedication and acceptance. Dedication can be express, deemed by the operation of s 31 of the Highways Act 1980, or inferred by common law. To fall within s 36(1), the Claimant had to prove that the path had been dedicated before 16 December 1949. Bean LJ also considered s 36(2)(a), which provides that highways which were constructed by a highway authority are maintainable at public expense.

On first appeal, Waksman J, found that the path had been constructed by a highway authority and saw “no reason of language or logic for an additional ‘capacity’ requirement” as was contended by the Defendant. Contrary to the judgment of Waksman J, Lord Justice Bean found that the path did not constitute a highway maintainable at public expense for the purposes of s 36(2)(a) of the Highways Act. He referred to and agreed with the reasoning and conclusions of Neuberger J in Gulliksen v Pembrokeshire County Council [2002] QB 825, regarding the interpretation of s 36(2)(a): “the notion of ‘a highway constructed by a highway authority’ means ‘a highway constructed as a highway by a highway authority in its capacity as such'”. Bean LJ accepted the Defendant’s contention that its predecessor was not acting in its capacity as the highway authority for the area when it constructed the path. Accordingly, the path did not fall within s 36(2)(a).

Bean LJ proceeded to consider whether the path had been dedicated as a highway before 16 December 1949, and so fell within s 36(1). There was no evidence of express dedication, however there was ample evidence to support the implication or presumption of dedication at common law. The evidence established that the park was opened in the early 1930’s and that the path was laid out soon afterwards. Ever since that time the public had had unrestricted and uninterrupted access to the paths. It was accepted that the common law presumption of dedication was retrospective, as held in the Privy Council decision of Turner v Walsh (1881) 6 HL 636. Thus, the dedication “is deemed to have occurred at the beginning of the period of continuous user, not at the end of it“. Accordingly, the path was deemed to be dedicated since the early to mid-1930s, well before December 1949. The path therefore fell within s 36(1), providing the Claimant with a valid cause of action for breach of statutory duty under s 41 of the Highways Act 1980.

Singh and Macur LJJ agreed.

July 23, 2020 · Editorial Team · Comments Closed
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Gregory v HJ Haynes Ltd [2020] EWHC 911 (Ch)

The Claimant was a roofer employed by the Defendant from 1959 to 1971/2. His case was that during his period of employment he was required to work with asbestos containing materials and was exposed to dust. As a result, he developed pleural thickening which gave rise to a respiratory disability. He was at risk of mesothelioma and asbestosis.

The limitation period started running when the Claimant became aware of his disease in November 2008. He contacted solicitors in March 2009. His solicitors were unable to identify any relevant insurer covering the period of the Claimant’s employment, notwithstanding several checks and enquiries. In November 2013, the details of the Defendant’s insurers were uploaded to the Employer’s Liability Tracing Office database. This was not known to the Claimant or his solicitors at the time, but was later discovered in the course of another client’s claim in September 2014. In March 2015, the Claimant’s solicitors sent a letter of claim to the Defendant’s insurers. The Defendant company was also restored to the register for the purposes of other litigation. The Defendant acknowledged receipt in April 2015 and requested a witness statement. A statement was provided in November 2016. In January 2017, the Claimant also disclosed a medical report. In September 2017, the Claimant’s claim was issued.

District Judge Bell, exercising the jurisdiction of a circuit judge, declined to grant the Claimant’s application to extend the limitation period applicable to his personal injury claim, pursuant to section 33 of the Limitation Act 1980. The Claimant appealed, and submitted that the judge wrongly considered the claimant to be culpably responsible for a period of delay during which he did not know, and could not find out, whether the Defendant company, then dissolved, had insurance for the period of his claim.

Mr Justice Mann heard the appeal. He observed that this was an appeal from the exercise of discretion and that “the decision should therefore only be impeached if it betrays an error of principle, takes into account an irrelevant factor or fails to take into account a relevant one“…

Analysing the decision of District Judge Bell, Mr Justice Mann found that it had been an error to hold that the delay between March 2009 and September 2014 had been culpable. There was nothing more that the Claimant could realistically and sensibly have done during this period, given the dissolved and apparently penniless Defendant. Reasonable searches had been made and issuing a claim before restoration of the defendant company would not have been sensible. It was clear that in performing the balancing exercise under section 33, the judge had placed significant weight on the delay between 2009 and 2014 and the Claimant’s culpability in relation to this delay. The judge therefore took into account an irrelevant consideration which had a material effect on his ultimate decision. As a result, his final decision could not stand.

Mr Justice Mann proceeded to consider the Claimant’s application afresh. He observed that the section 33 exercise involved three key elements, namely delay and its reasons, prejudice to the parties and the possibility of a fair trial. There were also separate considerations under section 33(3) to consider. He made the following findings:

• Delay and its reasons:

o Up until 2014, the delay caused was not culpable.

o The period of delay between 2014 and 2017, had been culpable and inexcusable. The letter of claim ought to have been sent sooner and the claim should have been issued long before it was.

• Prejudice:

o The main prejudicial effect was likely to be the loss of evidence over the years, resulting in difficulties for the Defendant to meet the claim. However, it was not appropriate to consider the adverse effect of the total period of delay. The court had to consider the effect on the Defendant’s evidential position, only of the period of culpable delay from 2014 to 2017.

o By 2014, all the real prejudice to the defendant had accrued. The same was likely true for the Claimant’s evidential case.

• Fair trial

o District Judge Bell had found that a fair trial was still possible, and Mr Justice Mann accepted this view.

In his concluding remarks, Mr Justice Mann found that if the Claimant had commenced proceedings in 2014 or the beginning of 2015, the application to extend the limitation period would have been highly likely to succeed. The balance of fairness would have been in his favour as he would have sued at the first reasonable opportunity. Instead the claim was brought in 2017, for no good reason. Whilst the Defendant’s evidential position had probably not worsened during this period of delay, there comes a point at which the Claimant’s own delay will make it unfair to extend the period. This case came close to that point. However, the delay was attributable to the Claimant’s solicitors rather than the Claimant himself, and it was not quite enough to deprive him of the opportunity to pursue his claim.

Accordingly, the Claimant’s appeal was successful.

May 19, 2020 · Editorial Team · Comments Closed
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Newham London Borough Council v Arboleda-Quiceno QBD (Lambert J) 31/07/2019

In 2015, the Claimant injured his knee whilst playing football on an AstroTurf pitch in the local authority’s recreational grounds. He alleged in a pre-action letter that the injury had occurred due to a hole in the AstroTurf, and that the Defendant had breached its duty of care by inadequate inspection and maintenance of the pitches. The Claimant’s injuries included a fractured tibia and ongoing pain. It was stated that the Claimant required an arthroscopy and further investigation. The estimated value was in excess of £50,000. The Defendant’s insurer corresponded with the Claimant, and admitted liability. In 2018, particulars of claim and a schedule of loss were filed, claiming nearly £3 million due to chronic pain, unemployment, ongoing disability and the potential need for future surgery. The local authority applied to withdraw the admission, and denied liability on the basis that the claim was fundamentally dishonest. It was alleged that the Claimant had jumped and landed awkwardly, and that the accident had happened on a different pitch from the one alleged by the Claimant.

The Master considered the application on the papers, and applied the factors set out in CPR PD 14 para 7.2. She found that prejudice to the Claimant and the interests of the administration of justice supported a rejection of the application for withdrawal. She also found that whilst the local authority’s defence of fundamental dishonesty had a realistic prospect of success, the evidence supporting it was weak and contained inconsistencies. Further, she found that the Claimant’s claim had not fundamentally changed since the pre-action letter. It was not different in size or character, notwithstanding the amount claim being increased. On this basis the Master refused the Defendant permission to withdraw the pre-action admission by its insurer. The Defendant appealed.

October 10, 2019 · Editorial Team · Comments Closed
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Buster Angus Stark v Tabitha Lyddon [2019] EWHC 2076 (QB)

On 29th August 2016, a road traffic accident occurred when the Defendant turned right, out of a car park, across the path of the Claimant’s motorcycle. The Claimant T-boned the Defendant’s car at the rear offside passenger door. The Claimant was thrown over the top of the car, and landed some way down the road, sustaining severe injuries to his right dominant arm, which removed all function in that arm.

It was agreed that cars exiting the car park had to give way to traffic established on the road, but were allowed to turn right from the exit. Some 130 metres from the car park exit, the speed limit on the road dropped from 40mph to 30mph. The Claimant had no memory of the accident, but had approached the scene in the eastbound lane. The Defendant’s account to the police on the day of the accident was that she had waited for traffic from her right to pass her at the exit, and had pulled out when “there was absolutely nothing” to her right. She then felt an impact behind her, almost at the rear seats. Her witness statement provided a similar, although more detailed, account.

CCTV footage of the collision showed the Defendant’s car slowing down to walking pace as she drove towards the exit. When she approached the Give Way lines, her brake lights came off and she accelerated gently and drove across the eastbound lane. The motorcycle, positioned in the centre of the road, came into view as the Defendant’s vehicle had reached the middle of the road. The Claimant then applied emergency braking, and the Defendant’s brake lights came on. The Defendant did not indicate her right turn at any point.

The parties’ accident reconstruction experts agreed on nearly all issues, including the following: the Defendant did not come to a halt or stop at the Give Way lines; the Defendant’s line of sight at the Give Way lines would have been 130 metres along the eastbound lane; her sightline when her vehicle was 2 metres from the Give Way lines was shortened to between 70 to 80 metres by a hedge; the Claimant’s speed at impact had been 55mph; had the Claimant been riding at 40mph, slowing down to 30mph as he passed the 30mph sign, he would have had sufficient time and distance to avoid the impact. There was also independent evidence from a motorcyclist who had observed the Claimant, to the effect that he was driving irresponsibly and far too fast.

September 15, 2019 · Editorial Team · Comments Closed
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Astex Therapeutics Ltd v Astrazeneca AB [2018] EWCA Civ 2444

In this case the Respondent had made an offer which was significantly more favourable to the Appellant than the outcome that the Appellant achieved at trial. However, the offer was not made under CPR Part 36 and therefore there were no automatic costs consequences (following F&C Alternative Investments (Holdings) Ltd v Barthelemy [2012] EWCA Civ 843). However, the offer was relevant under CPR Part 44 which obliges the court to consider all the circumstances of a case when deciding the order for costs. The court considered that although there might be some cases where the refusal to accept a reasonable offer was capable of justifying an award of indemnity costs, that situation would only arise where the failure to accept such an offer was itself unreasonable. In this case it was held that the Appellant’s conduct did not justify an order for indemnity costs and that part of the order was set aside.

December 28, 2018 · Editorial Team · Comments Closed
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Andrew Graeme Waring v Mark McDonnell (unrep., Brighton County Court, 6 November 2011)

The Claimant and Defendant had been cycling in opposite directions and collided head-on. Both sustained personal injury and brought claims for damages. The Judge found for the Claimant and dismissed the Defendant’s counterclaim. It was held that the Defendant was not entitled to the protection of qualified one-way costs shifting in relation to the costs of the Claimant’s successful claim. This was because he was not an unsuccessful claimant in the Claimant’s claim, but an unsuccessful defendant. The court expressly disagreed with the approach taken in Ketchion v McEwan (unrep., Newcastle & Tyne County Court, 28 June 2018) where it had been held that, in CPR 44.13, the word “proceedings” included both a claim and counterclaim.

HHJ Venn stated that, if the approach in Ketchion was followed, a number of undesirable consequences would arise, including the fact that insurers of defendants would be incentivised to bring counterclaims for damages for personal injury to ensure there would be no liability for costs.

December 15, 2018 · Editorial Team · Comments Closed
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Livewest Homes Ltd v Bamber [2018] EWHC 2454 (QB)

The Respondent wanted to oppose an appeal against a possession order, both on the ground relied upon by the first instance judge in his judgment, and/or upon a different basis rejected by the judge at first instance. The Respondent had not filed a Respondent’s Notice to uphold the lower court’s decision “for reasons different from or additional to those given by the lower court“, as it was required to do by CPR 52.13.

The Respondent therefore had to make an oral application, at the appeal hearing, to file a Respondent’s Notice out of time. Dingemans J held that the Respondent was indeed required to file a Respondent’s Notice, and whether permission to file one out of time should be granted was governed by the principles set out in Denton v TH White Ltd [2014] EWCA Civ 906.

Despite the lateness of the application, it was granted. The breach was serious, and there was no good reason for it (the failure appeared to be founded upon the Respondent’s representatives’ misunderstanding of the function of a Respondent’s Notice and of CPR 52.13). However, the point had been ventilated previously and was taken by the Respondent in its skeleton argument, so the Claimant could not be said to be unaware of it; it was a point of pure law, so no further investigation was required in respect of it; and the Claimant’s representative were able to deal with it so there was no unfairness.

Playboy Club London Ltd v Banca Nazionale Del Lavoro Spa [2018] EWCA Civ 2025:
The Court of Appeal held that there was no abuse of process where the Claimant failed to bring a deceit action at the same time as its claim for negligent misrepresentation.

The Claimant was a casino which had extended credit to a customer who had been provided with a good credit reference by an employee of the Defendant bank. The customer defaulted, and the casino brought an action against the bank alleging that the employee had negligently misstated the customer’s creditworthiness in his reference. At the time of bringing that claim, the casino was aware that it may have a claim in deceit against the bank, but considered that such a claim would be speculative and weak. At trial, material emerged in cross-examination which would substantially support a claim in deceit.

The claim in negligence was lost – on appeal, on the basis that the bank owed no duty of care in negligence to the casino, since the casino was not the addressee, but the addressee’s undisclosed principal: [2018] UKSC 43. Following the loss in the Supreme Court, the casino sought to being a further claim, this time in deceit. The deceit claim was initially struck out as abusive, but the Court of Appeal overturned that decision, noting that: (a) the negligence claim was substantially different from the deceit claim; (b) there was a good reason for not bringing the deceit claim previously, namely that the evidence to support it was circumstantial and weak, and it would have been inappropriate to plead allegations of dishonesty on such a basis; (c) the casino had not been acting tactically or ‘keeping its powder dry’; and (d) it would be a “rare case where the litigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse of process“.

November 28, 2018 · Editorial Team · Comments Closed
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Lewis -v- Tinsdale & the Motor Insurers Bureau [2018] EWHC 2376 (QB)

In Lewis -v- Tinsdale & the Motor Insurers Bureau [2018] EWHC 2376 (QB), the Claimant suffered serious injuries when he was walking on private land and hit by an uninsured Nissan Terrano 4 x 4 vehicle. The First Defendant was debarred from defending the claim and judgment was obtained against him. The Court considered whether Articles 3 and/or 10 of Directive 2009/103/EC were directly effective against the MIB through being an emanation of the state.

At a trial of the preliminary issues, Mr Justice Soole noted that the CJEU had made it “unequivocal that the obligation of compulsory insurance extends to the use of vehicles on private land”. Crucially, he went on to find that the MIB was an “emanation of the state” for the purposes of the Insurance Directives. He considered that Farrell v Whitty (No.2) (C-413/15) [2018] 3 WLR 285 had superseded the reasoning in Byrne v MIB [2009] QB 66 and the observations of Hobhouse LJ in Mighell v Reading [1999] Lloyds Rep IR 30. Further, the MIB was liable to indemnify the Claimant at least to the minimum level of cover under Directive 2009/103/EC, which is EUR 1 000 000 per victim. The question of whether the European principle of equivalence in fact requires unlimited cover was raised late in the hearing and was not fully argued. As such, Mr Justice Soole went no further than to state that Article 3 had direct effect to the extent of at least the minimum requirement of EUR 1 000 000 per victim. Whether unlimited cover is indeed required remains to be seen.

November 15, 2018 · Editorial Team · Comments Closed
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(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
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