News Category 3
Summary of Recent Cases, March 2019
15/03/19. Here is a summary of the recent notable court cases over the past month. 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.
Summary of Recent Cases - Substantive Law
Perry v Raleys Solicitors [2019] UKSC 5
From 1999 to 2010, a government-backed scheme provided tariff-based compensation (i.e. based on the severity of the injury) to former miners suffering from Vibration White Finger ("VWF") following exposure to excessive vibration. The scheme offered two types of compensation, the first approximating to an award of general damages, with the second type being similar to special damages. The special damages award could include a "Services Award" to pay for domestic assistance, the recoverability of which depended on establishing what became known as "the factual matrix". In summary, the applicant had to show...
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Infant Pedestrians: Can You Blame the Parents? - Edward Cleary, DWF
14/03/19. Ellis v Kelly & Anor, High Court (QB), 31 July 2018 - The court declined to make a finding of contributory negligence against an 8 year old boy involved in a road traffic accident and dismissed the contribution claim against his mother. The claimant's momentary misjudgement had to be balanced against the reckless conduct of the defendant, and it would be undesirable to routinely attempt to regulate decisions and actions arising in the course of normal daily parenting. Edward Cleary reviews the judgment in the High Court case of Ellis v Kelly (2018).
Facts
The accident occurred on 20 September 2008 near to a zebra crossing on Gospel Lane in Birmingham, which was a quiet road with a children's playground on one side and a skateboard park on the other.
The claimant was 8 years and 8 months old. For that summer or perhaps a little before, he had been allowed to go out without adult supervision, but only if accompanied by his older cousins. His mother had told him to be careful, watch the road and stay with the others.
The accident occurred when the claimant had left the playground to find one of his cousins. He was seen to cross the road at the zebra crossing and then turn left towards the skateboard park. It was inferred that the claimant did not find his cousin at the skateboard park or the nearby shop and decided that he should return to the playground.
The claimant was struck by the defendant's car as he crossed the road and sustained a severe brain injury. Primary liability for the accident was admitted by the defendant's insurer and the defendant was not called to give evidence at trial.
Findings
Mrs Justice Yip made the following findings of fact in respect of the accident circumstances...
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Guilty Plea for Healthcare Provider’s Breach of Health and Safety Law - Alison McAteer, Brodies
08/03/19. The tragic case involving a healthcare company charged with breaching health & safety legislation after the death of a young patient in its care, may have been the “first prosecution of its kind”.
Most health & safety prosecutions involve injured workers – usually employees - but this case serves as a reminder that an organisation’s duties under health & safety law extend to others that may be affected by their actions.
Background
In August 2012, 14-year-old Amy El-Keria was admitted to Ticehurst House, a Priory hospital in East Sussex, as an urgent referral from an NHS Trust. She had complicated healthcare needs and a history of attempts of self-strangulation. On admission, Amy was assessed as “high-risk” and placed on observation every 15 minutes.
The inquest into Amy’s death noted that over the next three months, Amy was restrained and sedated at times, and that on 12 November 2012 Amy told staff she wanted to commit suicide. Her monitoring schedule remained at 15 minute intervals, and she was otherwise allowed to remain unsupervised. Later that day, she was found unresponsive in her room. She had used a football scarf to hang herself...
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£23m settlement for brain injured child: the cost of medical negligence - Ben Gent, Express Solicitors
28/02/19. In December 2018, the High Court approved a £23m compensation settlement for a 10-year-old boy (AC) who suffered brain damage at birth as a result of medical negligence, in what relatively superficial research1 suggests is the third largest injury settlement ever reported in this jurisdiction.
AC, whose identity is protected under an anonymity order, developed cerebral palsy after hospital staff missed signs of distress during his mother’s labour in 2008. Investigations revealed that neither the consultant obstetrician nor the midwife at St George’s Hospital in Tooting, London, were paying attention to the CTG trace, which recorded the pattern of AC’s heartbeat. As the trace deteriorated there was a delay in the delivery, which meant AC was deprived of oxygen for the 15 minutes before he was born.
The settlement was reached under a discount rate of -.75%, with an agreed lifetime multiplier of 882. There had been a full admission of liability and the Claimant’s challenging behaviour demanded a regime of constant supervision. Factor the efforts of a skilful and meticulous legal team3 and the value expressed as a lump sum exceeded £23m4.
Solicitors were retained in 2007 and accepted a part 36 offer in November 2018 – showing this case was a marathon rather than a sprint, and one which gave ample time for a number of subplots and legal skirmishes.
This article considers five aspects of the case.
Anonymity
It is no accident that this report appears in the legal and business pages, rather than sensationalised headlines in the red tops proclaiming lottery style pay outs. This Claimant’s privacy and freedom from intrusion is guaranteed under an anonymity order, and our view is that such applications are rarely contentious and always worth considering. The trade-off is that the reports are denied context, with nobody being able to describe how it feels to be changing a ten year old’s nappy at three in the morning, or to be told by a well-meaning head teacher that another hair-pulling incident means school exclusion for a child whose injuries permit feelings of guilt, shame and hopelessness, but have stolen away the self-control and restraint needed to regulate the impulse to lash out in the first place.
Liability
Lawyers must understand disclosure and, in this case, specific requests yielded an internal investigation report suggesting that...
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Summary of Recent Cases, February 2019
15/02/19. Here is a summary of the recent notable court cases over the past month. 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.
Summary of Recent Cases - Substantive Law
Stephen Mays (A Protected Party by his Litigation Friend, the Official Solicitor) v Drive Force (UK) Ltd [2019] EWHC 5 (QB)
In this case, the Claimant had suffered a traumatic brain injury and orthopaedic injuries following an accident at work. The circumstances of the accident were that the Claimant fell from the top of the deck of a lorry as a result of a defective safety rail. As a result, he had been unable to return to paid employment and did not...
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More Articles...
- Deal or No Deal? Brexit and Accidents Abroad - Kelvin Farmaner, Trethowans LLP & FOIL
- The 'scope of duty test' for causation: when 'but for' is just not enough - James Weston, 7BR
- The ambit of QOCS considered (again): who can recover costs in cases outside the straightforward Claimant v Defendant scenario? - Alice Nash, Hailsham Chambers
- Summary of Recent Cases, January 2019
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