Personal Injury Update - February 2010
11 Feb 2010Contents
FARRAR’S BUILDING NEWS
January saw the much anticipated publication of the Jackson Report on Civil Litigation Costs which will have undoubtedly contributed to global deforestation as law firms and chambers printed out the Tolkienesque volumes before decrying the end of personal injury litigation as we know it and rushing off to buy Woodfall on Landlord and Tenant so as to diversify their practices.
Whilst such apocalyptic visions will hopefully have mellowed somewhat with the passage of time, Emma Sole has provided a helpful summary on a more immediate change to personal injury litigation being implemented by the Ministry of Justice.
The Case Law Update was prepared by Bonike Erinlé.
topTHE NEW MoJ PROCEDURE
Anecdotally led by the concern that District Judges spend too much time assessing damages in road traffic cases, the Ministry of Justice ("MoJ") proposals are currently with the Civil Procedure Rules Committee for the drafting of rules, pre-action protocols and practice directions.
The MoJ proposals will apply to road traffic accidents, which occur after 6th April 2010 where liability is admitted, the claim is valued between £1,000 and £10,000 and involves an element of personal injury. The Ministry makes clear in its policy document that the proposal do not prohibit a claimant, as now, electing to settle directly with an insurer/defendant without using the process. Dependant on their success, it is understood that the MoJ proposals may be expanded to other areas of fast track litigation at a later date.
Where applicable the proposals dictate the entire process from the pre-litigation start of the claim, including direction as to procedures for subsequent medical reports, interim payments, vehicle damage, hire charges, seatbelt contributory negligence, claims involving children, claimants in person, and claims which begin to be litigated close to the end of the limitation period.
Based on the policy agreed by the Ministry, the MoJ process is laid out in 3 stages.:
Stage 1: The Claimant’s solicitor files a Claim Notification Form (CNF). The CNF is sent to the Defendant who has 15 business days to make a decision on liability (MIB 30 days). These time limits are not extendable.
Where there is no response or a denial of liability the case will leave the process and enter into the Pre-Action Protocol for Personal Injury Claims, starting the three month investigation period. The claim will also leave the process if fraud is alleged at Stage 1.
Where liability is admitted (whether contributory negligence is alleged or not) the Claimant solicitor is paid £400 in respect of Stage 1. If the Claimant solicitor is on a CFA and the claim settles before Stage 3 commences, a success fee of 12.5% (£50) is payable on top of that £400. Payment of the costs will be made within 10 business days from the end of the 15-day period allowed for responding to the CNF. Where payment of these costs is not made, the claim will leave the process.
(The table at the end of this overview outlines the costs payable at each stage).
Stage 2: The Claimant’s solicitor obtains a medical report. There is a template medical report in the MoJ report. Although there is no time limit on the obtaining of the medical report, within 15 working days of the Claimant confirming the medical report is factually accurate, the Claimant solicitor must complete and send the Settlement Pack Form (Stage 2) to the Defendant insurer. The SPF 2 will be sent electronically together with the medical report and any receipts/evidence of special damages claimed and receipts for disbursements should also be sent. The SPF 2 requires the Claimant to make an offer for settlement of the claim.
The Defendant insurer then has 15 working days to accept the Claimant’s offer or make a counter offer of its own. This time limit can be extended but no extra costs will be awarded (if an extension is not agreed and the time limit is not adhered to, the claim will leave the process). The Claimant then has 20 working days to consider the Defendant’s counter offer.
If, having seen the medical evidence, the Defendant wishes to question or deny causation, the claim will then leave the process.
If the matter is not settled, the Claimant’s solicitor prepares the Stage 3 version of the SPF. The SPF 3 is sent to the Defendant who has 5 working days to provide brief comments for the (default) paper hearing and check over the form for inaccuracies.
If the matter settles before Stage 3, £800 is payable as Stage 2 costs to the Claimant’s solicitors. If the Claimant solicitor is on a CFA and the claim settles at this stage, a success fee of 12.5% (£100) is payable on top of that £800. The Stage 2 costs are in addition to the Stage 1 costs outlined above.
Stage 3: Either side makes an application to the Court for determination of quantum. The party will send the SPF 3, medical report(s), documentation of special damages and disbursement vouchers to the Court for a paper hearing in respect of which the Judge will have to provide written reasons. Either party can request an oral hearing. The Court can also direct the same of its own motion.
If the claim settles before a hearing, additional Stage 3 costs of £250 are payable to the Claimant solicitor. In those circumstances, a solicitor on a CFA will also receive 12.5% (£181.25) of each costs stage up to and including that £250. If the Claimant obtains judgment at a paper hearing and beats the Defendant’s offer, Stage 3 costs of £250 are payable. A Claimant solicitor on a CFA would also receive a 100% uplift on that £250.
If the Claimant obtains judgment at an oral hearing and beats the Defendant’s offer, Stage 3 costs of £500 are payable. A Claimant solicitor on a CFA would again receive a 100% uplift on that £500.
AVAILABLE COSTS
|
Concludes: |
At Stage 1 |
At Stage 2 |
Before a Stage 3 Hearing |
With Judgment on the Papers |
With Judgment after Oral Submissions |
|
(but after application to Court) |
|||||
|
If no CFA |
£ 400.00 |
£1,200.00 |
£1,450.00 |
£1,450.00 |
£1,700.00 |
|
If on CFA |
£ 450.00 |
£1,350.00 |
£1,631.25 |
£1,700.00 |
£2,200.00 |
The table is simply an overview of the policy that has been adopted by the Ministry. How this policy is to be drafted as CPR compliant rules is another matter entirely. A dedicated follow up to this overview will be circulated just as soon as the relevant rules become available, hopefully some time before 6th April 2010. Watch this space!
topCASE LAW UPDATE
Paul Wynne Jones v Sue Kaney (2010)
QBD, 21/1/2010 (Blake J)
[2010] EWHC 61 (QB)
Significance: whether a medico-legal expert who is sued for negligence can raise a defence of witness immunity.
Facts: In May 2003, J’s solicitors instructed K to advise on psychological aspects of a psychiatric injury for which J was seeking damages in a personal injury claim. K initially reported that J had symptoms that suggested PTSD while the defendant’s expert in that claim concluded that J had been exaggerating his symptoms. In October 2004, the experts were ordered to prepare a joint statement. K signed the joint statement that her opposite number had prepared without comment or amendment. The report stated that both experts agreed that J’s psychological symptoms after the accident were no more than adjustment reactions and that J had been very deceitful in his reporting. This statement was clearly damaging to J’s personal injury claim and, unable to persuade the District Judge that K should no longer act in the matter, J was forced to settle his case for a sum considerably less than if K had remained true to her former opinion. J thus brought proceedings against K, which K responded to by issuing an application to strike-out on the basis that K enjoyed witness immunity (pursuant to the Court of Appeal decision in Stanton v Callaghan [2000] QB 75). J argued that Stanton was no longer binding law because: (i) the underlying principles for expert immunity were substantially based on the advocate immunity, which had subsequently been overturned by Arthur J S Hall v Simons [2002] 1 AC 615 (HL), and; (ii) following the enactment of the Human Rights Act 1998 and a decision from the European Court of Human Rights (Osman v The United Kingdom [1991] 1 FLR 193), it was clear that domestic rules on restrictions on tortious liability, that were previously considered as a class of immunity, may have to be re-examined.
Held (Blake J): application dismissed but with the grant of a certificate under s. 12 of the Administration of Justice Act 1969 for appellate review in the Supreme Court. Stanton remains good law that is binding on the Court of Appeal down. There is no judgment of the European Court of Human Rights that directly challenges the policy assumptions behind immunity cases like Stanton and the fact that subsequent developments in purely domestic jurisprudence have narrowed or undermined the policy basis for expert witness immunity does not deprive the Stanton decision of its binding effect. However, there is a "substantial likelihood" that on re-examination by a superior court, it will emerge that the public policy justification for the rule cannot support Stanton as law.
Merthyr Tydfil County Borough Council v C (2010)
QBD, 21/1/2010 (Hickinbottom J)
[2010] EWHC 62 (QB)
Significance: no blanket immunity for local authorities from suits in negligence brought by parents simply because there may be a potential conflict of duty between the duty towards the child and the duty towards the parent.
Facts: C seeks damages for personal injury for psychiatric harm, which C alleges was caused by M’s negligence in failing to properly deal with reports made by C in 2002 and 2004 in relation to sexual abuse of C’s children (A and B) by another child. In a letter to C from M written in 2005, M acknowledged that there had been a series of operational failings with regard to the management of C’s complaints. However, in July 2009, M applied to strike out C’s claim or obtain summary judgment on the basis that the Particulars of Claim disclosed no reasonable ground for pursuing the claim and that C had no real prospect of success: M owed no duty of care to C in line with D v East Berkshire Community NHS Trust [2003] EWCA Civ 115 (CA); [2005] UKHL 23 (HL).
Held at first instance (Jarman J): application refused.
Held on appeal (Hickinbottom J): appeal dismissed. The judge was entitled, and correct, to exercise his discretion in refusing the application. (i) People may be subject to a number of duties, at least provided that they are not irreconcilable, and there is considerable authority to the effect that even where a local authority owes a duty of care to a child, it is not immune from also owing a duty of care to that child’s parents (a good example being A v Essex County Council [2003] EWCA Civ 1848): D v East Berkshire distinguished. It is only where the usual consonancy of interests between parent and child is displaced (as in D v East Berkshire where the parent was suspected of abusing the child) that a local authority can rely on immunity against a claim from the parent. (ii) The concept of "third parties" is based on the premise that the scope and content of the duty of care owed to the primary victim and the third party are the same. Outside the narrow exceptions, a third party is not allowed to ‘piggy-back’ off the duty owed to the primary victim. In this case, M owed C a distinct duty of care from that which it owed her children because C had engaged with M in her own right.
Amarjit Kaur Bhamra (Widow & Administratrix of the Estate of Kuldip Singh Bhamra, Deceased) v Prem Dutt Dubb (t/a Lucky Caterers) (2010)
CA (Civ Div), 20/1/2010 (Sir Anthony May, Wall LJ, Moore-Bick LJ)
[2010] EWCA Civ 13
Significance: extended duty of care for caterers providing food to persons with egg allergies who reasonably expect their dishes not to contain egg.
Facts: KB attended as a guest a wedding in a Sikh temple where D provided the wedding feast. Among the food served was ras malai, some of which KB ate. Following consumption, KB had an allergic reaction to egg contained therein and died in hospital a few days later. KB’s widow (AB) brought a claim seeking damages for personal injury caused by D’s breach of contract and negligence in serving food that contained egg. The Sikh religion forbids the consumption of meat, fish or eggs and it was well understood by D (himself a Sikh) that the food to be served at the wedding should not contain any ingredients of that kind. D denied including eggs in his preparation of the ras malai and further denied sending out for extra supplies when, as the evidence suggested, guest numbers exceeded expectations. The opinion of AB’s eminent immunologist was that egg must have been an intentional ingredient of the offending dish given the type of reaction (anaphylaxic) that KB had had to the substance. D’s expert, on the other hand, opined that even a trace contaminant can cause a fatal reaction and that it was important to note the relatively slow onset of allergic symptoms KB had manifested.
Held at first instance (Harris QC HHJ): judgment for AB (dismissing the claim under the Contracts (Rights of Third Parties) Act 1999 but upholding the claim in negligence) in the agreed sum of £415,000.
D appealed on the basis that the judge erred in (i) finding that egg had been an intentional ingredient of the ras malai rather than a trace contaminant; (ii) holding that D owed a duty of care to prevent KB suffering physical harm through eating egg; (iii) holding that D breached a duty of care without considering whether D knew or ought reasonably to have known that the ras malai brought in might contain egg; (iv) holding that a burden had passed to D to show that KB’s death occurred despite the exercise of reasonable care on D’s part.
Held by Court of Appeal: appeal dismissed. (i) The judge was entitled to prefer AB’s expert’s views over D’s, on which there was a solid foundation to conclude that one of the dishes eaten by KB contained egg as an intentional ingredient. (ii) There is no general duty to provide a warning that dishes contain, or may contain, egg (or traces of), however, in these circumstances, D was under a clear duty to take reasonable care not to serve dishes containing egg so as to avoid offending against the Sikh religion. In addition, D knew, firstly, that some people are allergic to egg and that any such person would suffer illness or more serious injury if he ate food containing egg, secondly, that those who attended the wedding (including egg allergic guests) would expect the food to be completely egg-free and therefore feel confident eating it and, thirdly, that KB (who knew himself to be allergic to egg) had every reason to rely without inquiry on D to supply food, at a Sikh ceremony, which did not contain egg. As to grounds (iii) and (iv) of the appeal, the judge was correct to consider that the concept of a shifting evidential burden of proof applied in this case, however, he did not go quite far enough in satisfying himself on the issue of breach. To infer that D must have failed to take reasonable care to ensure that no egg was present in the dishes, an additional inference that D was aware at the time that some recipes for ras malai included eggs was needed, which, upon supplementary findings was found to be the case.
Michael Henry v Thames Valley Police (2010)
CA (Civ Div), 14/1/2010 (Pill LJ, Arden LJ, Smith LJ)
[2010] EWCA Civ 5
Significance: in circumstances that are not ‘extreme’, a police officer is entitled to use a car as a partial barricade to impede a suspect’s possible escape provided he does not do so in such a way as to create a foreseeable risk of injury.
Facts: H, a motorcyclist, was on his way home from a social event when traffic officers decided to follow him. As the journey proceeded, the officers formed the view that H was speeding and, at times, driving dangerously. H failed to pull over when signalled to and a game of ‘cat and mouse’ ensued. The pursuit ended when H entered his home grounds and prepared to dismount. As H did so, one officer got out of the car while the other, concerned that H was going to try to escape and potentially assault that other officer, drove the vehicle towards H and his motorbike, in an attempt to impede him. H suffered serious injury to his right leg when it became trapped under the offside wheel of the police vehicle.
Held at first instance (Recorder Flather QC): claim dismissed. Either the accident was caused by H himself because of his failure to stop and surrender in the first place or by a pure error of judgment on the officer’s part in driving "just a bit too close to the motorcycle". Amongst his findings, the Recorder also found that H had "stumbled into the offside tyre and injured himself".
H appealed on the sole ground that the Recorder’s conclusion that the officer had not driven negligently was not open to him on the evidence.
Held by Court of Appeal: appeal allowed. (i) There was no evidential basis for at least two of the Recorder’s findings, including that H had stumbled into the tyre and injured himself. (ii) A police officer is entitled to use a vehicle as a way of barricading a suspect provided he does it in a way that does not create a foreseeable risk of injury. Only in ‘extreme circumstances’ (for example, in attempting to apprehend a "dangerous criminal at large") may it be justifiable to barricade a suspect even where that creates a foreseeable risk of injury. The instant case presented no such circumstances. (iii) An officer who decides to use his car as a barricade has to exercise a reasonable degree of skill and care in making a judgment as to where to position the car. In this instance, the officer was negligent; he drove the car into a space where he knew H was dismounting, which was simply too close for safety. (iv) "There was no dispute at the bar as to the approach th[e] court should take to the assessment of contributory negligence": 60% responsibility on H and 40% responsibility on the police.
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