Personal Injury Update – November 2014

Published: 01/11/2014 | Newsletters, Personal Injury


Contents

  • News
  • What Price The Loss Of A Wife?
  • An Obscure Tort Revisited: OPO v MLA
  • Case Law Update

News

260115-farrars.1195By Nigel Spencer Ley

In this month’s family-orientated Newsletter Helen Hobhouse attempts to put a value on the lost services of a wife, while Rob Golin considers whether the court has power to stop a father intentionally inflicting psychiatric damage on his child (some lines of Philip Larkin come to mind). The Case Law Update was prepared by our new pupil Joel McMillan.

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What Price The Loss Of A Wife?

Helen HobhouseBy Helen Hobhouse

“A wife of noble character who can find ? She is worth far more than rubies.”

(Proverbs 31 verse 10)

It has long been recognised that the loss of services (cooking, cleaning, laundry, gardening, decorating etc.) provided by a wife/mother or husband/father can form an important part of a dependency claim under the Fatal Accidents Act 1976. Whilst there have been a number of reported cases dealing with the valuation of a mother’s services, however, there have been remarkably few which have considered the loss of a wife’s services once the children have left home.

The recent case of Knauer v Ministry of Justice [2014] EWHC 2553, although only a first instance decision, is therefore of real significance in terms of the valuation of these types of claims.

Case Law Prior To Knauer

In Thomas v Kwik Save Stores Limited (1999) (Lawtel A2/1999/0871), the claimant widower was aged 64 at the time of trial and at the time of her death his wife was aged 60. The claimant’s wife suffered from a number of medical problems prior to her death, including high blood pressure, diabetes and osteoarthritis. She was nevertheless able to cook and carry out light cleaning and the claimant estimated that she spent about 25 to 30 hours per week on household chores and gardening.

At trial the claimant’s counsel invited the judge to value the loss of her services at £10,000 per annum multiplied by 12.78 (a multiplier which took into account the claimant’s wife’s reduced life expectancy) i.e. a total award of £127,800. The defendants contended that a global sum of between £5,000 and £10,000 would be appropriate. In rejecting the defendants’ submissions the judge commented as follows;

“that (£5,000 to £10,000) sounds like a lot of money but, in fact, it nowhere near compensates the plaintiff for the loss of a person who may have been disabled, who may have suffered from various ailments, but who was a thriving and vivid part of his marriage, and also was doing a lot and probably doing more than enough to compensate for her disabilities.

I consider that the appropriate sum for compensation for loss of services because of the dependency of the plaintiff upon the unfortunate deceased is £50,000”.

The Court of Appeal considered that in making this award the trial judge had failed to have sufficient regard to the wife’s failing health and the impact this would have had on her capacity to provide services in future. They also felt that the judge had been unduly influenced by a desire to compensate the claimant for the loss of a close and loving companion. Without giving any further detailed reasoning the Court of Appeal reduced the award for the loss of future services to £20,000.

Similarly, in Cox v Hockenhull [2000] 1 WLR 750, the claimant’s wife was disabled prior to her death and her health was deteriorating. Notwithstanding her disabilities, however, the deceased was able to do all the laundry and cooking and she did all the household accounts. At trial the trial judge valued the loss of her services at £2,400 per annum x 7 (to reflect her reduced life expectancy) i.e. a total award of £16,800.

On appeal Lord Justice Stuart Smith agreed with the submissions of the defendants that this was not a case where it was possible to quantify the loss of services on the basis of employing a housekeeper or even a home help for part of the time. As in Thomas v Kwik Save, without any further detailed reasoning, the award of £16,800 was reduced to £7,500.

Bordin v St Mary’s NHS Trust [2000] Lloyd’s Rep was a case which involved only the valuation of a mother’s services, as the husband and father took no part in the litigation. In this case, however, Mr Justice Crane expressed his reservations about arbitrary “broad brush” assessments of loss of services claims;

“In so far as there is a reasoned basis which can be found for the assessment, it seems to me appropriate for the judge to use that basis, checking at each stage the reasonableness of the claim and standing back at the end of the calculation to check that there has been no over compensation. It would be inappropriate to apply a “broad brush” artificially to the total, or to do so arbitrarily, and it is to be noted that there were specific reasons in both Spittle v Bunney and in Stannley v Saddique why the Court of Appeal reduced the judge’s award”.

In Manning v King’s College Hospital NHS Trust [2008] EWHC the trial judge duly eschewed a broad brush approach and adopted instead a detailed analysis of the duties carried out by the deceased wife and mother prior to her death. Tragically, however, the surviving husband and father died of cancer before the children left home. The judge in this case did not, therefore, have to go on and consider the value of his wife’s services to him alone.

Knauer v Ministry of Justice

In Knauer v Ministry of Justice [2014] EWHC 2553 the claimant widower was aged 49 when his wife, who was aged 46, died of mesothelioma. At the time of her death the couple’s three sons were aged 22, 20 and 16.

Mr Justice Bean described them as an old fashioned couple in that Mrs Knauer cleaned, cooked, changed the beds, laundered and ironed the clothes, did the shopping and walked the dogs. In addition, she decorated the house when necessary and tended to the garden.

At trial the defendants’ counsel argued that because Mr Knauer had not in fact engaged a housekeeper, cleaner, gardener or decorator since his wife’s death the claimant should not recover any damages for past or future services dependency. Mr Justice Bean in rejecting these submissions made the following pithy observations;

“This submission with respect is misconceived, on basic principles of the law of tort. If a claimant’s brand new Rolls Royce is written off through the defendant’s negligence the damages must include its replacement value even if the claimant decides that he will change to a cheaper car or in the future take public transport. The same principle applies to claims for loss of services under the Fatal Accidents Acts; and to claims for future loss, though not past loss, brought by a living claimant for her own personal injuries (Daly v General Steam Navigation Limited [1981] 1WLR 120). Of course in a sense the value of a lost spouse cannot be measured in money terms (see Proverbs, chapter 31 verses 10ff) but the law has to do the best it can.

Mr Poole (defendants’ counsel) is right to say that in predicting the future one can take account of what is known to have happened already. As Aneurin Bevan said in a different context “why look into the crystal ball, when you can read the book?”. The classic example in tort law is a Fatal Accidents Act claim where the surviving spouse has himself died by the time of trial : there will be no award for his future dependency, though there may be for that of the deceased children. But this does not alter the basic rule that the claimant is entitled to the value of what he has lost. Indeed Mr Poole’s submission is contradicted by high authority: in Hay v Hughes [1975] QB 790 at 809B Lord Edmund Davies said that “the fact that a widower decided to manage himself after the death of his wife would not disentitle him to sue for and recover damages for the pecuniary loss he had sustained” (paragraphs 26 and 27 of the judgment).

On the question of the appropriate multiplicand, Mr Justice Bean heard evidence from care experts as to the costs of a resident housekeeper and the cost of employing cleaners and cooks, both directly and through an agency. He rejected the claimant’s primary submission that the claimant’s claim should be assessed by reference to the cost of a resident housekeeper (£25,168 per annum) but he accepted that continuity of services could only be provided through an agency and he therefore allowed 20 hours per week at £16 per hour giving an annual figure of £16,640 per annum.

In addition to this sum he allowed £900 per annum for gardening and £600 for decorating. The total multiplicand for the loss of services claim was therefore £18,140 per annum.

This figure was then used to calculate past services dependency to trial (£88,160) and future services dependency (£329,241).

As will be apparent, these sums are very significantly in excess of the previous reported awards for future services dependency and it may be that this aspect of the judgment is revisited on appeal. I understand that claimant’s counsel in Knauer has sought permission to leap frog an appeal to the Supreme Court on the issue of the calculation of the multipliers in fatal accident claims. Mr Justice Bean considered himself bound by the House of Lords decisions in Cookson v Knowles [1979] AC 557 and Graham v Dodds [1983] 1 WLR 808 but indicated that he would willingly have departed from the conventional approach had that course been open to him (paragraph 17 of the judgment).

If such an appeal is pursued then a cross appeal on the issue of services dependency may well follow.

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An Obscure Tort Revisited: OPO v MLA

Robert GolinBy Robert Golin

Nineteenth century courts were an unforgiving place for claims relating to psychological injury. In Victorian Railways Commissioner v. Coultas (1883) 13 App. Cas 221 the plaintiff (the “claimant” from hereon in) failed in her action for psychological injury (caused when she narrowly avoided being hit by a train as a result of the defendant’s negligence) as nervous shock was found to be too remote a consequence of a negligent act to be a recoverable head of damages.

However, the general rule began to relax towards the end of the century, and in Wilkinson v. Downton [1897] 2 QB 57 the general rule was held not to apply where the defendant’s conduct was calculated to cause harm.

In that case, the defendant played a practical joke on the claimant. He went to her house and told her that: (i) her husband had broken both legs in an accident; (ii) that he was laying at The Elms public-house at Leytonstone; and (iii) that she should go to him at once with two pillows. Those statements were false. However the defendant intended them to be believed and the claimant did believe them, with the result that she became seriously ill from a shock to her nervous system.

Wright J found for the claimant: “The defendant has, as I assume for the moment, wilfully done an act calculated to cause physical harm to the plaintiff – that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act” (page 58-59).

Two decades later, the rule in Wilkinson was applied in Janvier v. Sweeney [1919] 2 KB 319. In that case the second defendant went to the claimant’s house (on the first defendant’s behalf) to blackmail her for information. He said, untruthfully, “I am a detective inspector from Scotland Yard, and represent the military authorities. You are the woman we want as you have been corresponding with a German spy.” Those statements caused the claimant to suffer physical and psychiatric injury, which the defendants knew was a likely consequence. The claimant succeeded in her claim for damages under the rule in Wilkinson.

In the 21st century, Wilkinson was examined by the Court of Appeal in Wong v. Parkside Health NHS Trust [2001] EWCA Civ 1721 and the House of Lords in Wainwright v. Home Office [2003] UKHL 53. Most notably, in Wong, Hale LJ (as she then was) rejected the proposition that mental suffering falling short of a recognised psychiatric illness was sufficient to found a case on Wilkinson, even if there was an intention to cause it.

In October 2014, the Court of Appeal gave judgment in OPO v. MLA [2014] EWCA Civ 1277, which considered the rule in Wilkinson in the context of an application for an interim injunction.

The case related to a book written by MLA, as yet unpublished. MLA was the father of the claimant, OPO. MLA was a talented performing artist who had obtained a high degree of distinction in his career despite suffering years of sexual abuse at school. He was traumatised by those events and had, as a consequence, self-harmed and suffered episodes of severe mental illness. In the book, MLA spoke about his experiences and described a means, through his artistic pursuits, of coping with the trauma of the past. The book was said to contain, “an important message of encouragement to those who have suffered similar abuse…” (para.1 of the judgment).

However, OPO suffered significant disabilities in the form of a combination of ADHD, Asperger’s, Dysgraphia and Dyspraxia. Despite his disabilities, OPO’s carers described him as computer savvy, likely to find the book online himself, or encounter it via friends or at school. The evidence of two psychologists for OPO was that, in the event that OPO read the book, it would be likely to exert a catastrophic effect on his self-esteem and cause him enduring psychological harm.

Thus, OPO (through his litigation friend) brought injunctive proceedings against MLA to stop the publication of the book on the basis that, by publication, MLA would commit one or more of the following torts:

  • (i) misuse of private information (“MPI”);
  • (ii) negligence;
  • (iii) intentionally causing psychiatric harm under the rule in Wilkinson v. Downton.

Point (i) failed. The Court of Appeal found that there was no cause of action for MPI as the information in the book did not belong to OPO. The information in the book was about MLA and so OPO could not sue for MPI.

Point (ii) failed. The Court upheld the first instance judge’s decision that there was no general common law duty of parents, enforceable by injunction or compensable in damages, to protect their children from emotional or psychological injury.

However, the Court found that OPO had sufficiently good prospects of success at trial of establishing liability under the rule in Wilkinson, such that an interim injunction should be granted. In relation to liability under the rule in Wilkinson, the following points can be distilled from Arden LJ’s judgment:

(1) Falsity is not necessarily required

The judge at first instance found that the rule in Wilkinson did not extend beyond false reports. MLA argued that every case applying Wilkinson had involved false words or threats. On that basis, the content of MLA’s book did not engage the rule in Wilkinson.

Arden LJ disagreed: “it is likely that at trial it would be held that the tort extends beyond conduct consisting of false words or threats” (para.66).

(2) Action must be “unjustified”

MLA’s alternative submission was that, if false words or threats are not required, the relevant action must nevertheless be “unjustified”.

Arden LJ agreed with this principle: “It is inconceivable that the law would render all intentional statements which cause psychiatric harm actionable in damages. In some cases, a person may have to tell bad news which is liable to cause psychiatric harm. But there may be many ways in which the court could draw the line between acceptable intentional statements or acts which cause psychiatric harm, and those which are actionable under this head.” (para.68).

As to the application of this principle in OPO’s case, Arden LJ found that lack of justification was present. A claimant need only show that an act was “unjustified in the sense that that the defendant was not entitled to do it vis-a vis the particular claimant” (para.69, underlining added). MLA had agreed to use his best endeavours to ensure that OPO was protected from harmful information, and Arden LJ found that that was, “sufficient to mean that there is no justification for his words, if they are likely to produce psychiatric harm” (para.69).

(3) Intention to cause harm

A cause of action would be made out if there was intention to cause harm or recklessness as to whether harm would be caused. But there was also a consistent line of authority to suggest that intention to cause harm could be imputed if the harm was likely to be caused and the defendant carried on to perform the relevant act.

In the instant case, intent to cause harm to OPO could be imputed to MLA. He could not be heard to say that he did not intend the book to reach OPO, as it was dedicated to OPO and some parts of it were directed to him. Further, MLA had specifically acknowledged the risk of harm to OPO posed by his learning of the details of MLA’s past.

While the Court noted that an interlocutory application for an injunction “is not the occasion for a definitive decision on the scope” of the rule in Wilkinson, the judgment provides a useful survey of the historical development of the rule, and the requirements for establishing liability. Despite Lord Hoffman’s suggestion in Wainwright that the rule has, “no leading role in the modern law” (para.41), Mrs Wilkinson would no doubt be pleased to hear that it still has legs (pun intended).

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Case Law Update

Joel McMillanBy Joel McMillan

National Grid Electricity Transmission Plc V McDonald (Deceased)

[2014] UKSC 53

Supreme Court (Lord Neuberger PSC, Lady Hale DPSC, Lord Kerr JSC, Lord Clarke JSC, Lord Reed JSC)

Significance: The Asbestos Industry Regulations 1931 (‘the Regulations’) applied not only to factories manufacturing asbestos goods but to all factories and workshops carrying out certain specified processes. Further, the Regulations provided protection for all workers liable to exposure to asbestos and not only those directly involved in the specified processes.

The test for whether someone was a ‘person employed’ for the purposes of s47 (1) of the Factories Act 1937 (‘the Act’), and therefore entitled to its protection, was whether he was employed in the factory, and not whether he was employed by the occupier of the factory.

Facts: The respondent (M) had visited a power station controlled by the appellant’s (N’s) predecessor, when employed by a third party as a lorry driver in the 1950s. The power station carried out lagging work (mixing asbestos dust with water to create an insulating paste) but did not manufacture asbestos products. M contracted mesothelioma and alleged that N had breached its duties under reg.2 (a) of the Regulations and s47 (1) of the Act. The Court of Appeal ([2013] EWCA Civ 1346) had found that: (1) N had breached its duty under the Regulations. The Regulations covered certain processes including lagging, not only the manufacture of asbestos products, and they afforded protection to those exposed to asbestos even if not directly involved in the relevant process; and (2) N had not been in breach of its duty under the Act as M did not qualify as a ‘person employed’; in any case, M had failed to establish that the requisite ‘substantial amount’ of asbestos dust had been produced by the lagging work. N appealed the first finding; M cross-appealed.

Held: (Lords Reed and Neuberger dissenting on appeal, Lady Hale dissenting on cross-appeal) (1) The Regulations were clear that they covered all factories and workshops where certain processes were undertaken and were not confined to the identifiable asbestos industry. The emphasis should therefore be on the type of process and not the nature of the industry: Shell Tankers UK Ltd v Jeromson [2001] I.C.R. 1223 applied. The term ‘mixing’ in the preamble to the Regulations should not be interpreted in a narrow, technical sense but should be construed more broadly to encompass the lagging work carried out in the power station. Protection extended to all workers who were at risk of exposure and not only those directly involved in the process. The appeal was thereby dismissed.

(2) In considering whether someone was a ‘person employed’ for the purposes of s47 (1) of the Act the emphasis should be on the need for protection. The relevant test was therefore whether the person was employed in the factory, not whether he was employed by the occupier of the factory. Consequently M was a ‘person employed’ and entitled to protection under the Act even though he was not employed by N, Canadian Pacific Steamships Ltd v Bryers [1958] A.C. 485 followed. Equally, it was not relevant that M had not needed to visit the part of the power station where the lagging work was undertaken, Uddin v Associated Portland Cement Manufacturers Ltd [1965] 2 Q.B. 582 applied. However, on the facts of the instant case, the Supreme Court upheld the finding there was insufficient evidence to establish that the lagging work had produced a ‘substantial amount’ of dust, and M was therefore not in breach of its duty.

Jubair Ali (Protected Party by Jabid Ali, His Father & Litigation Friend) V (1) David Graham Caton (2) Moto Insurers’ Bureau

[2014] EWCA Civ 131

(Tomlinson LJ, McCombe LJ, Beatson LJ)

Significance: A judge was entitled, and indeed required, to take into account all the evidence before him in assessing whether a personal injury claimant suffered from a significant cognitive disability. John Leighton-Williams QC and Andrew Wille appeared for the successful claimant/respondent

Facts: The respondent (J) had suffered a severe brain injury in a road traffic accident. Several experts had treated J and all agreed that he suffered from significant cognitive disabilities. Shortly before the trial J had passed the UK Citizenship Test, which the experts all agreed was inconsistent with his apparent level of disability. J claimed that he had passed the test with unspecified improper assistance. The trial judge held that J had succeeded without improper assistance through a combination of luck and learning by rote. The trial judge awarded damages on the basis that J lacked mental capacity and had no residual earning capacity. M appealed arguing that the judge had not given the correct weight to the successful citizenship test.

Held: (1) The judge was right to consider the citizenship test in the context of the other evidence and it would have been wrong to focus almost exclusively on that one piece of evidence. J had undoubtedly suffered a severe brain injury and he was not someone who was capable of maintaining a pretence of incapacity for so long to so many people. In the circumstances the judge was entitled to find that J had passed the test unaided.

(2) Ultimately the question of capacity was a matter for the court having regard to all the evidence before it. Expert evidence, although important, was only part of the picture. Other evidence, including from those around J on how he functioned day-to-day, should also be considered. On the evidence before him the judge was entitled to find that J lacked capacity.

Altomart Ltd V Salford Estates (No.2) Ltd

[2014] EWCA Civ 1408

(Moore-Bick LJ, Ryder LJ, David Richards J)

Relevance: An application for an extension of time to serve a respondent’s notice under CPR r.3.1 (2) (a) was governed by the principles set out in Mitchell v News Group Newspapers Ltd [2013] 1 W.L.R. 795 and Denton v TH White Ltd [2014] C.P. Rep. 40.

Facts: A winding up petition brought by the appellant (S) within the context of landlord and tenant proceedings was stayed. S appealed the decision. The respondent (X), on counsel’s advice, did not initially file a respondent’s notice but, having appointed new counsel, did so over one month late, and applied for an extension of time under r.3.1(2)(a). S opposed the application, citing the approach to compliance in Mitchell and Denton.

Held: Read in conjunction with r.3.8, it was clear that r3.9 applied only to applications for relief where the sanctions were defined by the very rule, practice direction or court order that had been breached. Where it was left to the court decide what sanction to impose after a breach, an application for an extension of time fell under the auspices of r.3.1 (2) (a). On the face of it the failure to serve a respondent’s notice fell into the latter category.

However, the courts had recognised that implied sanctions could engage the approach under r.3.9: Sayers v Clarke Walker [2002] 1 W.L.R. 3095 and Robert v Momentum Services Ltd [2003] 1 W.L.R. 1577 considered. This included the implied sanction of not being able to bring an appeal in an application for permission to appeal out of time. The purpose of the application in the instant case was to rely on grounds that had not been before the court below. Preventing a respondent from pursuing the merits of its case was no less an implied sanction than preventing an appellant from bringing an appeal. The Mitchell/Denton principles should therefore apply.

In the instant case, the time lapse was deemed considerable given that 14 days was the limit for serving the notice. However, at the time that the application was made it was unlikely that the appeal would be heard for several months, and S would suffer no undue prejudice if the application were granted. In the circumstances the breach could not be considered significant or serious. In addition, X had accepted it should bear the costs of the application, and there was nothing else in its conduct of the proceedings or more generally that militated against relief. The application for an extension was granted.

Royal & Sun Alliance Insurance Plc v Fahad QBD (Spencer J)

Significance: The public interest favoured bringing committal proceedings against a person who had allegedly made false statements in a claim where there was strong prima facie evidence that the road traffic accident had been fabricated.

Facts: The respondent (F) brought a claim for damages alleging that he had suffered loss in a road traffic accident caused by the negligence of another driver whom he did not know. The court found that the accident had been fabricated, that F was in a relationship with the other driver, and that F had made false statements. The applicant applied to bring committal proceedings.

Held: A person was only guilty of contempt if it was established to the criminal standard that he had knowingly made a false statement. Committal proceedings should only be brought where it was in the public interest to do so, having regard to the strength of the evidence, the significance of the statements in the proceedings, the deterrent effect of contempt proceedings, and whether the person understood the likely effect of his statements. Claims that were entirely fraudulent were far more serious than those that were exaggerated: Liverpool Victoria Insurance Co v Bashir [2012] A.C.D. 69 applied. It was not for the instant court to make findings but where there was a strong prima facie case of an entirely fraudulent claim; the public interest not only justified bringing proceedings but demanded it.

R (On the Application of Tony Whitston, Asbestos Victims Support Groups Forum UK) (Claimant) V Secretary Of State for Justice (Defendant) & Association of British Insurers (Interested Party) [2014] EWHC 3044 (Admin) (William Davis J)

Significance: The Secretary of State for Justice had failed to comply with his statutory obligations before implementing s44 and s46 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) in respect of mesothelioma claims. The provisions prevent a successful claimant recovering success fees and insurance premiums from an unsuccessful defendant. The court is still to hear arguments on the appropriate relief but its initial view was that s44 and s46 could not be brought into force in relation to mesothelioma claims.

Facts: Pursuant to s48 of LASPO the Secretary of State could not bring s44 and s46 into force in relation to mesothelioma claims until he had held a review of the likely impact of the measures on such claims. He relied on a consultation document which contained two paragraphs describing the funding position if s46 and s48 applied to mesothelioma claims, and asked for responses on the sections’ likely impact in light of other changes proposed by the document. Having received the responses, many of which stated that the consultation did not comply with the s48 requirements, the Secretary of State dropped the other proposals in the consultation but brought the s44 and s 46 into effect in relation to mesothelioma. Judicial review proceedings were brought.

Held: S48 did not specify what type of review the Secretary of State need carry out nor did it require him to wait to assess the impact of the provisions on other personal injury claims. However, the review was required to enable the Secretary of State to review the likely impact of s44 and s46 on mesothelioma claims. He had not sought opinion on this specific point as an objective reading of the consultation document led to a conclusion that the implementation of s44 and s46 was entwined with the other proposals therein. The other proposals had been dropped so the basis for the consultation no longer applied. The court is yet to decide on the appropriate relief but its initial view is that s44 and s46 cannot be brought into force in relation to mesothelioma claims.

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Author: Helen Hobhouse Farrars (chambers@farrarsbuilding.co.uk)


Author: Joel McMillan Farrars (chambers@farrarsbuilding.co.uk)


Author: Nigel Spencer Ley Farrars (nsley@farrarsbuilding.co.uk)


Author: Robert Golin Farrars (chambers@farrarsbuilding.co.uk)