News Category 3
Hetherington v The Trustees Thornberry Animal Sanctuary - Andrea Ribchester-Hodgson & Sarah Wright, Spencers Solicitors
20/02/17. Rotherham County Court. Case number: A71YP448. Accident date: 14 December 2013. Settlement date: 27 January 2016. Gross settlement: £25,000.00.
Background
On 14 December 2013, H attended a jumble sale that was being held at the Defendant’s animal sanctuary. He was a regular visitor and attended the jumble sale every week, but on the day of the accident was not familiar with most of the staff helping out.
H was in the outside yard holding a carrier bag in his right hand with a tripod over his left shoulder. As H walked along he passed one of the Animal Sanctuary volunteers who had a German Shepherd dog on a lead. He said ‘hello’ to the volunteer but did not stop, acknowledge or approach the dog. Suddenly the dog lunged up from a sitting position and attacked H, biting his left forearm.
H had not put his arm out to the dog or made any sudden movements before the attack, he was very frightened but managed to get the dog off and free his arm. H was in shock and a lot of pain and was bleeding very badly.
The dog, now known to be called Tyson, was not muzzled and the volunteer holding his lead was unable to cope with his sudden attack on H.
H assumed the Defendant’s staff knew of the dog’s character and were happy for it to be amongst the public attending the jumble sale. H had a German Shepherd dog of his own and was used to being around dogs.
H was later told that Tyson was a resident dog that lived at the sanctuary rather than being a rescue dog.
H suffered deep lacerations on his distal left forearm. The branch of the superficial radial nerve was badly damaged and divided and was considered un-repairable. H continued to have numbness and pain over part of his left hand and distal forearm and a loss of sensation in his thumb, and considerable scarring from the attack and subsequent surgery. H additionally suffered psychological sequelae...
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Navigating the Minefield: Claims in the Employment Tribunal, County Court and Abuse of Process - Liam Ryan, Ely Place Chambers
19/02/17. When dealing with Stress at Work cases one of the first issues that needs to be considered is in which forum (County or High Court as opposed to the Employment Tribunal) should a Claimant bring their claim? In cases where a Claimant has suffered psychiatric injury, issues that can arise with such an injury, such as an inability to engage with legal advisors, can naturally direct a Claimant to pursuing a claim for personal injury in the County or High Court as opposed to seeking remedies in the Employment Tribunal due to limitation issues.
However, what happens when an Employment Tribunal claim comes to an end but the Claimant seeks to bring County or High Court proceedings? A Claimant who may well have proceeded initially as a litigant in person in the Employment Tribunal can find themselves being precluded from being able to bring the later action due to it being classed as an abuse of process. Whilst most Confidentiality Agreements entered into upon the settlement of Employment Tribunal claims include clauses that limit future actions, but exclude future personal injury claims, it should always be remembered that an award for injury to feelings can be construed as falling into the class of damages for personal injury (Sheriff v Klyne Tugs (Lowestoft) Ltd [1999] I.C.R. 1170) creating a situation whereby the same claim is effectively brought for a second time, just by a different mechanism (Lennon v Birmingham City Council [2001] EWCA Civ 435). This can be especially hazardous considering part 44.15 (a) CPR which allows a Defendant to side-step the QOCS protection provided by part 44.14 CPR and recover its costs directly from a Claimant where a claim is struck out as being an abuse of process.
The recent decision of Manda v USB AG (Central London County Court), 16th June 2016 provides guidance as to the issues such a scenario creates, and the application of the principles and analysis of “res judicata” as set out by Lord Sumption in Virgin Atlantic Airways Ltd v Premium Aircraft Interiors UK Ltd [2013] UKSC 46, [2014] A.C. 160.
Manda v USB AG (Central London County Court), 16th June 2016
In this matter, Mr Manda started working for the Defendant in August 2006 as a Quantitative Risk Analyst. In late 2007 he joined a team led by a Mr Cesari. Mr Manda alleged that from then onwards he was the subject of inappropriate treatment by employees of the Defendant. He raised a grievance about this in July 2010 which was rejected in September 2010, and on the 1st October 2010 he went on sick leave. He remained absent for over 8 months and returned to work in June 2011 but 2 days later he was absent due to illness again. In December 2011, he raised a second grievance which was also rejected and by January 2013 he had exhausted the internal appeal procedure relating to it. Around this time there were discussions about his return to work but he resigned on the 10th April 2013 and almost immediately issued unfair dismissal and discrimination proceedings in the Employment Tribunal...
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Emergency Care and Material Contribution in Dr Sido John v Central Manchester and Manchester Children’s University Hospitals NHS Foundation Trust - Katherine Galza, Kingsley
17/02/17. This case began with Dr John sustaining a serious brain injury having fallen down the stairs to his flat. He remained in an unconscious state for some time before he was reached by paramedics, and when arriving at A&E he presented with a low GCS reading (eye opening, verbal response and motor response). A CT scan, performed seven hours later, revealed that there was a blood clot in his brain. As he was being prepared for transportation to a specialised hospital for brain surgery, he experienced a seizure and his ambulance was cancelled, ordered again one hour later, and then was itself delayed for a further hour. Despite the surgeons’ best efforts in performing a left fronto-parietal craniotomy and the subsequent follow up investigations, care, and surgeries, Dr John was left with a severe form of brain damage.
Dr John’s claim is interesting for a number of reasons. It was clear that he had already injured himself pretty badly in the first place and that the trust, having left Dr John effectively untreated for seven hours, had breached its duty of care towards him. The question was then, to what extent did this delay cause Dr John to suffer the severity of brain damage he ultimately sustained? The particular factual issue to be determined in Dr John’s case was whether he was presenting with intra-cranial pressure (‘ICP’) upon his arrival at A&E. If left untreated, ICP can severely exacerbate brain trauma. The existence of Dr John’s ICP was proven in two ways. First, as one expert argued, although ICP did not appear on the CT scan, the approach should have been “treat the man not the scan”, as Dr John had displayed all the physical signs of ICP (eg. dysphasia). Second, the presence of ICP during the operation, as noted by one of the surgeons, provided conclusive evidence that any delay in Dr John’s treatment would...
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Wilkinson lives on in Crawley! - Ian Pennock, Park Lane Plowden Chambers
16/02/17. The case of Wilkinson-v-City of York Council [2011] EWCA Civ 207 has rightly caused highway authorities difficulties in highway cases because;
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It not only made a lack of resources irrelevant in considering a highway authority’s section 58 defence. But also;
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Endorsed the defendant highway authorities very own ‘National Code of Practice’ as a benchmark in considering whether or not they have exercised ‘reasonable care’ for the purposes of section 58 and by which they can be ‘hoisted by their own petard.’ As well as;
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Re-inforcing the point that the correct interpretation of the interplay between sections 41 and 58 of the Highways Act 1980 is that the highway authority has either exercised ‘reasonable care’ (within the meaning of section 58) or not and it is not a defence to say that lack of ‘reasonable care’ did not cause or contribute to the Claimant’s accident.
Highway authorities continue to try and hide their ‘lack of resources’ as a reason for failing to exercise reasonable care (for the purposes of section 58) in increasingly imaginative ways (see, for example, the proposed new National Code of Practice) and erroneously attempt to argue that the case of TR v Devon [2013] EWCA Civ 418 means the utility of the National Code of Practice, in the courts consideration of their section 58 defence, is greatly diminished. They either do not understand the third point (or pretend not to understand it.)
The recent case of Crawley-v-Barnsley Metropolitan Borough Council [2017] EWCA Civ 36, was handed down on 2nd February 2017. Other than the fact that it was not...
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Summary of Recent Cases, February 2017
15/02/17. 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
Wooldridge v George QBD (Judge Walden-Smith) 23rd January 2017
The claimant, who had been drinking, was struck whilst crossing the road between two pubs. The defendant was driving at 20mph, had not been drinking, and was not distracted. Notwithstanding this, she had failed to see the claimant. In all the circumstances, had she been...
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