Personal Injury Update - July 2009
3 Jul 2009Contents
FARRAR’S BUILDING NEWS
In this month’s newsletter Tim Found provides a useful review of various issues that arise during a typical fast track case, summarising relevant principles relating to loss of holiday enjoyment, gratuitous care and Part 36 offers.
The Case Law Update was prepared by Changez Khan.
topFAST TRACK PRACTICE
This article is aimed at practitioners of both claimant and defendant Fast Track litigation and traverses:
I. Loss of Holiday Enjoyment
II. Care provided gratuitously
III. Is it a Part 36 Offer?
IV. When can a Part 36 Offer be accepted?
I. Loss of Holiday Enjoyment
Holiday enjoyment claims are frequently inadequately pleaded or evidenced. Where a Claimant has lost money as a direct result of the accident-related injuries, this should be claimed in special damage. For example, a pre-booked scuba-diving course in which the Claimant could neither participate nor have refunded.
When a Claimant has had their enjoyment of a holiday reduced by virtue of accident-related pain or restriction of movement, sums may be awarded in general damages. Usually Courts consider the cost of the holiday and award a proportion of that cost for loss of enjoyment. Often the rough cost of flights, sustenance and accommodation will be deducted as the Claimant will have had the benefit of flying to another country, consuming different food and drink and staying in a hotel.
It is theoretically possible, but unusual in practice for Courts to find that the Claimant lost the entire benefit of a holiday. Such a situation may arise in someone who developed severe and urgent stomach and bowel problems before departing on a holiday. It is easy to see how such problems could prevent any enjoyment of a holiday.
Claimants should separately plead loss of enjoyment as a particular of general damage and their advocates should, in appropriate cases, encourage the Court to make a distinct award for the same. Witness statements should include details of holiday costs and the Claimant’s thoughts regarding how the holiday was affected.
The variation of awards under this head is wide. The following comparable cases may be of some assistance to both Claimants and Defendants in valuing claims:
Borton v First Choice Holidays & Flights Ltd - LTLPI 2/2/2006 [1]
B contracted cryptosporidium prior to an extended holiday on which
she was to be married and have her honeymoon. Award - £4,000 [2]
Jones v First Choice Holidays & Flights Ltd - LTLPI 30/1/2006
J suffered from Salmonella and resulting IBS on a 2 week honeymoon. Award - £2,500
H(A Child) v First Choice Holidays & Flights - CLI 07/3199 [3]
H tripped over on the 2nd day of his holiday and had to go to hospital. He was unable to go swimming, play football or play in the sand for the remainder of the holiday. Award - £1,000
Campbell v Meyer - CLI 07/3219
C was thrown from his motorbike in an RTA a day before he flew to Australia on a 2 week holiday during which he was to be best man at a friend’s wedding. C was unable to do the scuba diving he had pre-booked. Award - £750
Patterson v Barraclough - LTLPI 18/9/2008
P was unable to ski for more than a couple of hours per day on a skiing holiday. Award - £500
Hutchinson v First Choice Holidays & Flights –LTLPI 12/4/2007
H suffered from food poisoning on a 1½ week holiday to Mexico. Award - £500
Bastow v Mann - CLI 08/2851
B went on holiday to New York 5 weeks after an accident which left her with whiplash-type injuries. She was able to sightsee during the day with the help of painkillers but was in too much pain to go out in the evening. Award - £250
B (A Child) v Bacon - LTLPI 4/9/2006
B was unable to participate in leisure activities on a holiday which commenced the day after the index accident. Award - £200
McMullen v Lynton Lasers Ltd - CLI 06/3186
M’s 1 week trip to Disneyland was impacted as he was unable to go on roller coasters or other rides. M was 32 years old at the time of his accident. Award - £150
It will come as no surprise to practitioners that, notwithstanding the spread of awards above, Courts habitually award sums in the hundreds of pounds rather than the thousands of pounds.
For further guidance, Volume I of Kemp & Kemp is useful. The examples above and Volume I of Kemp tend to show that loss of enjoyment claims attract higher awards when the claim is one for breach of contract between holidaymaker and holiday company than when the claim is one for personal injury resulting from a tort.
II. Care provided gratuitously
Arguments over rates of gratuitous care have largely been resolved by reference to Facts & Figures 2008/09 which provide the most recent figures for commercially provided care. There is limited scope for arguing the appropriate discount rate between 25% and 33% depending on the circumstances of the case (Evans v Pontypridd Roofing Ltd [2001] EWCA Civ 1657.)
A more effective line of attack for Defendants is on period(s) of care. Claimants should ensure that the number of hours of care provided is evidenced at the very least in the Claimant’s witness statement, and preferably in one by the carer as well. There should be a breakdown and, if necessary, justification of how those hours were spent. Care questionnaires are better than nothing if signed and verified with a statement of truth. There should also be medical opinion as to the reasonableness of such care hours.
The principles on recoverability of gratuitously provided care are explained by the unanimous decision of the House of Lords in Hunt v Severs [1994] 2 AC 350, delivered by Lord Bridge. Essentially, the injured Claimant who recovers damages under this head should hold them on trust for the voluntary carer. The Court of Appeal in ATH v MS [2002] EWCA Civ 792 went further:
"…if the terms of the trust seem unlikely to be fulfilled then the court awarding damages must take steps to avoid that outcome … [T]he trust is one which the court can, and in an appropriate case should enforce."
In cases at this level (i.e. the fast track) it will almost never be appropriate for a court to take it upon itself to set up a trust for the voluntary carer. Rather, if on the balance of probabilities, the monies are not likely to find their way to the voluntary carer, the Court should not make any award under this head.
One should consider the relationship between Claimant and carer, e.g. an ex-girlfriend living in another country and unaware of the proceedings; an estranged spouse or a deceased carer may not be thought likely to receive court-awarded monies.
III. Is it a Part 36 Offer?
CPR 36.2 sets out what is required for an offer to be a ‘Part 36 Offer.’ The most straight-forward, but often overlooked requirement is that the offer letter must state on its face that it is intended to have the consequences of Part 36. The easiest way to comply with this is to adopt the wording of the CPR and state "This offer is intended to have the consequences of Part 36."
Given the prevalence of Part 36 offers, it is common for offer letters to be assumed to have the consequences of Part 36 when in fact they do not comply with the most basic requirement above. It is therefore essential when considering settlement to check such offers. Frequently the other side’s counsel and / or solicitors will not be aware of offers, particularly if such offers were sent to the insurer pre-litigation. For those reasons, copies of all available offer letters (sent and received) should be sent with the brief to counsel.
IV. When can a Part 36 Offer be accepted?
Part 36 has had many incarnations over the years. The most recent developments are well known - the world probably does not need another BAA v Carver article. This then is a reminder to readers of a change brought into force a little over 2 years ago on 6th April 2007 by the Civil Procedure (Amendment No.3) Rules 2006 (SI 2006/3435).
This overhaul allowed Part 36 Offers to be accepted without the permission of the Court in many more circumstances than parties were able to previously. Most notably, Part 36 Offers became open to acceptance beyond the usual 21-day period without the permission of the Court. This amendment was doubtless to encourage out-of-court settlement.
The rule became, at CPR 36.9(2) that:
"Subject to rule 36.9(3), a Part 36 offer may be accepted at any time (whether or not the offeree has subsequently made a different offer) unless the offeror serves notice of withdrawal on the offeree."
The most common oversight is with regard to offers that are rendered obsolete by new medical evidence, surprisingly rapid recoveries or surveillance evidence. Both sides should be conscious of their Part 36 offers and consider serving notice of withdrawal of a previous offer at the same time as service of further evidence.
[1] LTLPI refers to Lawtel’s Personal Injury Quantum Reports
[2] The sums have not been updated for inflation
[3] CLI refers to Current Law Cases
topCASE LAW UPDATE
Alan Armsden (Executor of the Estate of Rachael Cheesewright, Deceased) v Kent Police [2009] EWCA Civ 631 (Arden LJ, Stanley Burton LJ, David Richards J)
26/6/09
Significance: negligence of police car driver for failure to use siren
A police officer (K) had been responding to an emergency call out. K drove round a bend at high speed and continued down the main road. His flashing blue lights were turned on, but not his siren. Around the same time, D had been emerging from a side road around 100 metres further up. She was in the process of turning right onto the main road, across K’s path. She had stopped at the T-junction, looked right, looked left and then moved off – without seeing K. By the time D did see K, she had already pulled out and it was too late to avoid collision. There was an accident and D was killed.
Held at first instance: The accident was due entirely to K’s negligence in driving round the bend at excessive speed and in failing to use the police siren.
Held on appeal to the Court of Appeal:
1. Primary liability rested with D. It had been negligent of her to glance right only once before moving off. After checking her left, D ought to have looked right for a second time, to ensure that no cars were emerging from around the bend. D should then have maintained a lookout to the right as she emerged; Heaton v Herzog [2008] EWCA Civ 1636 applied.
2. Notwithstanding, there was contributory negligence on K’s part, assessed at 40%. This consisted of: (i) K travelling too fast around the bend. K’s speed was such that he would have found it very difficult if not impossible to avoid a car that had already emerged onto the main road from the side road. (ii) Further, K’s failure to use his police siren had been careless. Using a siren would have afforded D greater warning of the police car’s approach. D would probably have heard the siren before seeing K and that would have allowed her greater time to react.
Gray v Thames Trains Ltd & Others [2009] UKHL 33 (Lord Phillips of Worth Matravers, Lord Hoffmann, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Brown of Eaton-under-Heywood)
17/6/09
Significance: operation of the principle of ex turpi causa (‘narrow’ and ‘broad’ versions) to extinguish claims for both general and special damages flowing from a claimant’s criminal act and sentence.
As a result of T’s negligence, G was injured in the Ladbroke Grove rail crash and he developed PTSD. Some time later, G stabbed a pedestrian to death in an incident of road rage. G pleaded guilty to manslaughter on grounds of diminished responsibility (due to his PTSD) and a hospital order was made against him. G made several civil claims against T: (i) general damages, in respect of the remorse G now felt for his crime; (ii) special damages, for his loss of earnings as a result of his detention; and (iii) an indemnity from T against any claims that might potentially be brought by the dependents of G’s victim.
Held at first instance: Public policy precluded all of G’s claims.
On appeal to the Court of Appeal: Public policy precluded the claim for general damages only, not the claim for special damages.
On further appeal to the House of Lords:
Trial judge’s decision restored.
1. As to special damages, G’s claim for loss of earnings was excluded on grounds of public policy. According to the narrow version of the ex turpi causa rule, G could not recover for any losses – including loss of earnings – that flowed from the lawful imposition of a criminal sentence; Clunis v Camden and Islington Health Authority (1998) QB 978 (CA) applied. The Court of Appeal had been wrong to hold otherwise.
2. As to general damages, G’s feeling of remorse did not (strictly speaking) flow from the imposition of the criminal sentence. G was remorseful not because he had been sentenced, but because he had committed the crime itself. Notwithstanding, G’s claim for general damages was still precluded, albeit on a slightly different basis. The basis for exclusion this time was a broader reading of the ex turpi causa principle. Namely, G’s feelings of remorse were inextricably bound up with the criminal act itself and so should not be recoverable.
3. G’s claim for an indemnity also flowed from the crime itself, as opposed to the criminal sentence. It should be excluded on the same basis as his claim for loss of earnings.
Anita Shah v (1) Wasim Ul-Haq (2) Samara Khatoon (3) Zahida Parveen
[2009] EWCA Civ 542 (Smith LJ, Moses LJ, Toulson LJ)
9/6/09
Significance: (i) fraudulent claims – whether supporting another party’s fraudulent claim affects the abettor’s own genuine claim; (ii) clarification of a court’s power to strike out under CPR, r.3.4(2) come the end of a hearing.
S admitted liability for a road traffic accident. D1 and D2 had been in the other car. They issued claims against S. D3 alleged, fraudulently, that she too had been in the car with D1 and D2. S denied that D3 had been involved in the accident. S applied for all three claims to be struck out: D3’s claim on the basis that it was fraudulent; and D1’s and D2’s claims on grounds of abuse of process, since they had lent assistance to D3 in the pursuit of her fraudulent claim.
At first instance: The judge struck out D3’s claim, but not D1’s nor D2’s. D1 and D2 both succeeded in their claims for damages. However, to mark his disapproval of their conduct, the judge ordered D1 and D2 to pay two-thirds of S’s costs of defending their claims. S appealed.
On appeal: The judge considered that the fraud perpetrated by D1 and D2 had not been so serious as to warrant their claims being struck out and refused to strike them out.
On further appeal to the Court of Appeal:
1. As a matter of principle, where a claimant dishonestly exaggerates his own claim the appropriate response is to reduce his damages in line with the judge’s actual findings. The court should not to disentitle the claimant of his claim altogether. A fortiori, where D1 and D2 had lent support to another party’s fraudulent claim (D3), it would be wrong to deprive of them of their own valid claims. The obiter comments made in Malloy v Shell UK Ltd [2001] EWCA Civ 1272 could not be relied upon as authority to support the contrary.
2. The Court of Appeal took the opportunity to clarify generally the scope of a court’s power to strike out under CPR, r.3.4(2) come the end of a hearing. (a) In principle, if a trial has concluded and the judge has been able to make reliable findings of fact, he should give effect to them. It will not at that stage be open to him to strike out a genuine claim. (Yet he does reserve the right to express his disapproval in any order for costs.) (b) By way of exception, a judge does have the power to strike out a claim at the end of proceedings where a fair trial is no longer possible, or where it becomes apparent that the claim cannot succeed without the benefit of the corrupted evidence. Nominees Inc v Blackledge (2000) CP Rep 59 CA considered.
top