News Category 2
A Look at the New Fatal Accident Inquiries Legislation in Scotland - Jonathan Cornwell, Brodies
14/01/16. Fatal Accident Inquiries (FAIs) featured prominently in the Scottish mainstream media during 2015. Following the tragic events of 22nd December 2014 (when a bin lorry collided with pedestrians in Glasgow city centre killing 6 people and injuring 15 others), the decision of the Crown Office and Procurator Fiscal Service not to prosecute the driver and the subsequent Fatal Accident Inquiry meant that the subject was rarely far from the headlines.
An FAI is the fact-finding process, utilised in Scotland, through which the circumstances of certain deaths are investigated and determined. It is broadly equivalent to an English Coroner’s Inquest. An FAI takes place before a sheriff, who is required to produce a determination setting out the time, place and cause of death, and anything which could have prevented the death. An FAI is mandatory for deaths resulting from an accident in the course of employment or in legal custody. It is discretionary where the Lord Advocate deems it to be in the public interest that an inquiry should be held into the circumstances of a death on the ground that it was sudden, suspicious or unexplained; or if it has occurred in circumstances that give rise to serious public concern. Even where a death falls into the mandatory category above, the Lord Advocate can decide there will be no FAI if there have been criminal proceedings and he is satisfied that the circumstances of the death have been sufficiently established in the course of those proceedings.
The existing legislation – the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 – has long been considered inadequate. As far back as 2008, Parliament debated these inadequacies Seven years later, in 2015 two bills were introduced to the Scottish Parliament intended to overhaul the current system of FAIs and to address its perceived shortcomings. The Scottish Government published the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill. This contained practical measures intended to ensure a system which is “effective, efficient and fair”. A second bill was introduced by Patricia Ferguson MSP the contents of which went significantly beyond what was proposed in the Government’s Bill which she described as, “tinkering at the edges of this legislation”. In her view there needed to be “a fundamental overhaul of the system”.
One common criticism of the process was that the families of the deceased were not central to it, nor did they take a role in shaping the scope of the inquiry. The lack of transparency and failure to involve the family of the deceased was something that both bills sought to address. Critics also made reference to the delays encountered. The inquiry process was often significantly delayed by a pending criminal investigation and prosecution (although that was notably not the case in the accident mentioned above).
Both Bills were before the Scottish Parliament until September 2015 when, “in the spirit of collaboration”, Patricia Ferguson agreed to withdraw her bill and to work with the Government on amendments to its bill. That Bill was passed on the 11th December 2015 and contains some, but not all of the reforms, sought in the private member’s bill.
It is widely agreed that investigations should go beyond establishing the cause of the death, to learning lessons from the death in order to prevent further occurrences. In around one third of the FAIs held in Scotland each year the Sheriff makes recommendations intended to prevent similar accidents or deaths occurring in the future. Under the Bill individuals and organisations will now have a legal duty to respond to the FAI setting out whether they have followed these recommendations or why they have chosen not to.
The criticism of the lack of involvement of the deceased’s family has been addressed by the introduction of a “Family Liaison Charter”. This is intended to ensure that bereaved families are kept informed of the progress of investigations and whether there will be a criminal prosecution or an FAI.
The Bill extends the category of mandatory FAIs to include those arrested or detained by the police at the time of death (regardless of the location) and to the deaths of children in secure care. It also permits discretionary FAIs to take place into the deaths of Scots abroad (even where the body is not repatriated to Scotland) provided that the Lord Advocate considers that any investigations already carried out have not sufficiently established cause of death and there is a real prospect that the full circumstances would be established at the FAI.
The Scottish Government also announced that it had reached an 'agreement in principle' with the UK Government to extend mandatory FAIs to deaths of service personnel in Scotland. This new measure is not included in the Bill as it relates to defence, which is reserved to the UK Government. Instead it will be enacted by a UK Order under section 104 of the Scotland Act 1998.
The other most notable provision of the Bill is that it allows an FAI to be re-opened if new evidence arises and for a fresh FAI to be held if that new evidence is substantial enough.
The fact that the Bill was passed unanimously demonstrates the consensus of opinion that change to the existing system was long overdue. However, there was still criticism in some quarters that the Bill does not go far enough and particular criticism that there is no automatic right to legal aid for the families of the deceased. It is widely agreed that the Bill goes some way to modernising the system and that it should make for a more efficient process. The other consequences of the Bill’s proposals (intended or otherwise) remain to be seen.
Jonathan Cornwell is a Partner with the personal injury, pursuer team, at Brodies LLP
Image cc flickr.com/photos/terinea/536128972
Should Cycling Helmets Be Made Compulsory? - Colm Nugent, Hardwicke
12/01/16. The apparently never-ending debate about whether cycling helmets should be mandatory for all cyclists resurfaced again with an article in the Guardian (12/10/15) looking at the different experiences of Seattle (which has made them compulsory) and Amsterdam (which has not). A quick not-that-scientific-survey of commuting cyclists this week by me, indicated that 90%+ were wearing helmets. (Although probably 50% were wearing lycra so what does that prove?)
The Guardian discussion continues on Facebook and Twitter if you really want to get into "why-oh-why" mode.
The law on cycling helmets remains reassuringly uncertain. In Malasi v Attmed (2011) QBD, Judge Seymour QC reduced a cyclist’s award of damages by 80% when he was struck by a speeding taxi. Despite the defendant using upon him to take account of the lack of helmet and high-visibility clothing, the judge confined his decision to the failure to observe a red light.
In the famous decision of...
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Top Personal Injury Decisions of the Court of Appeal in 2015 - Ian Miller, 1 Chancery Lane
11/01/15. The Court of Appeal made a number of important decisions in 2015 in the field of personal injury. Ella Davis and Ian Miller review some of the most important of them for the PI practitioner. They cover psychiatric damage, causation, quantum, the Athens Convention, jurisdiction, duties of care, vicarious liability and non-delegable duties...
Psychiatric Damage
Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588 was a case of a claimant claiming damages for psychiatric injury consequent on seeing the condition of a loved one brought about by the negligence of a defendant. Of the four requirements for recovery, the decision focused on whether C’s illness had been “induced by a sudden shocking event.” Three issues were at the heart of the case: (1) whether C had suffered a recognised psychiatric illness, (2) Whether there had been “an event” and (3) how “shocking” the event must be. Edward Bishop QC provided a masterly analysis of this and other decisions in the 1 Chancery Lane October 2015 PI Briefing.
In brief, C’s wife became extremely unwell due to the negligence of D. C claimed he had suffered psychiatric injury as a result of the shock of seeing his wife’s sudden deterioration and appearance in hospital. The CA confirmed that courts should pay close attention to diagnostic criteria, that whether an event is ‘horrifying’ must be judged by objective standards and by reference to persons of ordinary susceptibility and that for an event in a hospital to be ‘shocking’ required something “wholly exceptional in some way so as to shock or horrify”. It also considered what was meant by an ‘event’ and ‘sudden’ finding that C had not been exposed to one event (“a seamless tale with an obvious beginning and an equally obvious end”) but a series of events with no “inexorable progression”. What had happened was not sudden, it had not caused an “assault upon the senses” but at each stage C had been conditioned for what he was about to perceive.
Causation
Reaney v University Hospital of North Staffordshire NHS Trust [2015] EWCA Civ 119 was considered in a posting by Ella Davis “Quantity not Quality”. She rightly observes that the decision brings clarity to the law rather than any new departure. The CA considered causation in a case where a patient was a paraplegic requiring a care regime (due to non-negligent causes) but due to the negligence of D causing pressure sores, her care needs were increased. The question was whether D caused all her care needs or whether D was only liable for those needs less the needs which she would have had but for the negligence. The key issue was whether the pre-existing care needs were qualitatively different from those caused by the negligence or whether they were merely quantitatively different. The CA found they were only quantitatively different and therefore D was only liable for C’s increased care requirements. In future parties will doubtless pay careful attention to whether losses are qualitatively or quantitatively different as a result of negligence adding to a pre-existing condition.
Causation and the Burden of Proof
Graves v Brouwer [2015] EWCA Civ 595 concerned a house fire of unknown cause. Mr Brouwer set fire to a small bundle of papers in the passageway next to his house. Very shortly afterward the roof of his neighbour’s house caught fire. The experts agreed that the chances of an ember from the papers travelling to the eaves of the building and starting a fire were very low but, absent arson, were unable to come up with a more probable cause. The judge rejected arson as fanciful and found that, while the flying ember theory was scientifically improbable, the Claimant succeeded on causation.
The Court of Appeal overturned her decision saying she had failed to ask herself the ultimate question whether the flying ember theory was more likely or not to be true. The fact that no other possible causes were identified, in large part because there was no investigation at the time, did not make it more probable than not the fire was caused by a flying ember. As Roderick Abbot observed in his blog post “Sherlock Holmes in the Court of Appeal”, the exercise is not one of identifying the least unlikely cause. The Claimant had failed to discharge the burden of proof and that was all the judge was required to find.
Quantum
Billett v Ministry of Defence [2015] EWCA Civ 773 concerns how courts should assess damages for loss of future earning capacity in circumstances where the claimant suffers from a minor disability, is in steady employment and is earning at his full pre-accident rate. Should the court follow the traditional Smith v Manchester approach or should the court use the Ogden Tables, suitably adjusted?
C suffered from a minor Non Freezing Cold Injury (“NFCI”) which had a substantial impact on his day to day life in cold weather. The condition had less impact on his work as a lorry driver than it had on his leisure activities. The judge found that his loss of future earning capacity should be assessed by using Ogden Tables A and B, suitably adjusted, not by applying Smith v Manchester.
The CA upheld his decision that C had a minor disability clarifying that where a court considers whether an injury substantially limits a claimant’s ability to carry out normal day-to-day activities, the enquiry should be directed at what the claimant cannot do rather than what he can do. The CA overturned the judge’s decision to use the Ogden Tables: unadjusted they produced an unrealistic future loss; adjustment however was a matter of broad judgment which was no more scientific than the approach in Smith v Manchester. The judgment still leaves open the question when a disability becomes serious enough to engage the approach in Ogden Tables A and B and when and how those might be adjusted. However as Andrew Spencer said in his blog on this case (Loss of future earnings and disability) the case is strong authority for retaining the Smith v Manchester approach in cases of minor disabilities with little effect on the claimant’s chosen career.
Athens Convention
In South West Strategic Health Authority v Bay Island Voyages [2015] EWCA Civ 708 the CA considered two issues relating to the Athens Convention (which governs personal injury to passengers at sea). The first was whether it extended to claims against carriers for contribution to liability of others and the second was the effect of the time bar prescribed by the convention.
Dr Feest was injured in a boating accident in the Bristol Channel. The carrier was Bay Island Voyages (“BIV”). Dr Feest’s first firm of solicitors failed to issue against BIV within the 2 year time limit under the Convention and so she sued her employer SWSHA on the basis the accident occurred in the course of her employment. SWSHA joined BIV who successfully applied to have the Part 20 proceedings struck out. The Court of Appeal found that the provisions of the convention were not directly applicable to SWSHA’s claim against BIV. It also found that the time bar in Article 16 did not extinguish the cause of action but only barred the remedy: this was critical for SWSHA’s contribution claim as, if the limitation provisions had extinguished the right to bring the claim, under the provisions of the Civil Liability (Contribution) Act 1978 SWSHA could only have brought a claim within 2 years of the accident. Ian Miller, who represented SWSHA with John Ross QC, blogged on the case: “Contribution, limitation and the Athens Convention.”
Jurisdiction
Brownlie v Four Seasons Holding Incorporated [2015] EWCA Civ 665 involved the application of the Canada Trustgloss and a novel question about where damage in a tort claim was sustained.
C bought an off package excursion in Egypt in which her husband was killed and she was injured. She booked the excursion by making a telephone call in England to the concierge at the hotel in Egypt. After the accident she brought proceedings in the High Court in contract and tort. She brought three tort claims (1) in respect of her own injuries; (2) as a dependant of her husband and (3) for the loss suffered by her husband’s estate.
On appeal the court of appeal, applying the Canada Trust gloss – which is well set out and explained in the judgment - found that there was a good arguable case as to the identity of the defendant and as to whether the contract was made in England. This was not novel point of law: it was merely a finding that it was likely that C had called the concierge with proposals and he had accepted them. Given a contract for an excursion is made at the place where the words of acceptance are received, the contract was made in England.
The novel point of law considered by the CA was the question of whether damage was sustained within the jurisdiction for the purposes of C’s claim in tort. This is the requirement of paragraph 3.1(9)(a) of the Practice Direction 6B (the tort gateway) for permission to serve out of the jurisdiction. The CA held the jurisdictional gateway should be interpreted consistently with Rome II and therefore the country in which the damage occurs should be the country where the injury was sustained regardless of the country in which the indirect consequences could occur. Thus the Claimant’s personal claim and the claim on behalf of the estate should be brought in Egypt. However, the dependency claim under the Fatal Accidents Act 1976 was not properly described as a consequential loss it was an independent loss and so the Claimant had shown a good arguable case that English law should apply to this claim.
Matthew Chapman who appeared in this case with John Ross QC has blogged on it.
Duties of care and mental impairment
In Dunnage v Randall [2015] EWCA Civ 673 the Defendant (“V”) was a paranoid schizophrenic who poured petrol over himself and ignited it, injuring his nephew the Claimant. V’s mental state was agreed to be grossly impaired. On a spectrum between completely healthy volition and absent volition he was at least 95 per cent impaired and probably 100 per cent absent volition.
A number of helpful points arise from the three lengthy judgments given. First, the court rejected any need to differentiate between mental and physical impairment. Second, a person with a mental impairment owes a duty of care. Third, the standard of care should not be adjusted to take account of the personal characteristics of the Defendant, it is purely objective. Fourth, only Defendants whose attack or medical incapacity has the effect of entirely eliminating any fault or responsibility for the injury can be said not to have broken their duty of care.
The Claimant’s appeal was therefore allowed. Interestingly the court noted that insanity is a defence in crime because criminal law is punitive whereas the function of the law of tort is to compensate victims.
Vicarious Liability
In Graham v Commercial Bodyworks Ltd[2015] EWCA Civ 47 the court had to determine whether an employer was vicariously liable for the acts of an employee who sprayed a co-worker’s overalls with thinning agent and then set them alight causing him considerable injury.
Having looked at the Canadian authorities in sex abuse cases, the court considered that the starting point was to examine whether there was a close connection between the creation or enhancement of a risk by the employer and the wrong that accrues therefrom. In this case the employers created a risk in requiring their employees to work with paint thinners but there was not a sufficiently close connection between that risk and the wrongful act. The wrongful act did not further the employer’s aims and it was not related to friction, confrontation or intimacy inherent in the employer's enterprise.
Where the employment does not require the exercise of force and there is no inherent friction, intentional conduct in the workplace, whether horseplay or more serious acts, will not normally give rise to vicarious liability.
Vicarious Liability and Non-Delegable Duties
The Court of Appeal in NA v Nottingham County Council [2015] EWCA Civ 1139held that a local authority was not vicariously liable for the abuse of a child by the foster carers with which it placed her, nor did it owe her a non-delegable duty to protect her from harm.
The relationship between the local authority and the foster carers was not sufficiently akin to one of employment to give rise to vicarious liability.
On the issue of a non-delegable duty all three members of the court of appeal gave different reasons summarised in our November 2015 PI Briefing. In brief, Tomlinson LJ held that the local authority had discharged rather than delegated its duty in placing the child with foster carers. Burnett LJ held that what the Claimant sought to do was to expand the common law imposing a strict duty on local authorities on the basis that foster parents were not always able to satisfy a claim. Black LJ held that it would not be fair just and reasonable to apply such a duty; in fact it would be unreasonably burdensome and potentially harmful if it led to over cautious practice.
Ian Miller
1 Chancery Lane
Image ©iStockphoto.com/serggn
Qader v Esure: Ex-Protocol Claims Attract Fixed Costs Even on the Multi-Track - Martyn Griffiths, Hardwicke
09/01/16. On 15 October 2015, HHJ Grant sitting in the County Court at Birmingham handed down judgment in Qader & Others v Esure Services Limited [2015] EWHC B18 (TCC) on an appeal concerning the scope of the fixed costs regime that applies to cases commenced under the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (“the RTA Protocol”). The case has potentially far reaching ramifications and will likely also apply to cases leaving the Employers’ Liability and Public Liability Protocol.
The facts of the case
The accident occurred in October 2013. The three Claimants allege that the Defendant’s driver drove into collision with the rear of their vehicle on a slip road. The Claimants issued their claims with a claim value stated to be “in excess of £5,000 but not in excess of £15,000”. By reason of this valuation the claim was started under the RTA Protocol.
In the Defence it was alleged that the Claimants had deliberately induced the accident by braking suddenly on the slip road which was said to be entirely free from traffic. The claims being pursued by the Claimants were therefore alleged to be fraudulent. In their reply, the Claimants stated that a vehicle in front of them had caused them to brake.
On 30 January 2015, the claim was allocated to the multi-track and a CCMC was listed for 3 June 2015. In the notice of hearing for the CCMC there was a note requiring the parties to...
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Material Contribution: The Search for the Elusive Third Way - Charles Feeny & Sammy Nanneh, Contributing Editors at Pro-Vide Law
07/01/16. In Bailey v the Ministry of Defence [2009] 1WLR 1052, Lord Justice Waller stated, “In a case where medical science cannot establish the probability that “but for”an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the “but for”test is modified, and the Claimant will succeed”.
Lord Dyson MR commented upon this in Reaney v University of North Staffordshire NHS Trust and Mid Staffordshire NHS Foundation Trust [2015] EWCA Civ 1119,
“This was an accurate distillation of the law set out in cases such as Bonnington Castings Limited v Wardlaw [1956]AC 623 and Fairchild v Glenhaven Funeral Services Limited [2003] 1AC32.”
Lord Dyson’s apparent belief that the law is clear and straightforward has to be considered over-sanguine, particularly in relation to the meaning of the concept “material contribution of damage “ and the basis upon which a modification of “but for “ causation might arise.
In reality, a comprehensive definition of the term “material contribution to damage” remains elusive. There are two essentially unproblematic ways in which the concept applies, but it appears that judges and academics are still seeking to elucidate a third way in which the term could be...
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