News Category 3
Occupiers Liability and Highways Claims Converge - Jack Harding, 1 Chancery Lane
03/12/16. In Edwards v London Borough of Sutton (2016) EWCA Civ 1005 McCombe LJ expressed the view that “not every accident (even if it has serious consequences) has to have been the fault of another; and an occupier is not an insurer against injuries sustained on his premises”. That case involved a catastrophic injury caused by the claimant falling from a bridge. No duty was owed because, inter alia, any risk posed by the premises was entirely obvious. Yet underlying the judgment is the clear theme that the standard of care to be imposed upon occupiers should not be set at an unreasonably high level. It is interesting, therefore, to note that in the case of Rochester Cathedral v Debell (2016) EWCA Civ 1094, handed down only a few months after Edwards, the Court of Appeal took a similar approach to very minor defects at the opposite end of the scale of seriousness. In Debell the Claimant tripped over a small lump of concrete protruding from the base of a traffic bollard on the Cathedral grounds. He sustained relatively modest physical injuries. The judge concluded that the state of the concrete gave rise to the 'foreseeable risk' of causing injury and that liability must therefore attach. The Court of Appeal held that the case law which had developed under section 41 of the Highways Act 1980 was equally applicable to Occupiers Liability tripping claims. Although the ultimate test was one of ‘reasonable foreseeability’, this had a specific meaning in tripping accidents of this nature and therefore became a test of ‘heightened foreseeability’ which required a ‘real source of danger’. It was not relevant to consider whether it would have been unduly burdensome on the occupier to remove the particular defect which had caused this accident, but instead the focus should be on whether it would be unreasonable to impose an obligation to identify and remove all defects of this nature across this and other premises. On the facts, the trial judge had failed to recognise this important distinction and had applied a bare test of foreseeability. He should have recognised that the lump of concrete posed no greater risk than that “which pedestrians inevitably face from normal blemishes”. Accordingly, the appeal was allowed.
As a point of principle, there is some comfort to be drawn from the judgment for Claimants. The Defendant had attempted to argue that the trial judge’s conclusion that the Claimant was nevertheless 20% contributorily negligent for failing to see and avoid the defect was inconsistent with the finding that the defect was a real source of danger. This submission was roundly rejected by Elias LJ, who noted that:
“…it fails to recognise that the duty of care is not only for the careful pedestrian but also the inattentive or careless one who may well not notice a hazard in the road. Every finding of contributory fault involves a recognition that the accident occurred because of some fault on both sides, a typical state of affairs in these cases. The fact that the claimant should have taken greater care to identify the risk and thereby avoid the accident is not remotely inconsistent with a finding that the Cathedral authorities ought to have taken reasonable care to eliminate the risk”.
Jack Harding
1 Chancery Lane
Image ©iStockphoto.com/markgoddard
PI Claims for Clients Who Receive Benefits - Philippa Barton, Hodge Jones & Allen
24/11/16.From time to time, personal injury practitioners find they need to pass on interim payments or damages to clients who are receiving benefits. In these cases it is important to consider the effect this will have on a client’s entitlement. If they receive means tested benefits or are likely to in the future, and/or receive social care paid for by social services, a failure to take account of this could mean an individual losing the right to those benefits and care.
For most means tested benefits the general rule is that the client must have less than £16,000 in capital to receive the benefit at all. If they hold more than £6,000 they would receive a reduced level of benefit. Any income they receive in addition to benefits is taken into account when calculating entitlement and usually reduces them.
Local authorities have a duty to provide accommodation and social care support for vulnerable people. For social care, the capital limit is £23,350 and if a claimant has over £14,250 they will have to pay some contribution...
Image ©iStockphoto.com/courtneyk
McShane is Such a Shame! - Paul Stanton
24/11/16. On 28th June 2016, DJ Peake gave an (unreported) decision in the case of McShane v Lincoln, which may have wide ranging consequences. A self-employed agent, who was not a solicitor, represented the Claimant at the MoJ Stage 3 hearing-arguing that he was an "exempt person" performing a reserved legal activity under the Legal Services Act 2007.
The District Judge had to determine
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Whether the Stage 3 hearing was "in chambers" –The Judge found that it was a contested hearing, which finally disposed of the claim, and was very similar to a disposal hearing, and was, therefore, not in Chambers
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Was the advocate "assisting in the conduct of litigation" – the judge found that exercising the rights of audience is not "assisting in the conduct of litigation".
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Was the advocate assisting under instructions given by, and under the supervision of, an authorised person – DJ Peake held that supervision requires close involvement, and the required "closeness" was not present in a solicitor/agency relationship such as this...
Image ©iStockphoto.com/liveostockimages
Quantification of Damages in High Value Cases: A Scottish Strategy - Charlotte Edgar, Brodies LLP
23/11/16. Jill Clark v Greater Glasgow Health Board [2016] CSOH 126 concerns a young woman who suffered a catastrophic brain injury at birth. She alleged there had been negligent mismanagement of her mother’s labour on the part of the doctors and midwives involved in her mother’s care. Decree of absolvitor was pronounced by Lord Stewart, however he prepared a note to assist parties on the quantification of damages, if the case had been successful.
Lord Stewart’s note is of assistance for a number of reasons, including explaining the advantages and disadvantages of an agency based care model as compared to a direct employment model, discussing the hourly rates of carers and that different care models may be appropriate for different stages in the pursuer’s life.
The pursuer quantified damages at £9.76m, whereas the defender’s valuation was £6.86m. Accommodation costs were separately agreed, but there were a number of outstanding issues: whether a PI trust should be set up; which model of care should be used to cost future care; what level of damages should be allowed for case management, occupational therapy, future transport costs and personal care items. Lord Stewart’s observations help both parties by setting out what sort of evidence should be led to assist the court in making a decision...
Image ©iStockphoto.com/nikkormat42
Editorial: Consultation on Soft Tissue Injuries in RTAs - Aidan Ellis, Temple Garden Chambers
22/11/16. Earlier this month, the Ministry of Justice announced a consultation process on its long awaited scheme to reduce the burden of whiplash cases. It includes a largely predictable package of measures including reducing or removing compensation for minor soft tissue injuries and increasing the small claims limit. The plan is clearly to eliminate or substantially reduce the incidence or value of “minor” personal injury claims. Apparently, insurers have pledged to pass the anticipated savings onto consumers and so we can all look forward to a £40 reduction in our car insurance premiums as a result. Looking beyond the headlines, readers may be interested in the detail of the proposals.
First, the difficult question – which I had thought might make the whole scheme unworkable – is the definition of a “minor” claim. The proposed elements involve a “primary” soft tissue injury, with perhaps a “minor psychological injury secondary” and the proposal is to consult on whether the line in the sand should be drawn at injuries which resolve in six months or nine months. The definition is limited to “an occupant of a motor vehicle”; those who sustain minor injuries in tripping accidents or in the course of employment are thus unaffected. It is not limited to neck / back injuries; banged knees and arms would also be covered. But some crumb of comfort is that the preferred cut-off point of six months is less draconian than it might have been; there appears to be no suggestion that injuries lasting more than nine months could be caught.
Second, the consultation suggests either removing compensation altogether for injuries which fall into the minor category or allowing fixed compensation of £400 (rising to £425 if there is an additional psychological injury). The minor injuries section in the current JC Guidelines suggest that the only injuries which would be awarded an equivalent amount on assessment today, would be those that resolve in less than 7 days. It is very striking that we are now talking about allowing that sum in respect of injuries lasting six months. The £25 increment for psychological injuries, in particular, is remarkable.
Third, a rigid tariff system is proposed for soft tissue injury claims where the injury lasts up to two years. The suggested tariff starts at £700 for injuries lasting 7 – 9 months (with psychological injury £740) and moves up in steps so that an injury lasting 19 – 24 months would attract £3,500 (£3,600 with additional psychological injury). Interestingly, the fixed awards for injuries towards the top of the tariff are not wholly unrecognisable from current awards; consistent with the intent to constrain low value cases, it is injuries lasting less than 15 months which bear the brunt of the proposed reform. Moreover, the view must have been taken that psychological injuries add very little to the level of pain, suffering and loss of amenity in these kind of cases – the additional amounts in cases with a psychological injury are minimal.
Fourth, perhaps the most disturbing measure is the proposed increase in the small claims limit. The options proposed are either to raise the limit on general damages to £5,000 in all personal injuries claims or all road traffic claims. The deliberate impact of increasing the small claims limit would be to remove lawyers from these cases: Finland and Norway are held up as examples of jurisdiction in which lawyers are not used for low value personal injury cases and any doubt about the government’s intention is removed by the consultation on better ways to support litigants in person on the small claims track. Glancing through the JC Guidelines, injuries potentially worth less than £5,000 include soft tissue injuries lasting two years, simple broken wrists resolving in one year, loss of part of a little finger, fracture of one finger, ankle or leg injuries lasting one year or superficial scarring. These are not easily dismissed as minor injuries. The suggestion that all can be dealt with (even employers’ liability disputes) without any legal advice is concerning.
Now that the illusion that these reforms would be forgotten as the government navigates the Brexit labyrinth has been shattered, we confront the reality. Over time, reform – including the introduction of fixed fees on the lower reaches of the multi-track – is probably inevitable. At heart, the argument now seems to one of detail: when exactly does an injury cease to be ‘minor’, so that it justifies instructing lawyers and receiving more than a restricted tariff in compensation?
Aidan Ellis
Temple Garden Chambers
Image ©iStockphoto.com/angelhell
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