SSB Law win landmark industrial disease case - Stuart White & Christopher Johnson, SSB Law

12/02/19. In a landmark judgement, the High Court has ruled that a former employee of Alcoa, one of the world’s largest producers of aluminium, should be compensated for loss of hearing despite unsupportive expert evidence.

The High Court judgment in Mackenzie v Alcoa Manufacturing (GB) Limited [2019] EWHC 149 (QB) overturns the decision of the County Court, and adopts the argument of the claimant’s lawyers that the claimant should be entitled to the beneficial interpretation of his evidence as described by the Court of Appeal in Keefe v Isle of Man Steam Packet Company Limited [2010] EWCA Civ 683.

In Keefe v Isle of Man Steam Packet Company Limited the defendant was under a duty to produce noise surveys and admitted none had been undertaken. No acoustic engineer’s evidence was produced, but both the defendant and the claimant agreed the work place was noisy. The Court of Appeal held that “In such circumstances the court should judge a claimant’s evidence benevolently and the defendant’s evidence critically”.

At the McKenzie v Alcoa Manufacturing (GB) Limited hearing in December 2018, counsel Christopher Johnson of Doughty Street Chambers on behalf of the claimant argued that Keefe should still apply to this case, despite: (1) there being no admission by Alcoa that noise surveys were not undertaken (although no surveys were produced, and no explanation for this was put forward in evidence); and (2) there being unsupportive acoustic engineering evidence.

This argument was accepted by Garnham J in the High Court, ruling in favour of the claimant.

The ruling means that a defendant employer must either provide noise survey measurements or explain why they cannot do so, otherwise the claimant will benefit from a favourable interpretation of their evidence, even when the claim is not supported by an acoustic engineer.

Stuart White, Head of Industrial disease at SSB Law in Sheffield said:

“My clients are delighted with this decision from the High Court. This landmark judgment is a clear reminder to all employers that they cannot avoid their health and safety responsibilities to their employees and it has wide implications for all industrial disease claims.”

Stuart White & Christopher Johnson
SSB Law

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Appeals, Clinical Records and Adverse Inferences - Anna Datta, Parklane Plowden Chambers

05/02/19. Anna Datta examines the case of Claire Manzi v King’s College Hospital NHS Foundation Trust [2018] EWCA Civ 1882.

Background

A specialist registrar had conducted a post-birth ultrasound scan and examination on the Claimant, which indicated that there was a small area of retained placenta. The Claimant was told that the retained tissue should pass spontaneously. Unfortunately, she was readmitted to hospital having experienced severe pain and a further scan conducted by a sonographer revealed a larger area of retained placenta. The retained placenta had to be removed under general anaesthetic and the Claimant subsequently suffered a haemorrhage.

The claimant alleged that the specialist registrar had negligently failed to see on the ultrasound scan that a substantial part of the placenta had been retained.

The judge heard oral evidence from the registrar and the sonographer and expert obstetricians and gynaecologists. The Claimant stated that the doctor who had attended to her on the day of her operation (Dr Hooper) had told her that the placenta removed was a lot larger than expected. The Defendant did not rely on evidence from Dr Hooper.

First instance

The Judge concluded that the retained tissue was not substantial. The Judge gave detailed reasons for his findings.

The Judge did not draw an adverse inference against the Defendant for not obtaining evidence from Dr Hooper. The Judge felt that Dr Hooper’s role was ‘tangential’ and that any adverse inference was inappropriate.

The Claimant appealed.

Issue

The issues were:

1. Whether the judge had made an error in his evaluation of the factual evidence; and

2. Whether the Judge had erred by failing to draw an adverse inference against the Defendant for not calling Dr Hooper.

Decision

The Court of Appeal refused to interfere with the findings of the trial judge. In their opinion, the judge had taken a multi-factorial evaluation of the evidence. As a consequence, his findings were not perverse and an appeal on this point was ‘difficult, if not impossible on the evidence’.

The Claimant sought to rely upon the clinical note of Dr Hooper and argued that there was a rebuttable presumption that a contemporaneous clinical record is accurate. The Court of Appeal dismissed this argument and stated that ‘to raise the bar so high that an analysis of what might be sufficient to displace inherent reliability is needed in every case is to make the process of fact finding too onerous and mechanistic’. Furthermore, the judge had found that Dr Hooper’s clinical note was ‘tangential’ and that the evidence suggested that there were limitations to be put on its use.

With regard to the failure to draw adverse inferences; the Court of Appeal was unwilling to interfere with the discretion of the trial judge. Furthermore, the Court of Appeal was critical of the argument for the following reasons:

1. The Claimant sought a direction for disclosure of information about Dr Hooper but did not seek an order that she file and serve a witness statement. The Court of Appeal commented that the Claimant could have asked for a direction, which contained the warning that an adverse inference may be drawn if the evidence was not provided.

2. The Claimant did not make any arrangements to obtain a witness statement from Dr Hooper.

Comment

This case is a useful reminder that unless a judge’s evaluation can be demonstrated to be perverse, an appeal court will not interfere with the findings. Sir Ernest Ryder emphasises states ‘weight is a contextual evaluation for the judge who reads, hears and sees the evidence of the witnesses’ (paragraph 23 of the Judgment). Manziprovides a helpful recap on the law regarding the grounds on which a party can appeal findings of fact and discretion.

In Manzi there was a conflict in the clinical records with regard to the size of the retained placenta. The Claimant sought the trial judge to prefer one clinical record over another. It therefore raises the question, of how should conflicting contemporaneous medical records be considered? The judgment in Manzi emphasises that a holistic approach to evidence, that considers context, needs to be taken when understanding clinical records. The following factors may need to be taken into consideration:

1. When was the note made?

2. Was the note made by a treating clinician who was conducted the procedure (or as in Manzi, was the clinician making the note even present for the operation)?

3. Are previous and/or subsequent clinical notes likely to be more accurate? For example in the case of Manzi, the measurements of the retrained placenta were taken at differing times over a period of weeks when blood clots may have developed.

Manzi is also a reminder that there is no ownership of a witness. The Court of Appeal was highly critical of the Claimant’s approach of expecting the Defendant to rely upon the evidence of Dr Hooper. Clearly it was the Claimant’s case to run and if they felt Dr Hooper’s evidence was relevant, then they should have obtained and relied upon it themselves.

Anna Datta
Parklane Plowden Chambers

Image ©iStockphoto.com/zilli

The importance of getting the wording of pre-trial agreements right - Kate Donachie & Mohsen Din, Brodies LLP

31/01/19. A joint minute is a form of pre-trial agreement which is lodged with the court and sets out non-controversial matters between the parties in advance of a proof (trial) or other substantive hearing. The use of joint minutes is actively encouraged by the courts because such agreement can reduce the scope of any hearing and the number of witnesses required. Recently there has been increased pressure from the All Scotland Personal Injury Court to agree joint minutes before substantive hearings. However the implications of joint minutes can be overlooked and care should be taken to ensure that the agreement reflects parties’ intentions.

A cautionary tale in this regard can be found in Lord Woolman’s recent judgement in McKenzie and others v Asda Group and DHL Services 2018 CSOH 102.

That action involved a road traffic accident in which both the Asda driver and the DHL driver were found to be at fault.

Liability was apportioned 75 percent to the Asda driver and 25 percent to the DHL driver. The value of the claim had been agreed before proof (trial) by way of joint minute. The terms of the joint minute were as follows...

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