News Category 2
The Problem of Never Saying Never: Case Comment on Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307 - Lucile Taylor
23/07/18. Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307 was the appeal of a surgical consent case. The Appellant had failed at first instance to establish that she would have either deferred or abandoned an operation had she been warned of a given risk as she contended she ought to have been.
The Appellant attempted to short circuit this problem by arguing that the decision in Chester v Afshar [2004] UKHL 41 suggested that there was no need for a claimant to prove this at all: in brief, a surgeon who negligently fails to warn a patient of a material risk of injury inherent in a proposed surgical operation, can be held liable following Chester if the very risk that the patient should have been warned about when they gave their consent to surgery, then materialises. [51; 81]
In unanimously rejecting this argument, the Court of Appeal gave a thorough exegesis of the decision in Chester. [48-71]The judgment of Lord Justice Leggatt commented more generally on the plight of a claimant who could not categorically say whether, if properly warned, they would have opted to undergo an operation at the time that they did, if at all, touching on issues of proof, policy and rights in consent cases. [81-92]
Facts [1-20]
The Appellant suffered from a history of painful and heavy periods. She sought medical advice in the hope of relieving the symptoms. After a number of consultations, she underwent a total abdominal hysterectomy and a bilateral salpingo-oophorectomy in 2008. The operation was performed non-negligently.
Following surgery, it became apparent that the Appellant had sustained nerve damage as a result of which she suffered from pain in her abdominal wall. She had developed what is now recognised as Chronic Post Surgical Pain. (“CPSP”)
The Appellant's original pleaded case was that the Respondent was negligent in failing to warn her of the risk of CPSP. Her case later 'evolved' to say that the Respondent had a duty to warn of neuropathic pain and 'some' chronic neuropathic pain. She argued that had she been warned that there was a risk of chronic or nerve pain, she would either have decided not to have the operation, had second thoughts, sought a second opinion, or at least put things off. [28]
Decision at Trial [21-28]
Joint expert reports at trial agreed that CPSP was not common knowledge amongst gynaecologists in 2008 and as such, would not normally be mentioned in taking consent for hysterectomy. The judge therefore found that there was no duty to warn of CPSP.
Similarly, on the basis of expert evidence, the understanding of chronic and neuropathic pain, whether short term or long term, by gynaecologists in 2008, did not justify the imposition of a duty to warn of those risks, nor did it follow from the Guidance published by the Royal College of Obstetricians and Gynaecologists.
The judge also found that the Appellant was well aware of alternative treatment on offer and that the operation would cause some pain. She had been warned of the risk of 3-6 months of numbness and/or pain, albeit without using words like chronic or neuropathic.
On causation, given that the Appellant knew the operation would cause her some pain; that a warning of 4-6 weeks of pain would not have put her off; that the operation might not relieve her abdominal pain; and that there were a number of other quite serious risks, it was found that it was more likely than not that the Appellant would still have proceeded with the operation on that day, even if there had been warning to the effect said to be required.
Grounds of Appeal [29]
The Appellant appealed on three grounds:
Ground 1...
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PI Practitioner, July 2018
16/07/18. Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. You can also receive these for free by registering for our PI Brief Update newsletter. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address.
Molodi v Cambridge [2018] EWHC 1288 (QB) and Richards & Anor v Morris [2018] EWHC 1289 (QB) - Case Comment
Regular readers of the Personal Injury Brief Update blog will note that Molodi was summarised in the June edition. However, these two cases (both handed down by Mr Justice Martin Spencer on the same date in May) deserve a little more detailed consideration. In both, the Defendant appealed from decisions of the County Court in respect of minor personal injury claims which had been successful at first instance. Litigators in this area will be aware of the common class of claims termed 'low velocity' or 'low speed' impact cases. These cases occupy a large amount of County Court time, but very rarely make it to higher courts, and there are therefore few reported decisions on common issues that practitioners face on a daily basis.
The facts of each can be stated shortly. In both, the Claimants brought claims for...
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When is a supplier not a supplier? The Court of Appeal decision in X v Kuoni (2018) - Jack Harding, 1 Chancery Lane
02/07/18. In X v Kuoni Travel Limited (2018) EWCA Civ 938 the Court of Appeal concluded that, for the purposes of Regulation 15 of the Package (Travel etc) Regulations 1992, the employees of foreign suppliers (conventionally, hoteliers) are not themselves ‘suppliers’ for whom the relevant contracting party (the tour operator) is liable. In doing so the Court has driven a coach and horses through the heretofore uncontroversial consensus amongst practitioners and the courts surrounding the operation of the regulations. This article considers the implications of the judgment and argues that the reasoning of the court was both unnecessary to the disposition of the case and in equal parts confused and confusing.
The judgment
On 8th July 2010, in the early hours of the morning, Mrs X made her way to the reception of the Club Bentota Hotel in Sri Lanka. En route she met a uniformed employee of the Hotel who offered to escort her. She wrongly believed that he was a security guard. In fact, he was an electrician. He led her to an engineering room where he sexually assaulted and raped her.
Mrs X was staying at the hotel pursuant to a package contract organised by Kuoni. She brought a claim for damages against Kuoni pursuant to the terms of the contract and under Regulation 15 of the Package (Travel etc) Regulations 1992. It was alleged that Kuoni was liable because:
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Pursuant to its express terms and conditions, it accepted responsibility if, due to the fault of itself, its agents or suppliers, any part of the ‘holiday arrangements’ were not ‘of a reasonable standard’. The Claimant contended that in escorting her to the reception (or purporting to do so) the hotel employee was providing services as part of the holiday arrangements, which were plainly not of a reasonable standard.
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In the alternative, Kuoni was liable pursuant to Regulation 15 for the ‘improper performance of the obligations under the contract” irrespective of the fact that those obligations were performed by other ‘suppliers of services’ rather than by Kuoni directly.
Kuoni’s response was robust. It contended that:
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The acts of the hotel employee formed no part of the ‘holiday arrangements’ nor were they ‘obligations under the contract’.
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In any event, the employee was not a ‘supplier’ of services for whom Kuoni had any liability, whether pursuant to the terms of the contract, or within the meaning of Regulation 15.
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Alternatively, in the event that Kuoni had any prima facie liability, it could rely upon the statutory defence in Regulation 15(2)(c)(ii) in circumstances where the improper performance of the contract was due to an event which “the other party to the contract or the supplier of services, even with all due care, could not foresee or forestall”. It was argued that the ‘supplier’ for these purposes must mean the immediate contracting party (here the Hotel) thereby enabling Kuoni, by extension, to avoid liability where the tortious act was performed by an employee or agent of the supplier acting in a way which could not have been predicted or prevented.
The leading judgment was delivered jointly by Sir Terence Etherton MR and Asplin LJ. Longmore LJ offered a strong dissenting opinion which is considered in greater detail below. In summary, the majority held as follows...
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Fake Holiday Sickness Claims in Court - Miles Hepworth, FOIL & DWF
27/06/18. After several summers of facing gastric illness claims in the courts, this summer is set to be an altogether quieter one for insurance lawyers defending gastric illness claims.
ABTA's Stop Sickness Scams campaign together with the robust approach taken by some of the larger tour operators, the focus of the Ministry of Justice alongside the wider industry interest has been remarkably successful in a relatively short space of time in discouraging holidaymakers from making fraudulent claims.
We are also seeing the initial influence of the fixed costs reform, announced in April 2018, effectively disrupting the business models of the claims management companies behind these claims.
Two judgments over the last month have underlined the continued willingness on the part of the Courts to take a hard line. Jadeep Singh, who claimed the food and drink at a Mexico resort caused a three-week illness nightmare, was ordered to pay travel firm TUI £10,000 after selfies emerged of him enjoying himself free of illness. Similarly, Liam Royle secured £6,000 in compensation after claiming he fell ill in Cyprus, but was subsequently undone by video footage of him dancing ‘Gangnam Style’. He was ordered to repay the same amount in costs to package holiday firm Jet2holidays. The lure of social media postings continues to be the downfall of many claimants.
But even if the Courts are adopting a zero-tolerance approach, these judgments illustrate the extent of the underlying problem. I expect we will yet see further similar judgments emerging from other litigated claims.
There is still much to be done in challenging the claims management companies behind claims farming, not only in respect of gastric illness but in motor and casualty insurance claims. Too often these claims are not run for the benefit of the individual claimant, but for the financial interests of those claims management companies and other enablers. I look forward to seeing more decisions where claims management companies, the medico-legal professionals who offer an expert opinion based on little actual objective evidence, the lawyers paying referral fees and others involved start to feel the sting of successful defences.
Moreover, there appears to be a reluctance on the part of the claimant's legal representatives and the Courts to require those claims management companies to identify themselves. At a time when claims farming is rife it is difficult to understand why those driving such opportunistic claims should be allowed to hide in the shadows. There is no reason why their identity and involvement should not be clear from the outset.
Looking ahead, a future risk may face smaller tour operators. They could suddenly find themselves facing gastric illness claims though the advent of the Package Travel and Linked Travel Arrangements Regulations 2018. It is essential they know what to expect and how to deal with these claims when they arise.
Miles Hepworth, member of the Joint Fraud Sector Focus Team at the Forum of Insurance Lawyers (FOIL), and a Fraud Partner at DWF
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Why Becoming a Paralegal Is the Best Way to Build a Career in Personal Injury Law - Amanda Hamilton, NALP
26/06/18. For law graduates looking to enter the personal injury sector, the only true viable pathway currently is to qualify as a paralegal. Why? There are several reasons.
Firstly, taking the conventional route is time consuming and costly: going to university to read law costs £9k per annum. Over three years and £27k later (minimum – add on accommodation/living costs if relevant) and an individual may graduate with their degree but be substantially in debt. Then there is the professional qualification to gain in the fourth year. The LPC costs anywhere between £12.5k and £16.5k and the BPTC this year (2018) is expected to be over £18k (according to AllAboutLaw).
What is going on? How can the providers justify such a cost knowing full well that very few graduates will be able to gain training contracts in order to qualify as solicitors? The statistics speak for themselves: around 5,000 training contracts each year and around 9,000 graduates, each and every year competing for them. Compounded over the years and the competition becomes terrifying!
It’s a similar story to qualify as a barrister. 500 pupillages available every year and 4,000-5,000 graduates competing for them each year.
What is to be done? It’s vital that we educate law students about the options available. Transparency in providing the right information should be offered by the conventional professions on their websites. In addition, we should all do our best to impart information about what is actually happening within the legal services sector, regarding the difficulties in gaining training contracts and pupillages, and encourage students to look at alternatives.
Training to be a qualified paralegal can cost under £2,000 and then gaining experience can be attained in any environment where there is an element of legality attached. For example, for those who are coming into the legal sector for the first time, the NALP Level 4 Diploma covers not only academic law relating to tortious actions, including negligence, but also Civil Procedure i.e. taking someone to court and the processes involved to prove personal injury through a negligent act. There are also many law firms specialising in personal injury where experience can be attained.
It is a fallacy that paralegals are just ‘would-be’ solicitors and barristers who can’t find training contracts or pupillages and are working solely in solicitors’ firms. On the contrary, paralegals can be found in most environments including football clubs, retail establishments and film production companies to name but a few.
Having said that, paralegals perform quite an important function within law firms too. Especially, those firms which concentrate on personal injury. Such firms operate on a no-win-no-fee basis. There is quite often a lot of work required prior to taking such actions to court (if indeed the case gets to court at all, rather than be settled out of court as many are). What better reason to utilise the skills of paralegals to save costs, prior to being able to claw them back at the termination of the case on a no-win-no-fee basis.
Most organisations and companies will have a paralegal (or even a team of paralegals) working within their team. Why? Because, everything we do in this modern age has a legal connotation to it, and individuals can be trained to perform those legal tasks.
Paralegals who have qualifications and experience can perform at just as high a function as a solicitor. Indeed, solicitors do not have the monopoly on good practice and conduct. You just have to look at the latest statistics from the Office of Legal Complaints to realise that.
With the standard of qualifications for Paralegals being set at a high level (NALP’s qualifications are all regulated by Ofqual - the government body that regulates qualifications in England) why should solicitors not recognise the potential and promote and utilise paralegals within their PI firms. Paralegal recognition is most certainly warranted in this economic climate.
Personal Injury solicitors often find that they are lacking personnel to deal with the case flow. With limited numbers of trainee solicitors at their disposal, it makes perfect sense to bring in teams of paralegals to perform the tasks that are needed.
As to how to find the paralegals that you need, there is now a register – The Licenced Paralegal Register (LPR), where potential employers can contact individual paralegals who are members of NALP.
ABOUT THE AUTHOR
Amanda Hamilton is Chief Executive of the National Association of Licenced Paralegals (NALP), a non-profit Membership Body and the only Paralegal body that is recognised as an awarding organisation by Ofqual (the regulator of qualifications in England). Through its training arm, NALP Training, accredited recognised professional paralegal qualifications are offered for a career as a paralegal professional. See: http://www.nationalparalegals.co.uk and http://www.nalptraining.co.uk/nalp_training
Twitter: @NALP_UK
Facebook: https://www.facebook.com/NationalAssocationsofLicensedParalegals/
LinkedIn: https://www.linkedin.com/in/amanda-hamilton-llb-hons-840a6a16/
Image ©iStockphoto.com/pagadesign
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