News Category 3
Case Report: B v X - Helen Reynolds, Spencers Solicitors
07/09/22. Case Name: B v X
Court Name: Nottingham County Court
Accident Date: 04/03/2017
Settlement Date: 11/02/2022
Total gross settlement: £110,000.00
Background and Injury
Instructions were received to act on behalf of the Claimant in connection with a claim for damages arising from an injury sustained whilst playing "zorb" or "bubble" football at an event organised and provided by the Defendant on 04 March 2017.
The Claimant was aged 26 at the time of the incident. The Claimant was provided with an inflatable bubble or "zorb" by the coach in charge of the event on the day in question; the Claimant felt that the ball was too small with his head at the top of the ball and complained to the coach. Despite these complaints no alternative ball was provided. The coach thereafter instigated a game of "bulldog" where players were instructed to run directly at one another; the Claimant ran at another participant as instructed wherein his head collided with his opponent's shoulder with significant force.
The Claimant was aware of severe and immediate pain in his neck and was unable to continue with the activity. On presentation at A&E the next day it was discovered that he had sustained two fractures to his neck as a result of the incident.
The Claimant suffered severe neck pain with symptoms of pins and needles, numbness, cramp and pain and loss of balance. The pain radiated into his arm.
The Claimant underwent an operation to stabilise the fracture initially and subsequently received, physiotherapy, chiropractic and osteopathic treatments on a long-term basis. He continues to suffer with occasional, but severe debilitation, flare ups and takes pain relief.
Subsequent investigations revealed two sites of deterioration and degenerative changes just above the operative site, accounting for the ongoing symptoms. These degenerative changes were considered to be a result of the injury and surgery rather than natural degenerative changes. As these changes continue to develop, the Claimant's symptoms are expected to worsen and is likely to develop nerve impingement. He will require surgery within the next 5-10 years and continue to suffer flare ups of the neck pain. In addition, he has a 20-30% chance of ongoing arm pain.
The Claimant worked as a Ground worker, involving manual labour. He required 3 months off work initially, thereafter, returning on a protracted period of time on lighter duties. He returned to full time duties in 2020, however, ongoing flare ups and pain caused him to take days off work and avoid some heavier jobs. His ongoing symptoms will restrict the Claimant's capacity and abilities at work. When he does suffer flare ups, he will need time off work to recover and recuperate and he is at a disadvantage on the open labour market.
Prior to the incident, the Claimant enjoyed going to the gym, boxing and weightlifting. He was unable to do these activities after the incident.
The Claimant suffered with dreams and flashbacks of the incident. The injury left the Claimant feeling very worried about his neck. He was anxious about going out and suffered panic attacks. He had trouble sleeping and lost interest in a lot of things.
The Claimant was diagnosed with PTSD and a Major Depressive Episode. He received a course of CBT treatment and residual remaining symptoms were consistent with an Adjustment Disorder with a prognosis for further improvement over time.
Medical evidence was obtained from a Consultant Spinal Surgeon and a Clinical Psychologist.
Liability
The Defendant denied liability for the incident, stating that they were not vicariously liable for the actions of the coach and that the bubble was appropriate and safe for the Claimant; the Defendant further argued the incident was unforeseeable.
Th Claimant contended that the Defendant was indeed vicariously liable for the actions of the coach, as their staff or agent. Further, the Claimant maintained that the bubble ball provided was not a suitable size and relied on the manufacturer's guidance.
In light of the Defendant's denial of liability, proceedings were commenced and a Defence was filed.
The Defendant maintained their denial of liability but settlement was reached in discussions just 2 days before Trial.
Quantum
The matter was settled in the sum of £110,000.00.
The Claimant was aged 31 at the time of settlement.
Although settlement was agreed on a global basis, the Claimant's Solicitors provide the following breakdown; £40,000.00 General Damages £9,000 Past Losses (including treatment, loss of earnings, care and assistance, travel and medication) £10,000 Smith & Manchester Award and Loss of enjoyment (holiday and other physical activities)
£50,000 Future losses (treatment, care and assistance, travel, loss of earnings, medication)
£1,000 interest
TOTAL: £110,000.00
Solicitors for the Claimant: Helen Reynolds; Spencers Solicitors
Counsel for the Claimant: Shilpa Shah, Ropewalk Chambers
Solicitors for the Defendant: DAC Beachcroft
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Section 57 & Substantial Injustice - Nicholas Dobbs, Temple Garden Chambers
14/07/22. In Woodger v Hallas,[1] the Defendant appealed against the trial judge’s failure to dismiss the claim in its entirety following a finding that the Claimant had been fundamentally dishonest within the meaning of s 57(1) of the Criminal Justice and Courts Act 2015. The Defendant argued that there was no proper basis for a finding of substantial injustice, and the trial judge did not balance the extent of the Claimant’s dishonesty against the suggested injustice to him if the claim were dismissed in its entirety.
The Claimant had been the subject of surveillance and on a number of occasions was seen working at a local garage moving relatively freely, at a time when he was complaining of substantial disability and inability to earn. It further became apparent that he had done a substantial amount of paid work when he said he was not earning. The trial judge had been left “with the distinct impression that an attempt has been made to pull the wool over my eyes” in respect of some of the claimed loss of earnings.
After calculating the various heads of damages, the judge turned to the question of fundamental dishonesty. He found that the Claimant had exaggerated his symptoms on presentation to the medical experts. While he was not fabricating his hip symptoms, he had presented them as being more debilitating than they were. He also found that the Claimant had concealed his income from working. He had not concealed that he was doing some work, just that he was being paid for it. He had been dishonest about his earning and earning capacity.
The trial judge acknowledged that there were elements of the claim which remained uncontaminated by his findings on dishonesty. The injuries themselves were serious and had a continuing effect. There was also an element of the claim on behalf of innocent parties who gave their time, care and generosity in looking after the Claimant. Whilst the trial judge recognised that there was a ‘penal element’ to Section 57, he found it would be unjust to dismiss the whole claim. However, on appeal, it was held that the claim should have been dismissed in its entirety:
[43] The starting point is that s 57 only comes into play where the court finds that a claimant is genuinely entitled to some damages (s 57(1)(a)). Hence, in every case where the court goes on to find fundamental dishonesty ex hypothesi the claimant will stand to lose their genuine damages. But Parliament has provided in express terms that that should be so, subject to the question of substantial injustice. I quoted the Hansard material in Sinfield, [61], which makes that clear.
[44] I thus reiterate what I said in Sinfield, [65], which I quoted earlier and which was endorsed by HHJ Sephton QC in Iddon, [98], namely that substantial injustice must mean something more than the claimant losing their genuine damages.
[45] In light of this, it seems to me that the judge’s reasoning, in particular in [60], cannot stand. The two expressed reasons for finding substantial injustice were that part of the claim was genuine; and that others had provided past care. Neither reason is sufficient. The first reason is in conflict with Sinfield and Iddon and the plain purpose of s 57. The second reason is difficult to reconcile with s 57(2) which makes clear it must be the claimant – and not anyone else – who would suffer substantial injustice.
…
[48] Taking the same approach to this appeal, even on the assumption that there was some injustice to this Claimant (which I have found there was not), the same conclusion follows. The sustained nature of his dishonesty; the length of time for which it was sustained; and his involvement of others all make his dishonesty so serious that it would have outweighed any injustice to him.
[49] Counsel on this appeal were unable to refer me to any case which has defined the meaning of ‘substantial injustice’. I was not wholly surprised by that. To paraphrase US Supreme Court Justice Potter Stewart in Jacobellis v Ohio 378 US 184, 197 (1964), county court judges will generally, ‘know it when they see it’. But in this case, for the reasons I have given, I have concluded that the judge was wrong.
[50] In my judgment the judge should have dismissed the entire claim and awarded the Defendant its costs of the action (subject to s 57(4) and (5), which I will discuss in a moment).
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Hill v Ministry of Justice [2022] EWHC 370 (QB) - Rochelle Powell, Temple Garden Chambers
17/06/22. The case concerned an appeal against the order of Recorder Bright QC dismissing a claim for personal injury suffered by Mr Hill (“the appellant”) in the course of his duties as a probationary prison officer. The appellant was instructed to escort two young offenders when one of the prisoners (“DB”) assaulted him, causing the appellant to sustain a spinal injury.
The recorder found that whilst DB was a “volatile, impulsive, manipulative and troubled young manwho could be violent and fell into the worst 25% of prisoners in terms of conduct”, he was not a very dangerous prisoner and it was not necessary to automatically deem him as high risk whenever he left his cell. Further, DB did not pose any specific, imminent or foreseeable risk to staff beyond that routinely faced by prison officers.
The appellant submitted that the recorder had erred by (i) having regard the actual circumstances of the assault in assessing whether some injury was foreseeable; (ii) applying an incorrect and unduly onerous test of immediacy of harm in assessing whether any injury to the appellant was...
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PI Practitioner: Ex Turpi Causa Oritur Actio - Nicholas Dobbs, Temple Garden Chambers
14/06/22. In Lewis-Ranwell v G4S Health Services (UK) Ltd & Ors, the First, Third, and Fourth Defendants applied for an order striking out the claim against them on the grounds of illegality, ‘ex turpi causa non oritur actio’ (out of a dishonourable cause no action arises). The Claimant had killed three men in their homes whilst suffering delusional beliefs about them. He made numerous allegations of negligence against each of the Defendants, in essence arguing that they were negligent in their assessment or treatment of him before he went on to inflict violence on others. He sought damages for personal injury, loss of liberty, loss of reputation and loss of dignity, and indemnity in respect of any claim brought against him as a consequence of his violent actions.
At the Claimant’s trial in the Crown Court, the issue for the jury was whether he was guilty of manslaughter, by reason of diminished responsibility, or not guilty of murder by reason of insanity. The jury found him not guilty by reason of insanity on the basis that, although he was labouring under a defect of reason, he knew the nature and quality of his actions when he killed the three men but, did not know that what he was doing was unlawful. Following his acquittal on the grounds of insanity, the court, acting in accordance with the Criminal Procedure (Insanity) Act 1964, made a hospital order with restrictions and the Claimant was detained at Broadmoor hospital.
The applications for strike out were ultimately refused by Mr Justice Garnham, who reviewed relevant authorities (at [70] to [126]) before summarising the principles emerging from his review (at [127]). It was held (at [129]) that a verdict of not guilty by reason of insanity was, unequivocally, a verdict that a defendant was not...
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Former Regional Costs Judge confirms on appeal that County Court decision was wrong to refuse Litigation Friend expenses for an ATE Premium - Daniel Slade, Express Solicitors
30/05/22. On 21st April 2022, before HHJ Lethem, helpful guidance was provided to assist County Courts commonly falling into error in refusing expenses to Litigation Friends who seek reimbursement of their liability to pay success fees and ATE premiums.
LW, an 11-year old on 9th February 2019 was at an H&M store in Bromley and caught his right eye on a clothing pole-edge. His mother, RH instructed Express Solicitors to bring a claim for compensation. She did so pursuant to a CFA with a success fee of 100% and an ATE policy that provided indemnity for disbursement expenses and adverse legal costs.
Liability was admitted after the claim was brought in the Personal injury Claims Portal. Damages were subsequently agreed, subject to Court approval in the sum of £1,750. At the approval hearing RH sought reimbursement of her expenses from damages of; (i) the success fee in the sum of £437.50 (being 25% of prescribed damages, pursuant to LASPO), and (ii) the ATE premium in the sum of £336.00 (a further 19%), thus amounting to 44% of the damages in total. The District Judge at first instance allowed expenses of 25% of damages (the success fee), but refused the ATE premium. The District Judge found that premium was unnecessary because there was no liability risk and the cover protecting from Part 36 liabilities was very unlikely to be used, thus limiting the amount from damages to 25%.
HHJ Lethem found that the District Judge was wrong. He said that “the Judge started from the premise that the expense was unreasonable, rather than that it was reasonable” and he should have done the latter on correct interpretation of the law.
HHJ Lethem said:
(i) It was appropriate for Litigation Friends to be joined to as a party for appeals in such instances, so they can make submissions,
(ii) That the logic in Rogers should be followed in that the insurance market depends on insuring the less risky cases, to pay for the more risky ones,
(iii) That Courts should not arbiter the premium sum, being a matter of insurance underwriting and
(iv) ATE premium figures were not possible to challenge on a solicitor-own client basis (following the decision in the case of Herbert v H H Law Ltd [2019].)
The effect of this decision re-affirms that there is no artificial threshold to overcome in seeking a direction that expenses may be more than 25%, so long as less than 50% of damages.
Mr Slade, Senior Partner of Express Solicitors said; “we have found that Courts up and down the country have adopted an inconsistent approach to litigation expenses claims involving infants. This decision will serve as useful guidance to those Courts- namely, (i) starting with the presumption the expense is reasonable, (ii) appreciating the need for even less risky cases to be insured and (iii) that there is no test that Litigation Friends need to satisfy in seeking a direction for reimbursement of expenses where they are more than 25%, but not more than 50% of damages”.
Image ©iStockphoto.com/Karl-Hendrik Tittel
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