Court Cases on Negligence, Duty of Care, and Causation in Personal Injury Law, Schemes and Mind Maps of Law

Download Court Cases on Negligence, Duty of Care, and Causation in Personal Injury Law and more Schemes and Mind Maps Law in PDF only on Docsity! 1 LEGAL UPDATE Adam Chippindall, Robert Sowersby & Sophie Holme, Guildhall Chambers PROCEDURE Carol Keefe (Widow and PR of the estate of THOMAS KEEFE, Decd) v The Isle of Man Steam Packet Company Ltd [2010] EWCA Civ 683 A deafness claim against an employer. The case is fact sensitive, and unremarkable except for one point. C had called lay witnesses as to the high levels of noise over lengthy periods, but there was no expert evidence on levels and duration before the court (the ship in question no longer being in service). D had failed, in breach of its statutory duty, to take measurements. The court at first instance had concluded that there was insufficient evidence to prove levels of noise at or in excess of 85dB(A) for 8 hours. The CA whilst not reversing the burden of proof reminded us that: “if it is a Defendant’s duty to measure noise levels in places where his employees work and he does not do so, it hardly lies in his mouth to assert that the noise levels were not, in fact, excessive. In such circumstances, the court should judge a Claimant's evidence benevolently and the Defendant’s evidence critically. If the Defendant fails to call witnesses at his disposal who could have evidence relevant to an issue in the case, that Defendant runs the risk of relevant adverse findings see British Railways Board the Herrington [1972] ADC 877, 930 G. Similarly a Defendant who has, in breach of duty, made it difficult or impossible for a Claimant to adduce relevant evidence must run the risk of adverse factual findings. To my mind this is just such a case.” Ministry of Defence v AB & Others [2010] EWCA Civ 1317 This was an appeal by the MoD in relation to the nuclear radiation claims arising from tests done in the pacific in the 1950s. It was “group litigation”. In these lead cases issues as to limitation were decided; further an application to strike out under Part 3(4) was determined. At first instance all of the claims were allowed to proceed, some on the basis that “knowledge” was acquired less than 3 years prior to issue, others under s.33. On the limitation issue the CA disagreed: it concluded that pursuant to the principle in Spargo v North Essex DHA [1997] PIQR P235 i.e. the possession of enough knowledge for it to be reasonable to set about investigation, the 5 lead cases permitted through under s.14 could not continue – each of those Claimants did have enough of such knowledge more than 3 years before they issued their proceedings; and in respect of the discretion under s.33, it concluded that although a fair trial was still possible, nonetheless, the case on causation was too weak. The Claimants would have to satisfy the “but for” test, and were not likely to persuade the court that an increased risk was sufficient causation. 2 Whiston v London Strategic Health Authority [2010] EWCA Civ 195 C suffered from cerebral palsy as a result of brain damage caused at the time of his birth in 1974. His mother, a nurse, had been aware since his birth that the delivery had potentially been handled negligently. However, his parents made a decision early on in his life not to pursue a claim. C was not informed of his parents‟ concerns over his delivery, but was aware that he had been delivered by forceps and that his cerebral palsy resulted from a lack of oxygen at birth. The C‟s development was slow, his fine motor skills were poor and he was epileptic. He did well academically and obtained a PhD from Cambridge. In early 2005, unfortunately, his condition deteriorated dramatically to the extent that he was unable to remain independent. At this point, C‟s mother spoke to him of her concerns about the care he received at his birth and proceedings were commenced in late 2006. It was alleged that the SHO attending the delivery had been negligent in attempting the delivery with the wrong type of forceps and in persisting in these attempts for 30 minutes when confronted with signs of fetal distress, in particular Type II (late) decelerations, indicative of fetal hypoxia. At first instance, C‟s date of knowledge was found to have been in 2005 when his mother first informed him of her concerns. D appealed. Three points of significance arise out of the Court of Appeal‟s decision: (i) Whilst the knowledge required for the purposes of s. 14(1)(b) is “knowledge of the essence of the act or omission to which the injury is attributable” and it is not necessary for the claimant to know all the details of the D‟s acts or omissions on which he relies as constituting negligence as per Dobbie v Medway Health Authority [1994] 1 WLR 1234, 1241C and Wilkinson v Ancliff (B.L.T.) Ltd [1986] 1 WLR 1352; C still needs knowledge of the essence of his allegations of negligence not simply knowledge of the causation of his injury. Here, C‟s knowledge that he had been delivered by forceps and his injury was caused by oxygen deprivation at birth was not sufficient to give him actual knowledge of the essence of the act for the purposes of s.14(1)(b). The court regarded the essence of C‟s case as the persistence for at least half an hour in attempting to deliver C, use of the “wrong” forceps and delay in seeking assistance from a more senior obstetrician. These three elements of C‟s case were not regarded as mere details of the case. They were the case. (ii) As regards the test for constructive knowledge, the court endorsed the submission that the ratio of Adams v Bracknell Forest Borough Council [2004] UKHL 29 requires an objective test. However, it rejected D‟s submission that Adams went further and required that where a person was aware that they had suffered an injury serious enough to be something about which they would consult a solicitor if they knew they had a claim, s.14(3) requires the court to assume they would be sufficiently curious about its cause to ask questions. Lord Justice Dyson said this did not accord with the wording of s.14(3) which refers to knowledge that a Claimant “might reasonably be expected to acquire”. What was reasonable depended upon all the circumstances 5 formulaic and unthinking way, could reduce their effectiveness. She acknowledged that where an independent contractor carried out a thorough and reasoned assessment, an employer‟s risk assessment might be compliant even if somewhat lacking in detail. The case bears reading for important information on the value of risk assessments. Everett & Anor v Comojo (UK) Ltd [2011] EWCA Civ 13 The Claimant was a visitor to a bar in a hotel owned and managed by the Defendant. He was stabbed by another guest over an alleged touching of the bottom of a waitress. The waitress had been told by a guest that her “assailant” would apologise to her before the end of the night. She was suspicious that something might happen and warned her manager (not the door-staff). E was stabbed by another guest. His claim failed at first instance, although the Judge concluded that D could owe C a duty of care in such circumstances per Caparo on the basis there was more than sufficient “proximity” between the bar owner and its guests, that injury was reasonably foreseeable, and “fair, just and reasonable”. In the CA it was held that the Judge was correct even though the assailant was a third party and referred to Home office v Dorset Yacht Co Ltd [1970] AC 1004 HL. No breach of any such duty was made out because the waitress had acted reasonably. Merthyr Tydfil County Borough Council v C [2010] EWHC 62 (QB) A 1st tier appeal from a County Court Judge who had refused the Defendant‟s application to strike out the claim. The issue was whether the Council owed the mother of children who were the subject of abuse by a neighbouring child a duty of care in respect of her psychiatric harm. The Council sought to argue, in vain, that the effect of the decision of the House of Lords in D v East Berkshire Community Health NHS Trust [2003] EWCA Civ 1151 was that because of the paramountcy of a council‟s duty to children within their region they could not owe a concurrent duty of care to that child‟s parents; and certainly in respect of “child care decisions”. In D v East Berkshire the parents were (falsely) alleged to have abused their own children. The learned Judge ruled that unless the duties were “irreconcilable” then a number of concurrent duties could exist. He pointed to a number of authorities where a duty to the parent had been found to exist (A v Essex County Council [2003] EWCA Civ 1848; Lambert v Cardiff Council [2007] EWHC 869; and W v Essex County Council [2001] 2 AC 592. Vaile v London Borough of Havering [2011] EWCA Civ 246 The Claimant was a teacher at the Defendant‟s school for pupils with learning difficulties. A child, X, assaulted the Claimant. She was stabbed in the hand with a pencil, hit on the ear, and grabbed around the neck. She suffered a detached retina and psychological injury and has not worked since. In fact, about 1 month earlier X had bitten the Claimant in class, which had been reported to the Headmaster and his Deputy. There was an issue as to whether X should have been classified as Autistic and therefore taught by a specialist TEACCH team. The Judge at first instance dismissed her claim on the ground that 6 he did not find that C was provided with an unsafe system of work. The CA disagreed: the fact that C did not know she was teaching someone with ASD was important, which, together with the fact that she had not received adequate training in TEACCH meant that her system of work was not safe. Furthermore, there had not been an adequate response in relation to the earlier assault. In relation to causation there is an impression of some benevolence on the part of CA: C could not show that any of the training or safer systems would specifically have prevented this assault, but the court concluded that whilst it was “difficult for [C] to show precisely what she or the school could have done to avoid the incident if she had been appropriately instructed in suitable techniques ....” nevertheless, the probability was that she would not have met with the injury if those procedures had been in place. Goad v (1) Peter Butcher & (2) W.I. Butcher & Sons [2011] EWCA Civ 158 The Claimant was a motorcyclist exceeding the speed limit. The Defendant was crossing his path turning his tractor and trailer into a minor road. The Defendant cut the corner (in breach of s.156 of the Highway Code). It also had the effect of reducing his visibility in the Claimant‟s direction by another 20 metres which might have been critical. By a majority, the CA thought that the cutting of the corner was not significant and that although D was required to have regard to the fact that on-coming motorists might exceed the speed limit, he was not negligent in turning where he did, with 110 metres of visibility. Jackson LJ gives a compelling dissenting Judgment. Wilkinson v City of York Council [2011] EWCA Civ 207 The Claimant was a cyclist who was dislodged from the saddle and suffered injury when she hit a pothole. This fast track trial reached the CA! The kernel of the appeal related to s.58 of the Highway Act 1980. The road was one which was given annual inspection. However, the national code (which has no rule of law) would have suggested a 3 month inspection for this particular highway. The evidence suggested that the Defendant was constrained by its lack of financial resources and manpower. The CA agreed that the test under s.58 is an objective one: was the care such as in all the circumstances was reasonably required to secure that the relevant part of the highway was not dangerous for traffic? This was an objective judgment based on the risk presented by the highway concerned. CRIMINAL INJURIES COMPENSATION SCHEME CICA v (1) CICA Appeals Panel (now 1 st Tier Tribunal (Criminal Injuries Compensation) (2) Irene Lamb [2010] EWCA Civ 1433 The CA looked at ss. 56 & 57 of the Scheme. The victim of an assault obtained an award of £2,500 in March 1999 for her physical injuries. There was no evidence that her claim then had included any psychiatric damage. Her GP records showed that in 2003 she had started counselling for panic attacks which were attributable to the somewhat frightening assault. She was diagnosed with PTSD. She 7 applied to the CICA to re-open her claim. An adjudicator refused that application which was quashed on appeal. The CICA then applied to overturn that quashing in the CA. The CA refused. The evidence was clear that the psychiatric damage the victim was suffering from was (a) attributable to the assault; (b) had not formed part of the original application; (c) constituted a “material change in the victim‟s medical condition” such that an injustice would occur if it was not re-opened; and (d) would not require “further extensive enquiries.” HUMAN RIGHTS ACT Richard & Gillian Rabone v Pennine Care NHS Trust [2010] EWCA Civ 698 The Claimant‟s daughter had been a voluntary patient in the Defendant‟s hospital suffering from depression with ideation of suicide and self-harm. Contrary to the parents concerns, the daughter was allowed home on a short leave, and regrettably committed suicide. The estate‟s claim was compromised, but the parents continued with their claim for damages under s.7 of the Human Rights Act 1998 for a breach of Article 2 (“Everyone‟s life shall be protected by law”) of the European Convention on Human Rights. This case follows on from Osman v United Kingdom (23452/94) (1999) 1 FLR 193 and Van Colle v Chief Constable of the Hertfordshire Police [2008] UKHL 50. Compare: Powell v UK (2000) 30 EHRR CD 362 and Savage v South Essex NHSA Trust [2008] UKHL 74. It is now clear that the state has “a positive obligation .... to take preventive operational measures to protect the life of an individual”. It would appear that where the “state” has incarcerated an individual the obligation is engaged (either in custody as a potential criminal, or in detention under the Mental Health Act). The issue here was whether the state, in the form of the NHS, had failed in that obligation where there was no compulsory detention - where does negligence become a breach of the Article? Here the CA stated that voluntary patients have no claim, because the operational obligation does not engage. COSTS Estelle Clarke v Colin Maltby [2010] EWHC 1856 (QB) The Defendant cross-examined the Claimant (a solicitor) on the basis that she was fraudulently exaggerating her symptoms. D‟s Counter Schedule had not expressly pleaded such fraud, and it was unsupported by any of the medical evidence. D did not succeed in showing such fraud. It conceded that it had to pay the costs, but refuted that it should be on the indemnity (rather than “standard”) basis. Owen J had little difficulty in ordering that D pay C‟s costs on an indemnity basis.