News Category 3
Deal or No Deal? Brexit and Accidents Abroad - Kelvin Farmaner, Trethowans LLP & FOIL
08/02/19. It has been difficult to avoid the daily newsfeed updating us on the progress (or lack of progress) with Brexit negotiations. What is less well publicised however is the fact that the question of whether the government manages to negotiate a deal with the EU prior to 29 March will impact upon how cross border motor accident claims are dealt with after that date.
Currently a system known as the Green Card Scheme allows vehicles to move freely across the borders of all 48 subscribing countries and ensures that when a visiting vehicle causes damage, there is easy access to compensation in the victim’s home country. This system is not European-born and it should be achievable to preserve it post-Brexit.
The scheme outlined above enables cross border travel while protecting victims injured in their own country by a foreign registered vehicle. However there is another system, known as the Fourth Directive, to assist victims who are injured while abroad. This scheme is European-born and is more likely to face disruption depending on the progress of Brexit negotiations. The Fourth Directive enables victims to return home and then pursue a claim in their home country either via a local representative of the foreign insurer, or a special body known as the compensation body. Specialist claims handing companies such as Van Ameyde exist to deal with these cases. If the scheme is not maintained post-Brexit, then victims will have no choice but to pursue their claims in a foreign country, in an unfamiliar language.
The UK may well decide to keep its laws in line with the EU Motor Insurance Directives. However, if the Fourth Directive scheme is to be maintained in the UK it will require the agreement of all the other Member States. This is because, unlike the Green Card Scheme, it is based on reciprocal agreements and provisions in national laws.
Insurance companies, specialist claims handling organisations and insurance lawyers alike are keeping a close eye on Brexit developments. The outcome could impact on the way in which these specialist claims are dealt with in a variety of ways. This brief article is intended to serve as merely a reminder of the breadth of issues that may be impacted by Brexit and which were not necessarily contemplated by anyone at the time of the referendum.
Kelvin Farmaner and the team at Trethowans have many years of experience in dealing with foreign accident claims. They are active members of the Forum of Insurance Lawyers (FOIL) and Kelvin sits on FOIL’s “European Issues” Sector Focus Team.
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The 'scope of duty test' for causation: when 'but for' is just not enough - James Weston, 7BR
29/01/19. On Friday 23 November 2018 the Court of Appeal handed down judgment in Khan v MNX [2018] EWCA Civ 2609. The decision will have widespread implications for clinical negligence claims.
The Claimant wanted to know whether any child she might have would be a haemophiliac. She attended her GP. On the basis of blood tests she was advised that any child she would carry would not be a haemophiliac. The Claimant went on to have a haemophiliac child, who also suffered from unrelated autism.
The Claimant brought an action to recover for the added costs of raising a child with haemophilia and autism; she did not seek the ordinary costs of raising a child without a disability in accordance with McFarlane v Tayside Health Board [2000] 2 AC 59.
The Defendant admitted breach of duty and accepted that but for the negligent information given by the Defendant the Claimant would not have had a child and would not have had to bear the costs of raising a child with haemophilia and autism. The Defendant, however, argued that whilst the added costs of raising a child with haemophilia were recoverable, the costs related to autism were not as they fell outside the scope of the duty of care assumed by the GP.
At first instance Yip J found for the Claimant on the basis that “but for” causation was met for the costs related to autism. The Court of Appeal, however, overturned the decision. The court was required to apply the “scope of duty test” for causation as set out in South Australian Asset Management Corporation v York Montague Ltd [1997] AC 191 [hereinafter “SAAMCO”]. This was a case involving the provision of negligent property valuation information. The House of Lords held that the Claimants could only recover for losses that were...
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The ambit of QOCS considered (again): who can recover costs in cases outside the straightforward Claimant v Defendant scenario? - Alice Nash, Hailsham Chambers
28/01/19. In Cartwright v Venduct Engineering Limited [2018] EWCA Civ 1654, decided in July 2018, the Court of Appeal held that in a QOCS case with multiple defendants, the ability to recover costs from damages pursuant to CPR r.44.14(1) extended to all the defendants, not just the defendant who paid those damages. Cartwright has subsequently been relied upon, with conflicting results, in two County Court cases addressing the slightly different question of whether a counterclaiming defendant is entitled to the protection of QOCS in relation to all the costs of the action in which the claim and counterclaim were brought.
Multiple defendants
In Cartwright, the Claimant had sued several defendants for noise-induced hearing loss. He compromised his claim against certain of the defendants by way of a Tomlin order which provided for the payment of damages, and discontinued his claim against Venduct, meaning that a deemed award of costs arose in Venduct’s favour. Venduct sought to recover their costs from the payment made from the other defendants.
The Court of Appeal held that there was nothing in the wording of CPR r.44(1) to suggest that the fund from which a costs order could be met was specific to damages and interest payable by the defendant seeking to enforce the costs order. The language of the rule was wide and could plainly encompass the situation in which...
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Summary of Recent Cases, January 2019
15/01/19. 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
Young v (1) Bennett (2) Acromas Insurance Co Ltd [2018] EWHC 3555 (QB)
In this case Master McCloud considered the meaning of the words "reasonably secure" in s.2(3) of the Damages Act 1996 (requiring the court to be satisfied that the continuity of a periodical payment will be "reasonably secure" before making a Periodical Payment Order, or "PPO").
The Claimant had been seriously injured in a road traffic accident in England, liability for which had been entered against the First Defendant. The parties had come to an agreement which provided for the First Defendant's insurer, Acromas Insurance Co Ltd ("Acromas"), to make...
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Time to re-examine tree inspection regimes - Simon Jones & Susan Rands, BLM
11/01/19. In Witley Parish Council v Cavanagh [2018] EWCA Civ 2232, the claimant was seriously injured when a large mature lime tree fell across the road onto the single decker bus he was driving. The tree was on land owned by Witley Parish Council (“Witley”) which accepted that it owed a duty of care to act as a reasonable and prudent landowner and to undertake regular inspections.
The lime tree was set in the pavement of a busy public road, was adjacent to a bus stop and shelter, was close to property, leant towards the road, was over 20 metres high and was old and heavy.
It was not disputed that the tree had fallen due to extensive decay in the root system extending into the base of the trunk, with high winds being a contributory factor or trigger.
Witley inspected the trees on its land every three years and considered this to be reasonable even though there were previous recommendations for inspections to be carried out every two years. The claimant alleged that the inspections should have been carried out more frequently.
At first, instance the judge stated that the type of tree, its location and the consequences if it were to fall were of specific relevance. He concluded that the tree was in a high risk position and if it failed could cause serious injury and/or damage to nearby property.
The judge referred to the Forestry Commission Practice Guide (2000) (“the FC Guide”) in respect of a landowner’s duty regarding trees. Of consideration, is whether the tree was within falling distance of an area where there were people or high value property, whether there was a risk of serious injury and/or damage and whether this risk was reasonably foreseeable.
It was held that the lime tree, being in an extremely high risk position, should have been inspected at least every two years and ideally every 18 months when trees were in and out of leaf. Witley treated all of its trees with the same care but the judge found that there needed to be a nuanced approach taking account of the size, age, type and location of each tree.
It was concluded that if Witley had inspected the tree more frequently (every 2 years or 18 months), the decay would have been discovered well in advance of the accident and the tree would have been felled or otherwise made safe. As a result, Witley was found liable for the claimant’s accident.
Witley appealed the decision in respect of the judge’s finding of fact and evaluation of the evidence. The Court of Appeal concluded that he had been entitled to reach his findings on the evidence and to rely on the FC Guide. As a result, the appeal was unsuccessful.
The Court of Appeal took the opportunity to reiterate the relevant legal principles in respect of a landowner’s duty in respect of trees. In these cases, there is a duty to actas a reasonable and prudent landowner and to act where there is an apparent danger. Although this should not amount to an unreasonable burden or force the landowner to act as the insurer of nature.
Also, there is a duty on a landowner to carry out inspections on a regular basis and in certain circumstances (including where there is some form of trigger), to arrange for fuller inspections to be undertaken by an arboriculturalist. In addition, the resources available to the householder may have relevance as to the way that this duty is discharged.
As a result of this judgment, councils and property owners with responsibility for a substantial number of trees, should fully re-examine their tree inspection regimes (in particular for roadside trees) taking into account the size, type and location of each and every tree and the risk to both people and property in the event of a failure. Any regime that simply involves treating tree stock as a whole, essentially a “one size fits all” inspection policy with no regard to specific risk is likely to be considered insufficient.
Landowners should review the FC guide and consider whether their policies and procedures are consistent with it – at the very least in relation to the type of tree that we are concerned with here.
In respect of the adequacy of an inspection regime, the fact that a tree appears healthy is largely irrelevant as greater consideration will be given to whether it is in a high risk location. Also, in cases of this nature, the courts will consider whether the risk of injury and/or damage was foreseeable, the likelihood of it occurring, the severity of the injury and/or damage that could result and what reasonably could have been done to minimise the risk.
Co-authored by casualty partner Simon Jones and commercial litigation associate Susan Rands.
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