News Category 3
Loss of Earnings for a Child Badly Injured at Birth: Another Example From the High Court - Gordon Exall, Zenith Chambers
03/09/15. In HS -v-Lancashire Teaching Hospitals NHS Trust [2015] EWHC 1367 (QB) Mr Justice William Davis considered the claim for loss of earnings in a case where a claimant suffered a catastrophic head injury at birth.
THE CASE
The claimant suffered catastrophic brain injury due to negligence which led to meningitis. Liability was admitted. Certain heads of damage were agreed. One of the issues in dispute was future loss of earnings. The claimant would never be able to manage her own affairs. There was no possibility of her working...
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Damage to Chattels: No Room For Sentiment - Peter Harthan, 7 Harrington Street
04/09/15. The Claimant had been involved in quite a nasty crushing accident at work causing injury to the hand and fingers. Fortunately the main trauma was sustained on the ring finger and the Claimant’s wedding ring prevented what would otherwise have been a complete severance of the finger. The wedding ring was bent out of shape and had to be cut off the finger. It could not be repaired. Indeed, even if it could have been repaired, the Claimant cannot now wear a ring on his ring finger.
The normal rule is of course that the measure of loss in relation to an unrepairable chattel is its market value prior to the tortious damage and net of any salvage value. Where a chattel requires replacement the Claimant is entitled to the cost of replacement net of salvage. The price of a new ‘like for like’ gentleman’s wedding ring minus the crushed one’s value as scrap gold was relatively trivial in this case. I had a look through caselaw to see if anything could be done to compensate the Claimant for the emotional/sentimental value of never again being able to wear the ring exchanged on his wedding day. Ultimately little could be done (this isn’t an article about heroic victory against all odds!) - the Claimant was limited to damages for the monetary value of the ring and any emotional / sentimental loss was noted as a feature of the injury to be reflected in general damages. However I did learn the following in relation to damage to heirlooms, photographs, family pets and the like where value to Claimants is not properly reflected in their market value.
The starting point is the long established principle that the law does not recognise damages for anxiety, grief or depression falling short of a recognised psychiatric illness1. If the Claimant can meet the diagnostic criteria of a recognised psychiatric condition then they can recover damages for nervous shock caused by seeing their chattels destroyed, so long as psychiatric damage was foreseeable and not too remote2. Lord Bingham in Attia cited the example of where a scholar’s ‘life’s work and research was destroyed before his eyes because of the Defendant’s careless conduct’ (the case was decided before the digital age, presumably there would now be a significant finding of contrib for failing to have the work backed up). Attia also provoked controversy in the wake of the decision in Alcock v Chief Constable of South Yorkshire [1992] 1 A.C. 310. The Alcock decision set restrictions on claims by secondary victims on the basis of proximity. Following Attia the test for witnesses to property damage was one of foreseeability of psychiatric harm. After Alcock the law was in the questionable position of prioritising witnesses to the destruction of goods, albeit goods heavily invested with emotional attachment, above the claims of witnesses to the physical harm of human beings. The problem with Attia is that recovery for psychiatric illness is treated as parasitic on the duty not to negligently damage the property. But just because there is a duty not to cause physical damage to property, it does not follow that there has to be a duty in relation to other forms of loss such as psychiatric illness which are the foreseeable consequence of the damage. Damages for psychiatric harm can also be recovered by a Bailor for property destroyed in breach of bailment where psychiatric harm is reasonably foreseeable consequent on the breach3.
Further authorities in this area are to be found in the demise of much loved family pets in veterinary negligence cases. For a nation of supposed animal lovers English Law has little to offer those bereaved by the loss of the family pet in negligent circumstances. Unlike in America where the loss of ‘companion animals’ has resulted in significant compensatory awards, English Courts have not explicitly recognised such loss. Having said that, as Charles Foster notes in his article “Carelessness Killed the Cat”4, contract law recognises damages for emotional disappointment and upset in circumstances such as disastrous holidays5 or ruined wedding days. An ambitious Claimant might seek to extend the principle to breach of contract and/or negligence (usually) by vets leading to the loss of a pet.
So in summary, there remains little room for sentiment in the assessment of damages for damage to chattels. Only if witnessing the damage has caused nervous shock meeting the diagnostic criteria for a recognised psychiatric condition in circumstances where such harm was foreseeable might the Claimant succeed.
Peter Harthan
7 Harrington Street
1 McLoughlin v. O'Brian [1983] 1 A.C. 410
2 Attia v British Gas PLC [1988] Q.B. 304
3 Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37
4 PILJ 2009 No.74 (April) pages 15-17
5 Jackson v Horizon Holidays [1975] 3 All ER 92 is the leading authority, however for a more ‘entertaining’ read of a truly horrendous cruise experience read Milner v Carnival Plc (t/a Cunard) [2010] EWCA Civ 389
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Scrutiny of Medical Evidence & Physiotherapy Charges in Low-Value PI Cases - Thomas Crockett, 1 Chancery Lane
26/08/15. I recently acted for an insurer in a routine low value personal injury case (to which QOCS applied) which had an unusual twist. The claimant claimed damages for neck injuries sustained in a road traffic accident. He signed the Particulars of Claim which were vague as to the description of his injury, but which made reference to an appended medical report. The medical report was of the lamentably short “tick box” variety and concluded that the claimant had sustained a “soft tissue neck injury which resolved in around five months”. At the time of the examination by the GP expert around three months post-accident, the claimant complained of some ongoing symptoms.
Well, the Claimant’s social media persona begged to differ. The Defendant’s online sleuths obtained evidence that the Claimant actually undertook a half marathon a few days post-accident and an ‘Iron Man’ a few weeks after that. This was at a time when the medical report suggested that the Claimant’s symptoms were most acute (“moderately-severe” – whatever that means!).
The Claimant submitted a Notice to Discontinue.
His solicitors came off the record as acting for him.
The Defendant applied to have the Notice of Discontinuance set aside.
On the day of the listed hearing, the Defendant’s solicitors received a remarkably candid witness statement from the Claimant, who had...
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Two Lessons to be Learnt - Jennifer Haren, Weightmans LLP
24/08/15. So far in 2015 we have seen two decisions which are not only likely to leave a lasting mark on the profession but also a judiciary in no doubt expecting lessons to be learnt.
The first was Proctor v Raleys Solicitors [2015] EWCA Civ 400 where the Court of Appeal rejected submissions that financial pressures require solicitors to "commoditise" their advice. In upholding a finding of professional negligence against Raleys, for its conduct of Mr Proctor's miner's compensation claim, Tomlinson LJ warned against the over reliance on precedent letters and tick box questionnaires when seeking to discharge duties owed to clients to ensure that they fully appreciate the consequences of the instructions they provide.
Mr Proctor claimed that Raleys failed to adequately advise him that he could pursue a claim for loss of "services" - assistance with gardening, DIY etc - as a result of his personal injury claim for excessive exposure to vibration leading to the development of vibration white finger.
Raleys defended the claim arguing that they properly advised Mr Proctor - they sent three standard advisory letters and questionnaires to Mr Proctor. Mr Proctor did not however instruct the firm that he required assistance with services. The firm refused to accept that their approach resulted in Mr Proctor's Jack of instructions - this was despite the firm not having met with or spoken to him directly.
Sitting at Leeds County Court His Honour Judge Gosnell found that Raleys should have done more to ensure that Mr Proctor understood the nature of his instructions... "it was not too much to ask the solicitor to directly consult with the client to advise him in layman's terms what a services claim was and whether on the facts that applied to him he potentially qualified to claim".
Raleys appealed HHJ Gosnell's decision on the question of whether the firm was negligent in failing to conduct either a meeting or telephone conversation to satisfy themselves that Mr Proctor fully understood their advice.
In dismissing the appeal Tomlinson LJ observed that it was reasonably foreseeable that clients such as Mr Proctor might not understand long detailed letters and could misunderstand whether they had a right to claim. Tomlinson LJ formed the view that the claim "cried out for a short discussion with the client, preferably face to face, but if necessary over the telephone, in order to ensure that the client understood the circumstances in which a claim... could be made".
Whilst the profession will likely agree that it is not always commercial or indeed practical to advise clients face to face (particularly in the advent of the fixed fee/Pl portal regime) Tomlinson Lj's warning that solicitors should not feel "inhibited" from ensuring that clients have "understood advice given... by the consideration that so ensuring might generate a further fee payable by the client''ought not to be taken lightly. It would be interesting to see how a Claimant's solicitor would fare if arguing that the 200 odd mile round trip to meet with a client in a claim worth no more than say £1800 was reasonable and proportionate.
The dangers of the profession relying on precedent letters and questionnaires was again highlighted in the recent decision in Saunderson & Others v Sonae lndustria (UK) Ltd [2015] EWHC 2264 (QB). Here Mr Justice Jay, sitting in the Liverpool High Court, was pretty scathing of those Claimant firms involved and has referred two such firms to the SRA for alleged misconduct.
In Saunderson Mr Justice Jay heard 20 test cases of those involved in the Sonae Group Litigation. The Group Litigation involved 16,626 Claimants seeking compensation for personal injuries (mainly eye, skin irritations and breathing problems) they said they sustained following a large scale industrial fire at the Sonae plant in Kirkby, Merseyside in 2011.
Mr Justice Jay found in favour of Sonae and dismissed all 20 claims.
In his judgment, he found "serious weaknesses" in the Claimants' cases citing reasons such as delay and the "absence of any contemporaneous evidence" as to why the claims failed. He was also critical of the use of standard form questionnaires finding that they "asked a series of leading questions" which provided "inaccurate and exaggerated' responses ..."calling into question the objectivity and integrity of the whole process". As to the use of "pop-up shops and cold calling" he found that this method of attracting prospective clients did not engender "any degree of confidence".
In two of the 20 test cases, involving Claimant firms GT Law and Walter Barr, Mr Justice Jay found that documents served bore forged signatures. As a result he directed that a copy of his judgment be sent to the SRA. Mr Justice Jay was of the view that the forging of a signature on a statement of truth by a non-solicitor employee of GT Law left not only an "unpleasant miasma of concern and dubiety... it also has the potential to infect the integrity of [thefirm's] processes overall, and other claims."
These decisions serve as a salutary reminder of the importance of firms ensuring that they try to avoid a one size fits all approach to low value Pl claims. Whilst there is nothing wrong with the use of templates and questionnaires each claim does need to be reviewed and assessed on its individual merits with a strategy/approach devised which is bespoke to the individual Claimant's needs and requirements.
Is the profession likely to see an influx of undervalue settlement claims and increased attention from the SRA on the back of these decisions? Possibly. Of course undervalue settlement claims are not a new phenomenon. They have however become increasingly prevalent and will no doubt continue to do so as personal injury practitioners latch on to recent decisions such as these in their search for more lucrative sources of work viewing the handling of these claims as an easy transition from personal injury.
Jennifer Haren
Weightmans LLP
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Contribution, Limitation and the Athens Convention - Ian Miller, 1 Chancery Lane
19/08/15. In South West Strategic Health Authority v Bay Island Voyages [2015] EWCA Civ 708 the Court of Appeal considered the scope of the Athens Convention and the nature of the time-bar in Article 16. In coming to its decision, the Court also considered sections 5(1) and 5(2) of the Carriage by Air Act 1961.
In the main action, Dr Feest claims damages for personal injury arising out of an accident which occurred whilst she was a passenger on board The Celtic Pioneer in the Bristol Channel. Her original solicitors missed the two-year time limit for bringing claims under the Athens Convention against the carrier ('BIV'). She issued proceedings against her employer ('SWSHA') one day before the expiry of the three-year time limit under section 11 of the Limitation Act 1980. SWSHA brought a claim for contribution against BIV which was struck out by the district judge. His order was upheld on appeal.
The first issue for the Court of Appeal was whether claims for contribution are encompassed by Article 14 of the Convention which states “no action for damages for the …personal injury to a passenger… shall be brought against a carrier…otherwise than in accordance with this Convention.” On appeal, HHJ Havelock-Allan QC held that...
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![Appeal judge rules that credit hire company has no costs liability following a finding of fundamental dishonesty in personal injury case: RSA v. Fastrack Solutions Limited [2023] 4 WLUK 92 - David Bowden, Erimus Chambers](/content/images/resized/images/stories/carkeys_72_72.jpg)
