News Category 3
Justified medical reports: A matter for costs not exclusion. Marva Greyson v Ryan Fuller [2022] EWHC 211 (QB) - Rochelle Powell, Temple Garden Chambers
21/02/22. This High Court appeal decision confirmed that the “draconian reading” of 8BPD6 in Mason v Laing was incorrect and unwarranted. The sanction for simultaneous rather than sequential disclosure gave rise to the risk of not recovering costs at the end of the process, not the exclusion of the evidence.
Background
The claimant obtained a number of medical reports under the RTA Protocol (“the Protocol”). However, these reports were disclosed to the defendant simultaneously, as opposed to sequentially as required under the Protocol. The issues before the court were whether the further medical reports were not “justified” within the meaning of paragraph 7.8B(2) of the Protocol; if so, what (if any) were the consequences for the claimant of the reports not being “justified”; and, if there were consequences, did they follow automatically or is it a case where the court must exercise its discretion to impose, or grant relief from, sanctions?
The defendant argued that the failure to disclose the first medical report before disclosing the further reports meant that the claimant was debarred from relying on any reports apart from the first one, while the claimant contended that, even if there had been a breach, there was no automatic sanction of inadmissibility and the claimant ought to be allowed to rely on the further reports at the Stage 3 hearing.
The Law
The RTA Protocol states at paragraph 7.8B(2) that:
“Soft tissue injury claims – medical reports …
7.8B In a soft tissue injury claim –
(1) it is expected that only one medical report will be required;
(2) a further medical report, whether from the first expert instructed or from an expert in another discipline, will only be justified where–
(a) it is recommended in the first expert's report; and
(b) that report has first been disclosed to the defendant; and
(3) where the claimant obtains more than one medical report, the first report must be a fixed cost medical report from an accredited medical expert selected via the MedCo Portal and any further report from an expert in any of the following disciplines must also be a fixed cost medical report –
(a) Consultant Orthopaedic Surgeon;
(b) Consultant in Accident and Emergency Medicine;
(c) General Practitioner registered with the General Medical Council;
(d) Physiotherapist registered with the Health and Care Professions Council.
…”
CPR 8BPD governs Stage 3 proceedings, including for soft tissue claims and provides:
“5.1 An application to the court to determine the amount of damages must be started by a
claim form.
…
Filing and serving written evidence
6.1 The claimant must file with the claim form –
(1) the Court Proceedings Pack (Part A) Form;
(2) the Court Proceedings Pack (Part B) Form (the claimant and defendant's final offers) in a sealed envelope…
(3) copies of medical reports…
6.1(A)
(1) In a soft tissue injury claim, the claimant may not proceed unless the medical report is a fixed cost medical report. Where the claimant includes more than one medical report, the first report obtained must be a fixed cost medical report from an accredited medical expert selected via the MedCo Portal… and any further report from an expert in any of the following disciplines must also be a fixed cost medical report…
(2) The cost of obtaining a further report from an expert not listed in paragraph (1)(a) to (d) is not subject to rule 45.19(2A)(b), but the use of that expert and the cost must be justified…”
Decision
Refusing the Defendant’s appeal and allowing the Claimant’s appeal, Mrs Justice Foster held that the simultaneous disclosure had not amounted to a failure to properly serve in accordance with CPR PD 8B paragraph 6. As to the meaning of the word “justified” Foster J held that “the meaning of “justified” must be ascertained by reference to the fact that the sanction of failing to recover costs, is written through every part of the scheme as the default sanction for compliance failures…” Accordingly, it did not relate to the admissibility of the evidence under the protocol and the sanction for simultaneous rather than sequential disclosure of was a matter for the costs stage, not exclusion of the evidence.
Concluding remarks
Mrs Justice Foster also pointed out that the rules were amended on 31st May 2021. The new rules do not provide for the first report to be sent in advance and eliminate the issues arising in this appeal.
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The Common Law Doctrine of Mistake & Part 36 Offers: O’Grady v B15 Group Ltd [2022] EWHC 67 (QB) - Nicholas Dobbs, Temple Garden Chambers
17/02/22. In O’Grady v B15 Group Ltd,[1] by way of background, the Claimant's husband had been killed following a collision with a lorry, driven by an employee of the Defendant. Prior to the issue of proceedings, the Defendant's solicitors put forward a Part 36 offer whereby they offered to apportion liability on the basis of a 60/40 split in favour of the Claimant. At that stage the Defendant had not made any formal admission in relation to primary liability. The Claimant did not accept this offer, but neither was it withdrawn. Subsequently, before the claim was issued, the Defendant conceded primary liability but made clear that contributory negligence remained in dispute. After the claim was issued, the Claimant's solicitor put forward a Part 36:
The Claimant offers to resolve the issue of liability of on 80/20 basis. For the avoidance of doubt if the Defendant accepts this offer it will only be required to pay 20& of the Claimant's damages.
The Defendant's solicitor accepted the offer and the Claimant’s solicitor replied soon after that the offer he intended to make was 80/20 in the Claimant's favour. The Claimant issued an application for permission to withdraw the offer or to change its terms under CPR 36.10(2)(b). The High Court was accordingly asked to consider whether a mistake in the formulation of a Part 36 Offer and known to be a mistake by the recipient, should prevent that offer from constituting an effective and binding Part 36 offer. The Defendant argued that Part 36 was a self-contained code and that there was no basis within it, or otherwise within the CPR or relevant case law, to import the doctrine of mistake. The Court held that the doctrine of mistake did apply:[2]
I am satisfied that the doctrine of common law mistake can apply to a Part 36 offer in circumstances where a clear and obvious mistake has been made and this is appreciated by the Part 36 offeree at the point of acceptance. Authority is entirely in support with the application of the doctrine. Nothing about Part 36 being a self-contained code excludes it. On the particular facts of this case, it is entirely compatible with a procedural code that is intended to have clear and binding effect but not at the expense of obvious injustice and the Overriding Objective still has application.
On the facts of this case, I agree with the Claimant's submission that the Overriding Objective is entirely consistent with the merits of her Application and it should be granted. Conversely, the Overriding Objective provides little support for the Defendant's position once mistake is accepted as in issue. Indeed, it is difficult to think how the Overriding Objective would support the Defendant's position at all. Plainly, "saving expense" [r.1.1(2)(b)] does not have as its primary aim the substantial reduction of a party's liability for damages owing to the mistake of another "of a kind which in law would render the agreement void".
Can secondary victims claim for psychiatric injury in clinical negligence claims? A review of the decision in Paul v The Royal Wolverhampton NHS Trust [2022] EWCA Civ 12 - Rochelle Powell, Temple Garden Chambers
26/01/22. The cases of Paul v The Royal Wolverhampton NHS Trust (“Paul”); Polmear v The Cornwall Hospital NHS Trust (“Polmear”); and, Purchase v Ahmed (“Purchase”) were heard as conjoined appeals. The question for the Court of Appeal was whether and in what circumstances a defendant to a clinical negligence claim could be held liable for the psychiatric injury caused to a close relative of the primary victim of that negligence. In all three cases, the defendants were alleged to have failed to diagnose the primary victim’s life-threatening condition and sometime after that negligent omission, the primary victim suffered a traumatic death. In Paul and Polmear, the death of the primary victim occurred in the presence of close relatives, causing them psychiatric injury. In Purchase, a close relative came upon the primary victim immediately after her death. The question in each case was whether the necessary legal proximity existed between the defendant and the close relative.
Relevant Authorities
The Master of the Rolls reviewed the relevant authorities. The question of legal proximity was considered in Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 310 (“Alcock”). In that case, Lord Oliver identified the following five elements from which the essential requirement of proximity had to be deduced:
“First, that in each case there was a marital or parental relationship between the Plaintiff and the primary victim; secondly, that the injury for which damages were claimed arose from the sudden and unexpected shock to the Plaintiff’s nervous system; thirdly, that the Plaintiff in each case was either personally present at the scene of the accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards; and, fourthly, that the injuries suffered arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim. Lastly… a close temporal connection between the event and the Plaintiff’s perception of it combined with a close relationship of affection between the Plaintiff and the primary victim”.
Of particular relevance was the judgment of Lord Dyson in CrystalTaylor v A. Novo (UK) Ltd [2013] EWCA Civ 194 (“Novo”). Novo was also an accident case, where the Claimant’s mother had suffered a minor injury at work. The injuries the mother sustained caused deep vein thrombosis and consequent pulmonary emboli from which she died 3 weeks later, in the presence of her daughter. The claimant suffered significant post-traumatic stress disorder. However, Lord Dyson found that, because the claimant was not present when the accident occurred, the necessary element of temporal proximity was lacking.
Decision
The Court of Appeal held that the five elements required to establish legal proximity set out in Alcock, applied as much to clinical negligence cases as they do to accident cases. Therefore, the Court was bound by the decision in Novo, so that “no claim can be brought in respect of psychiatric injury caused by a separate horrific event removed in time from the original negligence, accident or a first horrific event”. It followed that all three claims failed and the claimants were not entitled to damages as secondary victims.
However, in its judgment, the Court of Appeal expressed reservations about whether Novo is a correct interpretation of the limitations on liability to secondary victims. The Master of the Rolls indicated that he would be prepared to grant permission to appeal to the Supreme Court, if sought. The Vice President agreed, stating that the issues merited consideration by the higher court.
The claimants have already applied for permission to appeal. Given the indication of both the Master of the Rolls and the Vice-President, it seems likely that the case will proceed to the Supreme Court.
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The Interpretation of 'Road Or Other Public Place' In The Road Traffic Act 1988 - Nicholas Dobbs, Temple Garden Chambers
24/01/22. In Brown v Fisk [2021] EWHC (QB) 2769, Master Dagnall gave judgment on an application for reverse summary judgment brought by the Second Defendant. The Claimant had brought a claim asserting that he was wrongfully injured by a car driven by the First Defendant in an area of land at Ham Lane, Lewes, Sussex (referred to in the judgment as “the yard”) on 16 September 2016. The Claimant claimed against the Second Defendant under section 151 of the Road Traffic Act 1988 on the basis the yard was, at the material time, “a road or other public place”. The Claimant also claimed against the Third Defendant, the Motor Insurance Bureau, on the basis that they were liable under the Uninsured Drivers' Agreement. The Second and Third Defendants disputed that the yard was “a road or other public place”, and argued that if they were right then neither of them would be liable. The Court surveyed at length the relevant case law concerning the definition of “a road or other public place”, noting the difficulties in reconciling some of the relevant decisions. It was held, at paragraph [72]:
“72. As I have said I have found trying to find a coherent rationalisation of the various case law difficult, but having considered the various judgments and, in particular, Richardson following May, and May's apparent approval of both Vivier and Spence, it seems to me that the true distinction is whether the area is used, and allowed by the owner to be used, by visitors who are only coming to enjoy the linked owner premises for a private purpose of the owner, or whether there is some real and significant number of visitors whose access is tolerated, who are there other than only for the owner's truly private purposes. By “the owner's truly private purposes” I mean purposes of the owner which are private in nature rather than being the general public doing something which the general public generally does as such, for example buying drinks in a pub, or cars from a car franchise; and where those private purposes dominate the purpose of the visit so sufficiently so as to make the visit private rather than public. It seems to me that that is an effective rationalisation of, and is consistent with, the case law, and in particular the basic principle derived from Harrison that the essence of a public place is actual use by the public at least tolerated by the owner. The cases make clear that the purpose of the access and use of the area is key, which underlies the decision in: first, Pugh, where the access was simply for the purposes of the private members' club, which was a private purpose which dominated the car accessing the area; second, Spence, where the purpose was simply that of the foundry business which dominated why anyone would go there; and third, Richardson where, again, the purpose was simply that of the...
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Apportionment of Liability In Road Traffic Accidents Involving Multiple Collisions - Nicholas Dobbs, Temple Garden Chambers
21/01/22. In Martini v Royal Sun Alliance Insurance Plc [2022] EWHC 33 (QB), the High Court was required to consider claims in negligence arising from a series of motor vehicle collisions, all occurring within a few minutes of each other before dawn on 15 October 2015, on an unlit section of the M20. The collisions were precipitated by the driver of a Fiat van falling asleep at the wheel and crashing into an HGV in front of him. The van remained stranded and unlit in the middle of a dark carriageway. The collisions that followed thereafter are summarised at the beginning of the judgment (at [3]). The damage and serious injuries that resulted gave rise to two separate claims, which were tried together. At trial there were five separately represented parties, and it fell to the court to consider the apportionment of liability.
The analysis of the relevant law begins (at [54]) by citing the comments of Master Davison in Stark v. Lyddon [2019] EWHC 2076 (QB), at [27]:
“I turn then to the apportionment of liability, which requires an assessment of the blameworthiness and causative potency of the negligence found against each motorist. Cases on apportionment formed the bulk of the authorities cited to me. But, as has been said many times before, this is an exercise which is exquisitely fact-sensitive and previous decisions are of limited assistance.”
Accepting that the apportionment of liability is highly fact-sensitive, the Court noted that there were two important legal principles to be borne in mind when conducting its analysis (at [55]).
Firstly (at [56]), the Court should not require the same standard of care from a party forced to exercise judgment in the ‘agony of the moment’ as it may do from a party who reaches a decision without being subjected to such pressures (at [56]). The Court referred to YYY, Aviva Insurance Ltd. v. ZZZ [2021] EWHC 632 (QB), at [56]:
“... it is clear that the conduct of the defendant cannot be judged with the benefit of hindsight or, in my view, having regard to nice calculations done by experts with the benefit of computer models and calculators. What matters is whether, having identified a potential hazard, the claimant has established that the steps taken by the defendant to mitigate it were not reasonable steps or a reasonable response even in the agony of the moment.”
Secondly (at [59]), assessing what is a relevant cause in law for the purposes of attributing tortious liability, in road traffic accident cases and more generally, is an exercise that requires the application of common sense. The Court cited Wright v. Lodge [1993] RTR 123 (CA), in which Staughton LJ observed at p.132:
“... Causation depends on common sense and not on theoretical analysis by a philosopher or metaphysician ... Not every cause ‘without which not’ or ‘but for’ is regarded as a relevant cause in law. The judge or jury must choose, by the application of common sense, the cause (or causes) to be regarded as relevant.”
It was ultimately determined that the negligent driving of the first driver, who fell asleep at the wheel, was the sole relevant cause of the damage and injuries sustained. The judgment contains analysis of the actions taken by other drivers against whom allegations of contributory negligence were made and summarises some of the closing submissions, much of which demonstrates the difficulty in applying intensive, forensic scrutiny to split-second decisions. Although that analysis is fact-sensitive, practitioners may find the application of the relevant principles here both useful and instructive for similar cases.
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