PIBULJ
How to Verify Details of What Claimants Tell Us - Dr Hugh Koch and Dr Caroline Formby
Review of Article: Exploiting liars’ verbal strategies by examining the verifiability of details – Nahari G, Vrij A and Fisher R P – Legal and Criminological Psychology (2014) 19, 227 – 239
Lawyers and experts alike have the challenging task of obtaining and reviewing details of what claimants allege has occurred and how this has affected them, physically, psychologically, socially and occupationally. A small number of claimants are unfortunately ‘expedient with the truth’.
Nahari et al (2014) examined the hypothesis that liars will report their activities ‘strategically’ and, if possible, avoid mentioning details that can be subsequently verified.
They found that in an experimental situation, liars, compared with truth tellers, included fewer details that could be verified. Truth tellers included more perceptual, spatial and temporal details that could be verified in their statements than liars. This enabled the truth tellers to be more correctly classified, both in terms of their verifiable content and also higher ratio of verifiable to unverifiable details.
It is concluded that it is difficult for liars to generate details when lying, even if they could not be verified anyway.
This is consistent with other research in this area of lie detection and an approach called ‘strategic use of evidence (SUE)’ (Clemens et al 2010).
The applicability of this approach to medico-legal interviewing is worth consideration and will be the subject of further reports in this journal.
Dr Koch regularly holds clinics in London, Bristol,
Birmingham, Cardiff and Cheltenham.
Dr Caroline Formby regularly holds clinics
in West Bromwich and Solihull.
More information can be obtained via www.hughkochassociates.co.uk.
Image ©iStockphoto.com/bedo
Limitation: Did Curiosity Kill the Cat? - Luke Andrew Menary, Barrister, Liverpool Civil Law
03/10/10. Considering the impact of Collins v The Secretary of State for Business Innovation and Skills [2014]1
While working at London Docks between 1947 and 1967, the claimant assisted in unloading cargoes of asbestos. In early 2002 he became unwell, and shortly thereafter was diagnosed as suffering from inoperable lung cancer. He consulted with his doctor on numerous further occasions, happily made a good recovery, and was discharged fully in 2008.
An advertisement in the Daily Mail, relating to various industrial diseases, prompted the claimant to instruct a solicitor in 2009. His claim was issued in the High Court in 2012.
The Court of Appeal, upholding the decision of the High Court, found that whilst the claimant did not have actual knowledge of the possible link between the lung cancer and his exposure to asbestos, he should have asked his doctor as to the cause of his cancer by around mid-2003. Had he asked, it would be inconceivable that his doctor would not have mentioned asbestos exposure as a possible cause. The claimant was therefore deemed to have constructive knowledge of the link by mid-2003, which meant the three-year limitation period expired in mid-2006. His claim was therefore time-barred, and the Court refused to extend time under section 33 of the Limitation Act 1980.
Discussion
The limitation period for personal injury claims is three years from either the date on which the cause of action accrued, or the date of knowledge (if later) of the person injured2 . Amongst other things, the claimant must have knowledge of the fact his injury was attributable to the defendant’s act or omission. In deciding whether the claimant knew, the court applies an objective test and will credit him with any information that he might reasonably have been expected to obtain with the help of expert advice3 . This knowledge is referred to as ‘constructive knowledge’.
Collins is the latest in a line of cases which consider the issue of constructive knowledge where the claimant consulted with his General Practitioner but failed to ask what might possibly have caused his ‘disease’.
Back in 2004, the House of Lords considered the case of Adams v Bracknell Forest BC [2004]4 , which concerned a claim brought against the Council for failing to address the claimant’s dyslexia. Lord Hoffmann espoused the position on constructive knowledge as he saw it, stating:
“…there is no reason why the normal expectation that a person suffering from a significant injury will be curious about its origins should not also apply to dyslexics. In the absence of such an expectation, there is no reason why the limitation period should not be prevented from running for an indefinite period until some contrary impulse leads to the discovery which brings it to an end.”
Lord Justice Dyson, delivering his speech in Whiston v London Strategic Health Authority [2010]5 , doffed his judicial cap to Lord Hoffman’s approach when he stated:
“.…in deciding whether in all the circumstances of the case, the claimant should reasonably have made appropriate inquiries, the court should bear in mind that the House of Lords has “tightened up” the requirements of constructive knowledge… the decision in the Adams case requires the court to expect a heightened degree of curiosity of the reasonable claimant…”
Dame Janet Smith reiterated this ‘tightened up’ interpretation of constructive knowledge in Johnson v Ministry of Defence [2012]6 . At paragraph 28 she concluded that a reasonable man in the 21st century would be curious about the onset of deafness at the relatively early age of 61, and would wish to find out what was causing it. She further found that if the GP had been consulted as to the cause of the deafness, he would have asked about the claimant’s employment history and the possibility of noise deafness would have come to light, and therefore the claimant was deemed to have constructive knowledge from the date on which he ought to have taken expert advice.
As can be seen, the decision in Collins has not radically altered the law relating to constructive knowledge; it has merely affirmed the court’s expectation that claimants should be curious as to the cause of their symptoms. It is a reminder of the difficult task which claimants face when bringing claims years after suffering hearing loss or a disease.
Of course in relation to noise-induced hearing loss claims, many claimants will have visited their doctor in the past with concerns that their hearing is failing. Similarly, in mesothelioma and asbestosis claims they will have attended many appointments at hospitals and doctors’ surgeries. It will be a rarity where this is not the case. Claimants are therefore likely be fixed with constructive knowledge, and the three-year limitation period will run, from the date of the first consultation at which they raised the issue (or shortly thereafter to account for ‘thinking time’).
This was certainly the approach taken by the Court of Appeal in Johnson. The claimant in that case realised he had a hearing problem in 2001, and was aware that exposure to noise could cause hearing loss. However, he only consulted a doctor in 2006, and only asked whether he had wax in his ears, to which the doctor responded that he did not, and attributed his hearing difficulties to his age (60’s). The Court of Appeal held that the claimant should have asked his GP the more open question of ‘what the cause might be’ in 2002, rather than specifically about wax, as this would have prompted the doctor to reveal that it was possibly work-related.
In Collins, the Court of Appeal similarly held that the correct question to ask the GP was about ‘causes or possible causes’.
Following this line of authority, courts expect claimants to have actively questioned their doctors about the cause(s) of their symptoms. Presenting at a surgery with a complaint, but failing to ask the open question ‘what might the cause be?’ is not good enough.
The importance of determining the date of a claimant’s constructive knowledge cannot be overstated. Depending upon which date it is fixed, it can remove limitation as an issue altogether, or it can count in a claimant’s favour when a court is considering the application of section 33 of the Limitation Act 1980. Courts are to explicitly have regard to the length of, and reasons for, the delay7 , and the extent to which the claimant acted promptly and reasonably once he knew he might have a claim for damages8 . Lord Justice Fulford recently reiterated that the ‘delay’ referred to in section 33 includes not only the delay from the end of the limitation period, but also the delay from the claimant’s knowledge (actual or constructive)9 .
Claimants and their solicitors will have to continue to overcome the significant hurdles that the Limitation Act 1980 presents if they are to succeed in bringing claims with a latent/historical onset, and there is no sign the ‘tightened up’ stance is going to soften any time soon.
When taking instructions from new clients, solicitors must be sure to thoroughly investigate issues of date of knowledge, and do so promptly. There is a very real risk that by miscalculating the expiry of the limitation period and consequently delaying issuing proceedings, solicitors open themselves up to the possibility of professional negligence claims.
As for curiosity killing the cat, it would seem the opposite could not be more true.
Luke Andrew Menary
Barrister
Liverpool Civil Law
1[2014] EWCA Civ 717.
2 Section 11(4) Limitation Act 1980.
3 Section 14(3) Limitation Act 1980.
4[2004] UKHL 29, at 51.
5[2010] EWCA Civ 195, at 59.
6[2012] EWCA Civ 1505.
7 Section 33(3)(a).
8 Section 33(3)(e).
9 Malone v Relyon Heating Engineering Limited [2014] EWCA Civ 904, at 42.
Image cc flickr.com/photos/aigle_dore/6672148713/
Loss of Services Claim for “Housewife” Is Not a Nominal Loss - Gordon Exall, Zenith Chambers
01/10/14. I looked at the case of Knauer -v- Ministry of Defence [2014] EWHC 2553 (QB) in an earlier article. However one significant aspect of the case justifies close examination. The judge put a clear and definite value on the loss to a widower caused by the death of his wife who were in a “traditional” relationship where she did all the housework. This case belies the contention that loss of services claims are “nominal”. They have a substantial value and careful enquiries have to be made.
THE FACTS
The couple were in, what the judge described, as a “traditional” relationship whereby Mrs Knauer did the majority of the housework. The judge carried out a careful valuation of the services provided and concluded that they had a substantial financial value.
The multiplicand
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The claimant’s case as put in the Schedule of Loss and in the report of Ms Kirby is that Mrs Knauer used to spend 20 hours per week on household tasks excluding gardening and decorating. Mr Knauer’s oral evidence, which I accept, was that his late wife was extremely houseproud and would spend three hours on these tasks on a typical weekday and more than that on Saturdays and Sundays. It may be that the figure of 20 hours is if anything an underestimate of the time she spent. I do not think it would be right to allow for more than the figure set out in the Schedule, but I do not accept the submission (as a fallback from the argument that nothing should be allowed at all) that 20 hours was an overestimate or that Mr Knauer could and should make do with less.
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Mr Steinberg submits that the claimant is entitled to the cost of engaging a resident housekeeper: there is a quotation from an established agency in the documents at £25,168 per year (£484 per week). He argues that this is the best way of providing the constant attention to which Mr Knauer had become accustomed.
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As to hourly rates for services such as cooking, cleaning and laundry, Mr Pawson writes that he would “expect Mr Knauer to recruit a cleaner locally and allow £8 per hour”. He bases this on the rates set by the National Joint Council for Local Government Services. He accepted, however, in answer to a question from me, that it is well known that the demand for services of this kind is rapidly expanding due to the combination of increased longevity and decreased local authority funding for community care. The days of a ready supply of cleaners and cooks eager to accept work from individual householders at barely more than the minimum wage are passing.
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Ms Kirby recommends a resident housekeeper, but on hourly rates said that she strongly disagreed with Mr Pawson’s figure of £8 per hour. She said that nowadays one should expect to pay £16 per hour for a cook/cleaner provided through an agency and at least £12 per hour for someone recruited direct, if you could find one. She later accepted that ifthe going rate in an area were £10 for direct hiring, the agency rate, involving a commission of about 20%, would be £12.50; but I did not understand her to be retracting her earlier figures. (The Schedule to her report contains lower figures, but it also has a number of calculation errors, and I prefer her evidence before me in the witness box.)
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Mr Steinberg submits that if I am against him on provision of a resident housekeeper, I should allow the agency rate for cooks and cleaners, since that would ensure a continuity of services similar to that provided by Mrs Knauer, and save the Claimant from having to recruit direct.
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In my view it would not be reasonable to require the Defendant to pay for a resident housekeeper to replace what has been lost, if broadly similar services could be obtained by other means. But I accept Mr Steinberg’s alternative submission that such continuity of services could only be provided through an agency. I allow 20 hours per week at £16 per hour, which totals £16,640 per year.
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In addition a claim is made for a gardener at £1,750 per year; hedge trimming services at £350 per year, decorating at £750 per year; £624 for online shopping delivery charges and £150 for travel costs. I disallow the last two items: I am not satisfied that online delivery charges will have to be incurred, nor that the cost to the family of driving to the shops will be increased. I allow 75 hours per year (2.5 hours per week for 30 weeks) for gardening and 50 hours per year for decorating. As to hourly rates for these, Mr Pawson would allow £10 per hour: Ms Kirby said with some force that “you would never get someone for that”. Neither is in truth an expert on gardening or decorating, and it would have been disproportionate for such experts to have been called. I allow £12 per hour under these headings also. The figures are therefore £900 pa for gardening and £600 pa for decorating.
-
The period from Mrs Knauer’s death to the date of trial is 4.86 years. The total award for past services dependency is therefore £88,160.
Future services dependency
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The multiplier put forward by Mr Steinberg is 18.15. Mr Poole’s is slightly higher (18.6) although his suggested multiplicand was far lower. I accept Mr Steinberg’s figure.
-
The figure for future services dependency is therefore £329,241.
REJECTION OF THE ARGUMENT THAT THERE WAS NO CLAIM FOR PAST LOSSES WHERE ASSISTANCE HAD NOT, IN FACT, BEEN USED
Another feature of the judgment was that the judge roundly rejected an argument that, in relation to past loss, there should be no award because there had been no financial expenditure.
“Services dependency
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Mr Poole argued vigorously that there should be no award for either past or future services dependency. Five years have passed since Mrs Knauer’s death, he points out, yet Mr Knauer has not engaged a paid cook, cleaner, gardener or decorator, still less a resident housekeeper.
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This submission, with respect, is misconceived, on basic principles of the law of tort. If a claimant’s brand new Rolls-Royce is written off through the defendant’s negligence the damages must include its replacement value even if the claimant decides that he will change to a cheaper car or in future take public transport. The same principle applies to claims for loss of services under the Fatal Accidents Acts; and to claims for future loss, though not past loss, brought by a living claimant for her own personal injuries (Daly v General Steam Navigation Ltd [1981] 1 WLR 120). Of course in a sense the value of a lost spouse cannot be measured in money terms (see Proverbs, chapter 31, verses 10 ff.) but the law has to do the best it can.
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Mr Poole is right to say that in predicting the future one can take account of what is known to have happened already. As Aneurin Bevan said in a different context, “why look into the crystal ball, when you can read the book?” The classic example in tort law is a Fatal Accidents Act claim where the surviving spouse has himself died by the time of trial: there will be no award for his future dependency, though there may be for that of the deceased’s children. But this does not alter the basic rule that the claimant is entitled to the value of what he has lost. Indeed, Mr Poole’s submission is contradicted by high authority: in Hay v Hughes [1975] QB 790 at 809B Lord Edmund-Davies said that “the fact that a widower decided to manage himself after the death of his wife would not disentitle him to sue for and recover damages for the pecuniary loss he had sustained.”
CARE NEEDS TO BE TAKEN IN ASSESSING LOSS OF SERVICES CLAIMS
In many cases it is asserted (sometimes by claimants) that these awards are relatively nominal. However this is clearly not the case. The value of the services provided by a lost partner, or carer, has to be properly and fully quantified, sometimes by the use of expert evidence. There will be a loss of service claim in many fatal claims even where the dead person was not providing these services full time.
Gordon Exall
Zenith CHambers
Image ©iStockphoto.com/Ljupco
Mcgregor v. Genco (FC) Ltd: Time and Duty - Simon Morrow & Malcolm Keen, BLM
16/08/14. An employer’s duty at common law is to take reasonable care to protect its employees from a foreseeable risk of injury. In mesothelioma and other asbestos-related illness cases, foreseeability of the risk of injury has a particularly significant role. The recent High Court mesothelioma case McGregor v. Genco (FC) Ltd [2014] EWHC 1376 (QB) provides guidance on considering liability today for a breach of duty which occurred many years ago.
The decision
In McGregor, the claimant worked at a department store in Liverpool in the 1970s and early 1980s. For a period in 1976, demolition and installation work on escalators took place. Asbestos insulating board was used in the old and the new escalators. The claimant described her workplace as extremely dusty. She was diagnosed with mesothelioma in August 2012. The judge dismissed the claim. She accepted that the claimant was exposed to asbestos for a period of months in 1976, that exposure was light, but that this exposure to asbestos probably caused her mesothelioma. The judge concluded that the safety precautions in place (floor to ceiling enclosure) were adequate at the time, though not by today’s standards. She then considered whether there was a further duty to make enquiries as the works progressed. The judge found that there was nothing which ought to have alerted the defendant that the precautions were inadequate and required alteration. She concluded that there was no reason in 1976 for the defendant to have appreciated that the claimant was at risk of an asbestos related injury. The defendant’s failure to take what would now be regarded as appropriate precautions was not negligent.
Effect
McGregor turned on contemporary knowledge of the harmful effects of asbestos. Based on official guidance and standards in 1976, the claimant’s exposure to asbestos did not give rise to a foreseeable risk of injury. As noted above, the employer’s duty is to take reasonable care to protect its employees from a foreseeable risk of injury. As knowledge of a particular condition develops over time, knowledge of the risk of injury associated with particular work also develops. It is no defence for an employer to say it chose to remain ignorant of such developments in knowledge and the concomitant developments in what risks of injury became foreseeable. But equally, as McGregor shows, the employer ought not to be held to standards applicable now, but rather to those in place at the time of the alleged breach of duty.
Conclusion
In relation to the harmful effects of asbestos, a variety of guidance material shows the historic development of knowledge, such as Ministry of Labour and Department of Employment publications. Guidance documents assist the courts in establishing the date when a particular employer ought to have been aware of a foreseeable risk of injury in a particular case. Applying the material to a case requires the court to perform something of a comparative exercise – the knowledge (and thus the dangers) described in the guidance material must be weighed against the nature and extent of the claimant’s exposure. McGregor shows that the degree of exposure to asbestos and the date at which exposure occurred, set against knowledge and guidance at the time, are key in determining whether or not the defendant will be found in breach of duty. As the judge in McGregor observed, hindsight should be avoided.
Simon Morrow, partner, BLM
Malcolm Keen, solicitor, BLM
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