Vulnerable witnesses: AXX v Zajac [2022] EWHC 2463 (KB) - Anisa Kassamali, Temple Garden Chambers

24/11/22. CPR Practice Direction 1A on the participation of vulnerable litigation in civil proceedings came into force in April 2021. The High Court (Master McCloud) considered the provisions for the first time in AXX v Zajac [2022] EWHC 2463 (KB).

Background

The claim relates to personal injuries suffered by Mr AXX in 2016 in a road traffic accident with Mr Zajac. Mr AXX alleges that, amongst other minor injuries, he suffered a traumatic brain injury with various neuropsychiatric symptoms resulting from this. Mr Zajac denies that Mr AXX’s psychiatric condition was caused or contributed to by the accident.

The core issue before Master McCloud was whether there should be a split trial between causation and quantum. This brought CPR Practice Direction 1A into play.

Mr AXX is not in receipt of antipsychotic medication because he will not take it. His symptoms mean that he is not engaging well with medical experts, which his representatives say limit those experts’ ability to provide clear prognoses ([7]-[10]). They take the view that with a case manager appointed and with further medical input it would make it more likely that he would receive medication. However, such input comes at a significant cost. An interim payment is unlikely to be forthcoming without a decision on causation, and so they ask for a split trial to facilitate this medical input and so assist Mr AXX to “place his evidence before the court” ([12]-[17]).

High Court decision

Master McCloud ordered a split trial on causation and quantum ([30]).

It was accepted by the parties that Mr AXX fell within scope of the Practice Direction. He was “vulnerable” by reason of his psychiatric conditions ([22]).

CPR Practice Direction 1A.1(5) directs the Court as follows...

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The Civil Liability (Contribution) Act 1978 Is Without Overriding Effect - Sebastian Bates, Temple Garden Chambers

22/11/22. The Soldiers, Sailors, Airmen and Families Association – Forces Help v Allgemeines Krankenhaus Viersen GMBH [2022] UKSC 29

Introduction

The question in The Soldiers, Sailors, Airmen and Families Association – Forces Help was whether the Civil Liability (Contribution) Act 1978 has mandatory or overriding effect (“overriding effect”) so that it applies to all contribution claims brought in England and Wales, or whether it applies only when domestic choice of law rules indicate that the contribution claim in question is governed by the law of England and Wales: see [1].

Summary

Lord Lloyd-Jones JSC took as his starting point (at [27]) ‘the identification of the appropriate law by the application of domestic choice of law rules’, which in this case were the common law rules as the alleged tort had taken place before 11 January 2009. As reflected in [28], it was common ground that these dictated that ‘issues of contribution [. . .] are governed by German law’. From that paragraph through [34], he nevertheless considered ‘how choice of law rules at common law might apply to a statutory right of contribution’. He concluded that ‘a strong case can be made out for a prima facie rule that the proper law of a contribution claim under the 1978 Act is the law with which [one liable party’s] claim against [another] is most closely connected’ and that ‘[i]t [was] against this background that it [was] necessary to consider whether the 1978 Act [had been] intended to have overriding effect or whether its provisions apply to contribution proceedings only when English law is applicable pursuant to choice of law rules’. Accordingly, the ‘question for consideration’ was ‘whether Parliament [had] cut across the normal rules of the conflict of laws and laid down special rules for the application of the 1978 Act’.

Lord Lloyd-Jones JSC could see nothing in the Act expressly or impliedly providing for overriding effect: see [37]–[48]. Having considered its history at [49]–[51], he concluded that there was nothing to support the view that the Act has overriding effect. He observed, at [52]–[55], that the Law Commission was of the contrary view in the years following its enactment.

Lord Lloyd-Jones JSC then considered the authorities invoked in favour of the Act’s overriding effect, noting (at [60]) that ‘the issue of overriding effect was not argued’ in a number of these cases and critiquing (at [68]) the reasoning as to the issue in Arab Monetary Fund v Hashim (No 9). After largely dismissing an Australian judgment as ‘of only indirect relevance’ at [72], he turned to ‘academic commentary’ at [73]–[76], describing criticism of Arab Monetary Fund as ‘compelling’.

Conclusion and Comment

Drawing these threads together, Lord Lloyd-Jones JSC described himself (at [81]) as ‘persuaded that the 1978 Act was not intended to have overriding effect so as to displace conventional choice of law rules’. This conclusion will be significant to practitioners acting for parties liable alongside others for a tort where the proper law is foreign.

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Judicial College Guidelines 16th Edition: Damages for Noise Induced Hearing Loss - Jim Hester, Parklane Plowden Chambers

02/11/22. Following my earlier article concerning Work-related Limb Disorders, this article concentrates on changes relevant for assessing damages for Noise Induced Hearing Loss under the 16^th Edition of the JC Guidelines.

What stays the same?

Many features of the guidance in relation to valuing NIHL cases remains the same as the 15th Edition:

• ‘Deafness/ Tinnitus’ remains as part B of Chapter 5 – Injuries Affecting the Senses.

• The section most likely of use for NIHL cases is (d) Partial Hearing loss and/ or tinnitus.

• The guidelines in this section largely remain the same. Increases to the values are made for inflation. Non-Simmons v Castle figures are removed.

What is different?

However, part B now contains a new section:

“(e) Acceleration of, or time-limited need for, the use of hearing aids.”

An award of about £5,000 is suggested for a 5-year acceleration in need for hearing aids. About £9,700 is suggested for a 15-year acceleration.

In some ways this might be considered to be a variation of section (d). If a claimant is able to prove NIHL of, say 7 dB which could be considered under section (d), then there is likely to have been an acceleration in the need for hearing aids, or there will be.

However, what this might open up is an argument that even if there is no noticeable effect on hearing with very low levels of hearing loss (say 2 dB), then if the claimant is able to prove an acceleration in need for hearing aids, then the damage will be compensable nonetheless. Since a 5-year acceleration receives about £5,000, it would be possible to argue that shorter periods are also compensable.

Of course, a change to the Judicial College Guidelines does not change the law in relation to de minimis. It may, though, support such an argument.

Conclusion

For the vast majority of cases, it is likely that the above change will not make a great deal of difference. Quantum has always taken into account any acceleration in need for hearing aids, if the same can be proved.

Time will tell whether arguments will be raised in relation to cases of very low levels of loss where there is no noticeable effect on an individual, but an acceleration in need for hearing aids can be proved.

In my next article, I shall look at the changes in relation to Asbestos-related Disease.

This article was originally published at https://jimhester.me

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