News Category 3
First instance County Court decision disallows medical agency cut of costs claimed in a medical report on the fixed costs regime - Paul Erdunast, Temple Garden Chambers
17/06/21. First instance County Court decision disallows medical agency cut of costs claimed in a medical report on the fixed costs regime: Powles v Hemmings, 23 April 2021, as reported on Civil Litigation Brief. DDJ Akers decided that the markup made by a medical agency on the costs of a medical report was not recoverable. DDJ Akers took the view that the medical agency’s costs are already accounted for in the fixed costs regime.
Facts
The background facts to this case are irrelevant to the question before the court. The Claimant invoiced £750 excluding VAT for a psychological report that was obtained. The Defendant requested a breakdown of the invoice, which was before the Court. The breakdown stated that £350 represented the consultation fee, examination, and production of the report. The £400 were ‘agency costs’ such as issuing a consent form, issuing an instruction letter and supporting details to the expert, and quality checking the report before sending it to the Claimant’s solicitors. The question was whether the £400 was recoverable
The Defendant’s argument that the ‘agency costs’ are not recoverable
The Defendant made its argument on the basis of Aldred v Cham (incorrectly referred to as ‘Chan’ in the judgment). In this case, the cost of an advice on infant settlement were not recoverable because they were deemed to be within the fixed recoverable costs within table 6B of CPR 45.29C.
The Defendant submitted that Aldred v Cham was analogous to this case because the...
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Case Report: Breakingbury v Croad, Cardiff County Court, 19 April 2021 - Harry Peto, Temple Garden Chambers
15/06/21. The Claimant sought damages from the Defendant arising from her treatment as an NHS patient at a particular dental clinic. The Defendant was the owner of the practice at the time of the allegedly negligent acts (which were carried out at the practice but not by the Defendant personally, the Defendant having retired some years earlier).
The Defendant denied liability on the ground that the dentists who carried out the relevant work were all self-employed.
Vicarious Liability
The Court held that the Defendant was vicariously liable for the negligence of the self-employed dentists who carried out the work at the Defendant’s clinic.
The Defendant was found to have owed the Claimant a non-delegable duty of care, following Woodland v Swimming Teachers Association (2014) AC 537. The Claimant had not chosen to receive treatment from particular dentists, but from the clinic as a whole. When a dentist left the clinic, the Claimant would be allocated a new dentist (chosen by the clinic). The Claimant paid the clinic for her treatments and not individual dentists. She had no control over which dentist would treat her. Further, the allegations of negligence related to a central function of the clinic, and there was sufficient control of the clinic over the dentists for this to be regarded as ‘akin to employment’. Finally, the Judge could not conclude that the dentists who carried out the treatment were in business on their own account.
Limitation
The Defendant further sought to defend the claim on the ground of limitation.
The Court found that the action was not statute-barred, as the negligence occurred as part of ongoing treatment and the Claimant received treatment regularly. The Court stated that it would, if necessary, have exercised its discretion under s.33 of the Limitation Act 1980 in any event, as a fair trial of liability and quantum could still take place.
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Noise Immission Level (NIL) Part 3: More complicated features - Jim Hester, Parklane Plowden Chambers
08/06/21. This third article in relation to the Noise Immission level (NIL) considers some of the more complicated or arguable features. The first article considered the basics of the NIL. The second article considered how the Coles guidelines use the NIL.
Notches/ bulges between 10 – 20 dB with a NIL between 90 and 100 dB (A) NIL
As covered in the second article, the Coles guidelines set out two different levels in relation to the notches/ bulges and the NIL that is required.
For a R2 (a) case: a 10+ dB notch/ bulge will require a NIL of 100 dB (A) NIL or more.
For a R2 (b) case: a 20+ dB notch/ bulge will require a NIL of 90 dB (A) NIL or more.
On the face of it, the combination of audiometry and NIL either results in a Coles ‘pass’ or not.
However, what happens if the notches/ bulges are somewhere between 10 – 20 dB and the NIL is between 90 – 100 dB (A) NIL?
However, it is potentially arguable that different permutations may also support a NIHL diagnosis. If a claimant has a NIL of, say, 95 dB (A) NIL, there must be a point at which a notch/ bulge is sufficiently large for a diagnosis of NIHL?
This might be especially arguable in a ‘near-miss’ case. For example, where the notch/ bulge is, say, 18 or 19 dB (so almost a R2 (b) level) and the NIL is, say, 98 or 99 dB (A) NIL, so almost at a R2(a) level.
It could be argued (and is sometimes argued) that this is not ‘against’ Coles but rather it is an interpretation of the guidelines. Of course, the guidelines suggest some interpretation can be done by medical experts.
Conversely, if there was a NIL of, say, 91 and a notch/ bulge of only 11 or 12 dB, this would seem to be too far away from the guidelines to be arguable.
However, in a case where the bulge is even greater than 20 dB (say 30 dB), I believe that it would be difficult to argue that an even lower NIL than 90 dB (A) NIL would be needed. It seems likely that with such a relatively low amount of noise exposure, with the presence of a very large notch/ bulge that would point away from NIHL completely. An alternative diagnosis might seem more likely.
Likewise, I do not believe that if there was very high NIL, say 110 dB (A) NIL, the bulge could be reduced. This would call into question whether the audiology itself supported a diagnosis of NIHL.
Ultimately, whether this is arguable will be a matter of judgement for the medical experts and a party’s legal representatives, based on the facts of any one case.
Averaged Audiograms and R2(b)
The second article in this series highlighted that Note 3 of Coles allows the 10+ dB notch/ bulge required in a R2(a) case to be reduced by 3 dB (so to 7+ dB) on averaged audiograms. Whether audiograms can be averaged can be a source of controversy in itself.
However, there is no corresponding assistance of how this should be applied to R2(b) cases, or indeed whether it can be at all. Should there be a reduction for averaged audiograms to 14+ dB (or 17+ dB) from the 20+ dB notch/ bulge needed on a single audiogram. Again, this is a point which is arguable (and is sometimes argued). It depends in part on the facts of the case.
It will be a matter for each medical expert as to whether such a reduction (and to what level) can or should be made in R2(b) cases.
Expert engineering evidence results in a NIL which ‘crosses’ one of the NIL limits
The next feature which can sometimes cause confusion is when an expert engineer calculates the NIL and rather than calculating a precise figure, gives a range. For example, a conclusion that the NIL is between 95 – 102 dB (A) NIL.
The first thing to consider whether this might be resolved on the facts of the case.
For example, if a claimant was exposed to a particular instantaneous noise level, if the duration of his/ her exposure was found to be longer or shorter on a daily basis, this would have an effect on the daily noise level – and in turn the NIL. So there might be a factual dispute as to whether a claimant used an angle grinder for, say, 1 or 2 hours per day. This previous article may be of interest in this regard.
Likewise, there might be a dispute as to the number of years that exposure occurred. This could be a simple matter of when a claimant began/ finished a particular role, or it might be a dispute as to when hearing protection was introduced.
What if there is a range which cannot be resolved on the facts?
However, the engineer may simply say that the exposure to noise cannot be accurately calculated on daily basis, and so the NIL falls within a range also. This, of course, may result in difficulties for the daily noise level and breach of duty, but it may also cause difficulties for the NIL.
Although engineers are sometimes reluctant to try to calculate a ‘mid-point’ of the range, in my experience lawyers and judges tend to take a more pragmatic view. It seems reasonable to take the view that the actual NIL is less likely to be at either end of the range but more likely to be somewhere towards the middle.
What should be considered that is that the decibel range is not an arithmetic scale, but a logarithmic scale. Therefore, the engineer should be asked to consider where the mid-point lies, rather than lawyers simply taking the arithmetic mid-point.
Daily noise levels below 85 dB (A) lep,d being included in the calculation for NIL
This is something which is suggested should not happen by Note 7 of the Coles guidelines.
However, it is sometimes argued nonetheless and again, it may be a question of degree. If there was, say, a daily noise level of 84 dB (A) lep,d, this might be something that is arguable (and something which is from time to time is argued).
I would suggest, however, the default position is that Coles suggests that this should not happen. There would have to be a strong argument to include any daily noise exposure of less than 85 dB (A) lep,d in such circumstances.
Conclusion
The three articles in this series, I hope, show the importance of the NIL in NIHL cases. Of course, it is necessary for a claimant to prove the NIL based on his/ her actual exposure. If a claimant fails to come up to proof, then any calculations in the engineering experts report as to NIL will be invalidated and so the case is likely to fail.
So in any NIHL case, practitioners should not just concentrate on the audiology and noise exposure/ breach of duty, but also consider whether the NIL supports a diagnosis of NIHL.
“The exposure needs to be noisy enough for long enough.”
This article was originally published at https://jimhester.me
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Fundamentally dishonest claimant committed for contempt of court in circumstances where he falsely claimed that he did not know a so-called independent witness - Paul Erdunast, Temple Garden Chambers
17/05/21. AXA Insurance UK PLC v Reid [2021] EWHC 993 (QB)
If you are advising a claimant in a case where there is an allegation of fundamental dishonesty, it is important in general to advise as to the possibility of being committed for contempt of court. However, such advice becomes more urgent if you are aware that a claimant in a factually analogous situation has in fact been committed for contempt. It is, of course, a matter for the defendant insurer as to whether they attempt to have an individual committed for contempt once they have been found fundamentally dishonest. Whether they do so will no doubt depend on their view of the gravity of the dishonesty, alongside other factors. This case is worth bearing in mind if you are advising someone where it is alleged that they in fact do know a witness who they are claiming is independent.
Relevant facts
Mr Reid been in a road traffic accident dated 29 January 2018. He made a claim for damages in which he stated in the witness statement that a Mr Summers was an independent witness. Contrary to his statement of truth, they did know each other. At the very least, Mr Reid trained Mr Summers for his first cage fight (Mr Summers went on to become a European and world kickboxing champion). Therefore his statement was not only untrue, but was untrue in such a way that it interfered with the course of justice in a material respect.
Mr Reid accepted, as he had to, that he made a witness statement signed with a statement of truth on 13 June 2019 that contained untruths that amounted to contempt of court.
The Court’s approach
Mrs Justice Eady quoted from the classic statement of Moses LJ in South Wales Fire and Service v Smith [2011] EWHC 1749 (Admin), which I reproduce in full because there should be no doubt as to how courts view contempt of court in cases such as the present...
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Costs: Ahmed and Panache Leasing Ltd v Ahmed [2021] EWHC 1021 (Ch) - Harry Peto, Temple Garden Chambers
13/05/21. This was a dispute between two brothers, one being the director of the Second Claimant. The Claimants claimed that the Defendant, who used to work for the Second Claimant, misappropriated large sums of money and assets, while the Defendant counterclaimed for 50% of the shares in the Second Claimant. There was a rather involved procedural history.
A skeleton argument was submitted by the Claimants which did not comply with the Chancery Guide and did little to assist the Court. The Defendant were late in sending their skeleton argument to the Court. Neither skeleton argument made clear what the Court must decide or how it was to decide it. Witness statements were also inadequate. A brief adjournment was held in order that counsel may narrow, or at least define the issues. They were unable to reach any agreement.
The Court dealt with the issues as best as it could, much of its decision being to order the parties to include various matters in their witness statements so that the dispute could be clarified. The way in which the applications of each side had been prepared was described as ‘lamentable’. Therefore the entirety of the costs were disallowed: no order as to costs was ordered in respect of the Claimant’s latest application or the Defendant’s, and also in respect of the costs that had been reserved at two previous interim hearings. If the Defendant’s application remains a live issue in the future (whether it would was left unclear by the Defendant’s counsel), future costs could be determined at any future hearing. The parties were also to draw this Judgment to the attention of the Court should any future interim application be made by either party.
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More Articles...
- Noise Immission Level (NIL) Part 2: NIL and the Coles Guidelines - Jim Hester, Parklane Plowden Chambers
- Noise Immission Level (NIL): Part 1, the Basics - Jim Hester, Parklane Plowden Chambers
- How falling ill with COVID may be a good reason for failure to comply with an unless order: Finvest Holdings Sarl v Lovering [2021] 3 WLUK 579 - Paul Erdunast, Temple Garden Chambers
- Practitioner's Update: Mustard v Flower & Ors [2021] EWHC 846 (QB) - Harry Peto, Temple Garden Chambers
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