News Category 2
Duties to Pregnant Women and New Mothers: The Small Element of Civil Liability for Breach of Statutory Duty That Remains - Gordon Exall, Zenith Chambers
21/03/14. There is one, very small, element of civil liability for breach of statutory duty that remains. Here we look at the action for breach of duties owed to pregnant women and breastfeeding mothers. The exceptions are limited but practitioners need to be aware of them.
I am grateful to Cenric Clement-Evans of New Law Solicitors in Cardiff for directing my attention to these two exceptions. They can be found in The Health and Safety at Wok Act 1974 (Civil Liability) (Exceptions) Regulations 2013 (2013 No 1667)...
Image ©iStockphoto.com/mihhailov
Contractor Duty of Care: Clarification for Occupiers (Yates v National Trust) - Nicholas Thorne, Berrymans Lace Mawer LLP
19/03/14. Claims involving occupiers are seldom straightforward and for that reason, continue to exercise the minds of lawyers and judges alike. In contrast to claims against an employer, where the duty of care is non-delegable, the starting point is to examine whether a duty of care exists. In cases involving the state of the premises, then one need look no further than the Occupiers Liability Acts (OLA) 1957 and 1984. But, where we are considering an activity, (of which there can be an infinite variety), that has taken place on the occupier’s land, then one has to return to the principles of common law negligence. Add in the proverbial independent contractor and we bring into play the statutory obligations which exist under the various regulatory provisions, for example, the Work at Height Regulations (WAH) 2005.
An occupier can therefore expect to have to defend his position on several fronts and so it proved in the recent case of Yates v National Trust. The claimant was a tree surgeon, working for an arboricultural contractor, who had been engaged by the defendant to carry out tree works at its property. In circumstances which are not entirely clear, the claimant fell out of the tree in which he was working and sustained...
Image cc flickr.com/photos/markhillary/
Fraud, Burdens of Proof and Pleadings - Andrew Mckie, Clerksroom
18/03/14. Do You Have To Prove Fraud? In the majority of cases, it may be argued that there will be no need to prove fraud, even if there is sufficient evidence in order to plead it. In many cases, the Defendant’s insurer will not want to plead the issue of fraud at Trial, unless it is the Defendant’s insurer’s intention to go after the Claimants for contempt of Court proceedings in the event of a finding of fraud by the Trial Judge.
The reason many Defendant’s insurers will not want to plead the issue of fraud, and simply put the Claimant to strict proof in relation to the issues of breach of duty, causation and quantum, is that if the Trial Judge makes a finding of fraud, it is very unlikely the Claimant’s after the event insurer, will indemnify the Claimant in relation to the issue of costs and the Defendant’s insurer, even after winning a Trial on the issue of fraud, will be left to go after the Claimant for their costs and it is usually the case that the Claimants in these sorts of cases but not in all cases, have very little assets, property or other funds to cover the Defendant’s costs bill and invariably the Defendant’s insurer remains unable to recover their costs in some circumstances for these reasons.
It may be argued that for the Defendant’s insurer in the majority of circumstances it may simply be better that Claimants’ claims are dismissed on the balance of probability as failing to prove breach of duty, causation or quantum, rather than an outright finding of fraud by the Trial Judge.
The only exception to this, is likely to be where...
Image ©iStockphoto.com/payphoto
Read more (PIBULJ subscribers only), or click below to purchase the book.
PI Practitioner, March 2014
16/03/14. 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.
Extensions of Time
MA Lloyd & Sons Ltd v PPC International Ltd [2014] EWHC 41 (QBD)
The parties had failed to comply with a court direction as to the service of witness statements on a particular issue. The Defendant applied for an extension of time and the parties put forward a consent order with a new timetable. Turner J debarred the Claimant from...
Image ©iStockphoto.com/EmiliaU
Phantom Passengers - Andrew Mckie, Clerksroom
15/03/14. Chapter 5 of 'RTA Allegations of Fraud in a Post-Jackson Era: The Handbook' by Andrew Mckie. Bogus Passenger Allegations: How do they arise? It is a 4pm on a dark December evening. The Claimant has just picked his two young children up from school, who are five and six respectively. He is travelling home. He is stationary at traffic lights and the Defendant collides with the rear of his vehicle. The Defendant’s driver gets out of the vehicle after the accident and walks over to the Claimant’s vehicle. The Claimant’s driver also gets out, they walk around to the back of the vehicle, examines the damage and exchange insurance details. The Defendant apologises and admits fault.
The day after the accident, the Claimant and his two young children start to experience neck and back pain. They attend the GP and are given painkillers. A week later the Claimant and his two children are still experiencing pain so they decide to make a claim for personal injury. They consult Solicitors, who think it will be a straightforward claim. The Solicitors send the Claimant and his children for GP reports. The claims are submitted to the low value portal and liability is admitted. The medical reports are submitted to the Defendant’s insurer via the low value portal and offers of settlement are awaited.
A straightforward claim you may think? The Defendant’s insurer writes to the Claimant’s Solicitors after 10 weeks, saying they have concerns about the claim, but nothing more and refuse to disclose their concerns, pending further investigation. The claims are timed out of the low value portal. The Claimant’s Solicitors issue Court proceedings for all three Claimants and a Defence is filed stating that there was only one child in the car, a female. They say therefore, one of the infants was not in the vehicle. Does this sound familiar?
Phantom passenger allegations, arguably, are becoming more and more prolific in personal injury litigation and the Defendant’s insurers are holding back the nature of the allegation in more instances, until proceedings are issued.
Image ©iStockphoto.com/trevarthan
Read more (PIBULJ subscribers only), or click below to purchase the book.
More Articles...
- A Review of Recent Criminal Injury Compensation Authority (CICA) Cases - Sophie Beesley, Old Square Chambers
- Courts Take Robust Approach Post Mitchell - Dr Maggie Bloom, Hardwicke
- Yates v National Trust - William Norris QC, Thirty Nine Essex Street
- Rebecca Coles v David Perfect - Augustus Ullstein QC, Thirty Nine Essex Street
![Appeal judge rules that credit hire company has no costs liability following a finding of fundamental dishonesty in personal injury case: RSA v. Fastrack Solutions Limited [2023] 4 WLUK 92 - David Bowden, Erimus Chambers](/content/images/resized/images/stories/carkeys_72_72.jpg)
