PI Newsletter Nov 2018 – Case Law Update

By Peter Savory, Pupil Barrister

Lewis v Tindale, Motor Insurers’ Bureau and Secretary of State for Transport
[2018] EWHC 2376 (QB)

Significance: The Motor Insurance Bureau’s obligations under the Uninsured Drivers Agreement 1999 extend to accidents involving vehicles being driven on private land.

Facts: Mr Lewis was grievously injured whilst walking on private land when hit by an uninsured vehicle being driven by Mr Tindale. By an earlier order, Mr Tindale was debarred from defending the claim, but the MIB had denied any liability as the injuries were not caused by ‘the use of a vehicle on a road or other public place’ pursuant to the Road Traffic Act 1988 s. 145. The court was required to determine three linked issues: First, was any liability that might be found against the Defendant required to have been insured pursuant to Part VI of the Act. Second, if the answer to the first question is no, does the liability fall to the MIB pursuant to the 2009 EU Motor Directive and, third, whether the Directive had a direct effect on the MIB.

Held: Driving on private land could not be included within the provisions of the Act since first it would require an amendment and not merely an interpretation of the given geographical limitation; second, there would be attendant policy considerations outside of the court’s purview and third, it would impose retrospective criminal liability. The EU Motor Directive imposed an obligation to ensure compulsory insurance and the CJEU, particularly in Vnuk v Zavarovalinca Triglav dd (Case C-162/13) [2016] RTR 10, made unequivocal such insurance extends to use of vehicles on private land. The MIB was an ‘emanation of the state’ and thus the Directive could be applied directly. In conclusion, the MIB was liable for minimum cover of EUR 1m per victim.

Darnley v Croydon Health Services NHS Trust
[2018] UKSC 50

Significance: The duty of care owed by a hospital is not negated or reduced by choosing to use non-medically trained staff in the role of receptionist and such duty extends to the period prior to formal admission to hospital.

Facts: Mr Darnley was assaulted and subsequently driven by his friend to the A&E department at Mayday Hospital, Croydon. Telling the receptionist that he thought he had a head injury as a result of an assault and that he was not feeling well, Mr Darnley was told that he would have to wait up to four or five hours before somebody looked at him (in fact he would have been seen much sooner by a triage nurse). Some 19 minutes later, feeling unwell, he left accompanied by his friend. Within the hour an ambulance had been summoned to his home to attend to a now seriously unwell Mr Darnley. He was returned to hospital and operated on for a haematoma. He suffered permanent brain damage in the form of a severe and disabling left hemiplegia.

The trial at first instance held that the harm was outside the scope of any duty owed by receptionist staff; that it would not fair, just and reasonable to impose liability; and that the connection between alleged inadequacies of information provided and the harm suffered was broken by the decision to leave. The Court of Appeal dismissed the appeal with Jackson LJ noting that the giving of incorrect information was not an actionable mis-statement.

Held: The NHS Trust had a duty not to provide misinformation to patients and such a duty is not avoided by distinguishing between medical and non-medical staff. The standard required is that of an averagely competent and well-informed person performing the receptionist role in an A&E department. The provision of misleading information, as occurred in the case, as to the time within which medical assistance might be available was negligent. The departure of Mr Darnley did not break the chain of causation; being told medical care might take many hours made a decision to leave reasonably foreseeable. The case was remitted back to the Queen’s Bench Division for assessment of damages.

Ellis v Kelly (Ellis, third party)
[2018] EWHC 2031 (QB)

Significance: The High Court considered to what extent, if at all, an 8-year old child could be contributorily negligent and whether such negligence could extend to a lack of parental supervision.

Facts: Caine Ellis, then aged eight years and eight months, was knocked down by a car driven by the Defendant and suffered a severe brain injury. In preceeding months Caine had been allowed to visit the local park unaccompanied by his mother, as long as he was with his older cousins. At some point on the afternoon of the accident Caine left the swings in the park, looking for other cousins who were at the skateboard park. It was inferred that he did not find his cousins and in returning to the swings was struck as he crossed a road. Accident reconstruction suggested the Defendant was travelling at between 31 to 40 mph and the judge found that it was likely to be in the upper end of that range. Whilst insurers admitted primary liability, they sought a finding of contributory negligence against Caine and a contribution from his mother by a Part 20 claim.

Held: The accident involved a momentary misjudgement on the Claimant’s part. But this should be set against the Defendant’s reckless conduct in driving at excessive speed, such driving being outside the Claimant’s expectation based on his experience. Accordingly, it would not be just and equitable to make a finding of contributory negligence against the Claimant. As for the Part 20 claim, it was held that Mrs Ellis was a responsible mother who took proper care of her son’s safety and it would impose too high a standard on ordinary parenting decisions to impose liability. In more general terms, Yip J observed insurance to cover such risks is not generally available, joining parents into litigation might encourage an over-cautious approach to parenting and, in the event of litigation, a parent best placed to act as a child’s litigation friend could no longer do so.

Hewes v West Hertfordshire Hospitals NHS Trust and others
[2018] EWHC 2715 (QB)

Significance: Can a summary judgment application be successfully made in a case requiring expert reports.

Facts: The Claimant was taken to hospital suffering from cauda equina syndrome following conversation with the 3rd Defendant, a doctor representing the out-of-hours GP service. An operation was delayed and the Claimant was left with some permanent dysfunction, he brought claims against the NHS trust, secondly the ambulance service and, thirdly, the doctor. At a CMC, 3rd July 2018 was set as the deadline for exchange of experts’ reports, yet the doctor applied for summary judgment on 27th February 2018. In support of the application he included his expert’s report which concluded the allegation was unfounded. C’s own expert report was not ready, but in response to the application his expert wrote briefly to indicate continued support for the claim. The Master deciding the application concluded that the Claimant had no reasonable prospect of establishing breach of duty against the doctor. This decision was appealed.

Held: Foskett J observed that a clinical negligence case is no different from any other: a weak case on liability of causation is vulnerable to a summary judgment application. But there will be few cases where this should be contemplated before exchange of experts’ reports. Even then, consideration of evidence “which can reasonably be expected to be available at trial and the lack of it” needs to be undertaken with caution. Turning to the facts of this case, Foskett J considered the issue of delay as was pleaded in the Particulars of Claim and held that it was impossible to say that the proposition was unarguable and clearly doomed to fail and that it would be a matter for the trial judge. Further, it was unreasonable to expect the Claimant’s expert to produce a reasoned response to the application, some weeks before the original deadline for his report. Experts were entitled, especially where continuing in full-time practice, to want deadlines identified and diarised. The appeal was allowed and the original trial date reinstated.

Page v RGC Restaurants Limited
[2018] EWHC 2688 (QB)

Significance: Whether a costs budget omitting the pre-trial and trial phase is still a budget within the CPR and whether sanction should apply.

Facts: Mr Page ordered a milkshake at a restaurant run by RGC Restaurants. Suffering from a nut allergy, Mr Page had sought reassurance the milkshake was suitable and was told it was. In fact, it contained cashew nuts. Mr Page suffered respiratory failure and cardiac arrest, leading to cerebral hypoxia and brain injury. Summary judgment having been granted in terms of liability, the case was moving to trial on issues of contributory negligence, causation and quantum and a CMCC was listed for December 2017. In advance of the CMCC the parties exchanged budgets, and much was agreed. But the Claimant took the view a second CMCC would be necessary and it was in fact too early to budget the pre-trial and trial phase. Master Thornett decided that even though the parties were in agreement, that did not override an obligation to file a budget and applying CPR 3.14 he held that the Claimant should be treated as having filed a budget comprising court fees only with the obvious cost consequences.

Held: On appeal Mr Justice Walker made a number of findings. First, that the Claimant’s budget did not meet the requirements of Precedent H, particularly having in mind the Guidance note available. Second, an agreement between the parties that the Claimant not include the trial phase did not negate CPR 3.14. Third, the Master should have considered in the hearing whether it was appropriate or not to apply the saving provision in CPR 3.14 and had not done so. Fourth, the breach on the Claimant’s part was moderately serious and moderately significant, but had not impeded the budgeting process in relation to all the other phases. In conclusion Mr Justice Walker decided that the sanction should not be applied to the completed parts of the budget, but should remain for the incomplete pre-trial and trial phases of the budget. He refused any relief from that sanction. Mr Justice Walker also observed that in Mitchell the Court of Appeal warned of the dangers of partial sanction but Page was exceptional in that there was an unusually clear dividing line between the satisfactory and unsatisfactory parts of the budget and therefore to what sanction did and did not apply.

The content in this newsletter is provided for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.