Barlow Lyde _ Gilbert ALARM SOUTHEAST CONFERENCE 1-2 by jianghongl


									                 Barlow Lyde & Gilbert

           1-2 November 2006

  Judgment Day - A Legal Update

   Name         Direct Tel     Direct Fax            Email
John Goodman   0207 643 8467   0207 071 9413

David Knapp    0207 643 8572   0207 071 9415

 Hazel James   0207 643 7361   0207 071 9428
                                       Contents Page
                                                       Page No.

1.       Employers’ Liability Cases                     2

        Bullying/Harassment at Work
        Vicarious Liability
        Risk Assessments
        Work Equipment Regulations

2.       Occupiers’ Liability Cases                     6

        The 1957 Act
        The 1984 Act

3.       Highway Cases                                  9

        Flooding
        Bollards
        Inspection Covers

4.       Miscellaneous Cases/Developments               14

        Animals Act 1971
        Fatal Accidents Act claims
        Contribution Proceedings
        Compensation Act
        Part 36 changes
        Medical records - relying on them at Trial
        Resiling from Admissions
        Limitation
        Costs/CFAs
        Costs: the effect of exaggerated schedules

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                          1.        Employers’ Liability Cases

Bullying/Harassment/Stress at Work

Majrowksi -v- Guys & St Thomas’ NHS Trust, House of Lords, 2006

This is potentially a very significant case with regards to claims for bullying at work.

The Protection from Harassment Act 1997 was passed to deal with the problem of
stalking. It is now being used in Employers’ liability claims!

Section 3 of the 1997 Act gives the victim of harassment an entitlement of damages
for any loss or damage sustained. The issue which went up to the House of Lords was
whether an employer could be vicariously liable under the Act for harassment
committed by an employee in the course of his employment.

The House of Lords held that ordinary principles of causation and mitigation and the
like apply, so a Claimant can rely upon this Act for general damages and any financial
loss resulting from the harassment. Surprisingly, the Act allows for damages even if
there is no recognised psychiatric injury - mere anxiety/upset is sufficient.

So what is “harassment”? The Act unhelpfully does not define it. However, note the
2001 case of Thomas -v- Newsgroup Newspapers, Court of Appeal. For action to
constitute harassment within the meaning of the Act, there must have been conduct:-

1        Occurring on at least two occasions;

2        Specifically targeted at the Claimant;

3        Calculated in an objective sense to cause distress; and

4        Objectively judged to be oppressive and unreasonable.

So it is not sufficient for an employee to feel that they are being harassed by a fellow
employee - that must be true in an objective sense.

A 6 year limitation period is provided for in the Act.

Note that there is no statutory defence to this new cause of action. Once harassment is
proven, the Claimant has a right to damages, so the key issue is whether there was
objectively harassment, whether it occurred on at least two occasions, and whether it
caused upset/psychiatric injury.

Note that if there is no psychiatric injury then there may be no requirement to cover a
claim under your policy.

Sayers -v- Cambridge County Council, High Court, 2006

Another stress claim. Of note is the finding that a breach of the Working Time
Regulations could, in theory, form the basis of a claim. But the Judge was dubious

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about this - how could a few extra hours above the maximum permitted 48 hours per
week really have caused the breakdown. Plus of course there is the right to opt out.

Pakenham-Walsh -v- Connell Residential, Court of Appeal, 2006

A case which emphasises the difficulty of winning stress claims for Claimants - or
perhaps merely that even Judges are not immune to a dislike of estate agents!

The Claimant was an estate agent who claimed damages for psychiatric injury for
overwork and bullying by her manager. However she was experiencing a number of
non-work stresses at the relevant time.

The Court of Appeal upheld the dismissal of her claim on the grounds that she did not
overcome the foreseeability threshold. She had had no time off work, had made no
complaints and the allegations had formed no part of an Employment Tribunal claim
which arose out of the same issues. The Court emphasized the importance of
distinguishing between mere stress and actual signs of impending harm to health.

Another case where the Court commented on the working time regulations 1998 - the
Court of Appeal suggested that a failure by an employer to comply with the
regulations was a plus point in favour of the claim, but that was not sufficient for the
Claimant to win.


Vicarious Liability

Hawley -v- Luminar Leisure Ltd, Court of Appeal, 2006

The Defendant operated a nightclub and contracted with a supplier to provide various
security services including doormen. One of these doormen assaulted a member of
the public and was convicted of causing GBH. The member of the public sued the
nightclub on the basis that the nightclub was the temporary deemed employer and
therefore vicariously liable for the doorman’s action.

The Court of Appeal held that the crucial issue was whether the nightclub had
sufficient control of the doorman and it found that it did exercise detailed control, not
only over what the doorman did but how he did it.

So it is crucial in each case to investigate the nature of the contractual relationship, the
extent of any instruction provided by the Insured to the possible employee and the
extent of any supervision by the Insured. Check also the arrangements there are for
dealing with disciplinary issues or other problems - was it expected that the Insured
would deal with them or would matters go back to the supplier of the individual?

Risk Assessments

Brown -v- Grosvenor Building Contractors, Court of Appeal, 2006

The Claimant’s job was to clear empty properties on housing estates. He came upon a
fire in the garden of one property. He kicked it to put it out but unfortunately there

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was an aerosol in the fire which exploded and injured his face and eye. He sued his
employer for failing to carrying out a risk assessment or failing to provide proper
training in relation to how to deal with fires.

The Trial Judge dismissed the claim on the basis that fire and explosions were not
things which the employer should have predicted or guarded against and a risk
assessment would not have covered the type of injuries sustained.

The Court of Appeal upheld the dismissal. The main question was whether there was
an appreciable risk of harm. When considering the issue of reasonable practicability,
the gravity of the risk had to be assessed and balanced against the cost of offsetting
the risk, and on that basis the Judge was right to dismiss the claim.

Work Equipment Regulations

Reid -v- PRP, Court of Appeal, 2006

Precious Reid was leaving work at the end of the day. She used a lift in the office
building where she worked. The door closing mechanism was defective and the door
closed on her hand, injuring it. The lift was outside the Defendant’s premises - it was
in the common part of the building and not owned or maintained by it.

The Trial Judge accepted that the lift had been provided for the Claimant’s use by the
Defendant at work, that it was work equipment under regulation 2(1) of the Work
Equipment Regs and that the lift was defective so there was a breach of regulation
5(1). The Judge accepted that the Claimant was in the course of her employment,
although that was not strictly necessary under the regs.

The Defendant appealed on the basis that the lift was not an installation for use at
work within the meaning of the regulations and not therefore work equipment. Nor
was the lift provided for use by an employee, nor used by an employee at work within
the meaning of regulation 3(2).

The Court of Appeal held that the expression “work equipment” should be given a
broad construction and “installation” was capable of covering a lift in a building. The
Defendant had not disputed before the Trial Judge that the lift was work equipment
and so was precluded from arguing that point on Appeal (an important issue to note in
its own right).

The remaining issue was whether the equipment was being used “at work”. The
Court of Appeal held that whilst the lift was the property of the third party, it was a
facility used in the course of work. Therefore when leaving work at the end of the
day and using a lift located in the lobby of the building where she worked, the
Claimant was using it “at work” within the meaning of reg 3(2). It would not be right
to draw a line when the Claimant left her own office to enter the lift or when the lift
left the floor where her office was located in the building.

The Defendant’s appeal was therefore dismissed.

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                          2.        Occupiers’ Liability Cases
The last 12 months have seen three further Court of Appeal decisions which reinforce
the difficulties facing Claimants in establishing claims under the Occupiers Liability
Acts 1957 and 1984 even when the most catastrophic of injuries are sustained. This
can be contrasted to the creeping strict liability approach often adopted by the Courts
when interpreting EL Regulations.

Christian Lewis –v – Six Continents Plc, Court of Appeal, 2005

The Claimant fell from a second floor hotel bedroom window after leaning out of it.
He suffered severe head injuries. The Claimant had been drinking that evening but
was found by the trial Judge to be ‘not particularly drunk.’ He had no recollection of
how he had fallen.

His claim was originally brought under the Occupiers Liability Act 1957, the
Workplace Regulations 1992 and the 1991 Building Regulations. The Claimant was
forced to abandon all but the Occupiers Liability Act. It was argued on his behalf that
any window above ground level through which someone could fall should have bars
or limiters. The Judge rejected that submission on the basis that the consequences of
it were ‘that virtually every window in every building in the land would have to be
adapted and that was not a reasonable precaution to be imposed on householders or

Whilst the Court of Appeal held that the Judge had approached the case asking the
wrong question they ultimately upheld the decision and confirmed that there was no
liability on the part of the occupier. Lord Justice Ward held that the question to ask
was whether the window was unsafe for anyone? The window did not present any
obvious danger to an adult. No accident had ever previously occurred and it was not
therefore reasonably foreseeable that an adult would lean out of the window in such a
way as to say the occupier should have limited the way the window opened.

Maloney – v – Torfaen County Borough Council, Court of Appeal, 2005

This is a useful decision in clarifying the nature and extent of an occupier’s
obligations under the 1984 Occupiers Liability Act. The Act provides for a more
limited duty of care owed to trespassers.

In the course of taking a shortcut to the entrance of his flat from a nearby road the
Claimant slipped or stumbled over an unfenced retaining wall and fell from a sloping
grass bank onto the concrete floor of a pedestrian subway. The Claimant was drunk at
the time of the accident. He sustained a head injury and would not work again – he
was 33 at the date of the accident. There had been two previous incidents involving
people falling down the slope. There had been an incident less than one month prior
to the Claimant’s accident where the injured party had suffered a fatal fall.

The Judge at first instance held that there was no express or implied permission for
the Claimant to use the grass area as a footpath. The Claimant was therefore not a
lawful visitor so far as the area was concerned and accordingly the Defendant
occupier had not owed him a duty of care pursuant to the Occupier’s Liability Act

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1957. That finding was upheld in the Court of Appeal who accepted that the Claimant
was not a visitor within the meaning of the 1957 Act. Lord Justice Laws referred to
Lord Hoffman’s Judgment in Tomlinson in which he referred to a 1927 decision in
which the court had quipped:-

‘When you invite a person into your house to use the staircase you do not invite him to
slide down the banisters.’

The Claimant failed despite the fact that employees of the Defendant accepted that if
they had known of the previous fatality they would have arranged for fencing to be set
up and that they could have done so before the date of the Claimant’s accident. The
Court of Appeal upheld the Judge’s finding that the Defendant had no reasonable
grounds to believe that the Claimant might have come into the vicinity of the danger
within the meaning of Section 1(3)(b) of the 1984 Act. The Court held that the danger
was not so obvious, save for the case of a drunk man walking close to the edge at
night, or in some other particular situation where the risk was heightened.

Keown – v – Coventry Health Care NHS Trust, Court of Appeal, 2006

This case is interesting on 2 fronts. Firstly it suggests that even infant, Claimants will
be caught by the more rigorous approach to liability in OL cases post Tomlinson.
Secondly it acts as a reminder (if one were needed) of the need to look carefully at
whether an accident is caused by a danger on the premises or, in fact, due to the
Claimants choice to indulge in a dangerous activity.

The Claimant was an eleven year old child who sustained a head injury when he fell
about 30 feet from a fire escape on the outside of the Defendant’s premises. The fire
escape went to the top (third) floor of the building. It was in part of the hospital
grounds that were used by the public as a means of going between the streets on either

The Claimant succeeded at first instance on the basis that the danger was due to the
state of the premises in accordance with Section 1(1)(a) of the Occupiers Liability Act
1984. The Claimant was found two-thirds responsible for what happened.

The Defendant occupier appealed on the basis that the fire escape was not itself
dangerous and that any danger was due to the Claimant’s activity on the premises and
not the state of the premises.

The Court of Appeal overturned the decision at first instance. The Court held that it
would not be right to ignore a child’s choice to indulge in a dangerous activity in
every case merely because he was a child. Here the Claimant did recognise the
danger of climbing on the fire escape. The Judge had found that the Claimant not
only appreciated that there was a risk of falling but also that what he was doing was
dangerous and that he should not have been climbing the exterior of the fire escape.
In the circumstances it could not be said that the Claimant did not recognise the
danger. The risk arose out of what he chose to do rather than out of the state of the
premises. Therefore he had not suffered injury by reason of any danger due to the
state of the premises and did not pass the threshold requirement in Section 1(1)(a) of
the 1984 Act.

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The Court of Appeal reinforced the need for a Claimant to meet all 3 subsections of
section 1 (1) of the 1984 Act to establish a claim.

In this case if there could be said to have been a risk by reason of a danger due to the
state of the premises and the risk could be said to have arisen because the fire escape
was unguarded or unfenced, then the Claimant could have brought himself within the
ambit of subsection (a) because the Trust knew that the fire escape was unguarded and
unfenced. He could also have brought himself within subsection (b) of the Act
because the Trust knew that children played in the vicinity of the unguarded or
unfenced fire escape. It was doubtful however whether the Claimant could have
brought himself within the requirements of subsection 1(3)(c) because it would not be
reasonable to expect the Trust to offer protection from such a risk.

And now for something less helpful….

Clapton -v- Cato, Colchester County Court, 2005

The Claimant was delivering newsletters. He delivered a newsletter to the
Defendant’s house through the Defendant’s letterbox.

The letterbox had a spring loaded flap that had to be pushed open for the purposes of
mail delivery. Inside the house and beyond the flap there was a narrow edge with a
lip. Whilst delivering the newspaper the weight of the flap and the right angle lip of
the ledge combined to sever the tip of the Claimant’s finger. The amputated fingertip
was successfully reattached. The Claimant bought a claim under the Occupier
Liability Act 1957 on the basis that the letterbox constituted a danger. The Defendant
maintained that the letterbox was of a common design and manufacture and that it had
never occurred to him that it might be dangerous.

The Judge found in favour of the Claimant. Whilst the letterbox was of a common
kind it was dangerous and presented a trap for the unwary. The fact that there were
many letterboxes of a similar type did not absolve the Defendant from liability under
the Act.

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                                     3.    Highway Cases

Flooding: Local Authority Duty

Department for Transport – v – Amey Mouchel Limited and Others, Court of
Appeal, 2006

This is a case in which BLG represented Amy Mouchel Limited. Whilst the case
addresses issues arising out of the nature and extent of a Highway Authority’s duty to
maintain the highway under Section 41 of the Highways Act 1980, the decision can
have general application in relation to cases arising out of accidents on the highway
where there are allegations of flood water being present.

The claim was a claim for indemnity by the Department for Transport which had
already settled three underlying injury claims in relation to accidents which had
occurred on two separate allegedly flooded roads. The underlying injured Claimants
contended that there was a history of flooding on the roads and that the Local
Authorities were therefore in breach of their repairing obligations under Section 41.
The Department for Transport settled the cases and then sought indemnity/
contribution from Amy Mouchel and Mott MacDonald Limited who were the
maintaining agents for the highway in question.

On a preliminary issue the Judge at first instance held as a matter of law that a
Highway Authority’s duty to maintain the highway did not include the keeping of
relevant drains clear. Thus the claim for indemnity failed.

The Department for Transport appealed successfully the Court of Appeal which
overturned the decision at first instance. The Defendants have lodged a petition to the
House of Lords seeking permission to appeal that decision which remains

In the absence of the House of Lords overturning the Court of Appeal decision there
remains scope for potentially arguing that a Highway Authority is in breach of its
duties under Section 41 in cases where a vehicle loses control as a result of water on
the highway where that water is found to have collected as a result of a failure to
maintain. It will not be possible for every case to be brought within the ambit of
section 41. The Claimant (or indeed a Defendant who contends that flooding had
played a part in his or her loss of control) will need to demonstrate that the flooding
was more than a transient hazard and that it was caused by a failure to maintain the
drainage system.

The Highway Authority may also be able to rely upon the statutory Defence under
Section 58 of the 1980 Act, namely that it had a reasonable system of inspection and


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Shine -v- Tower Hamlets London Borough Council, Court of Appeal 09/06/2006

The Facts

The Claimant, a 9 year old boy, was injured whilst leapfrogging over bollards on the
footway. The local authority’s highway inspector conceded in evidence that the
bollard had been identified prior to the accident as being in a loose state and that she
had set in place the normal procedures for repairing it to ensure that it was securely
attached to the floor. This had not happened by the time of the accident.

The claim was brought in negligence and as a breach of statutory duty under the
Highways Act 1980. Two possible sections were relied upon from the 1980 Act. The
first was Section 41 and the second was Section 66 which creates a statutory power
for Highway authorities to provide and maintain the highway by providing fences,
bollards etc.

The Claimant tried to argue that the defect under Section 41 was the existence of the
insufficient hole in the highway into which the bollard had been placed and which
caused the bollard to be insecure. The Claimant succeeded on the breach of statutory
duty point at first instance and the local authority appealed.

The Court of Appeal

Lord Justice Buxton criticised the artificial nature of the Claimant’s case under
section 41. He described it as ‘highly artificial’. The complaint was that the bollard
was insecure. That is a complaint about the street furniture. It is not a complaint
about the nature of the highway. Thus Section 41 did not apply.

Section 66 is a statutory power and not a statutory duty. It does not create grounds for
any liability in the case of injury emanating from any barrier or fence. Thus the
Claimant was left with arguing the Claimant in negligence. He succeeded. The Court
of Appeal accepted that it was foreseeable that a child would leapfrog a bollard. It
had been established that the bollard was insecure and the local authority had known
that. Thus they were in breach and that breach caused the Claimant’s injuries.

Public Policy

The Local Authority tried to argue that there was a public policy justification for not
extending liability in negligence to the scenario. It was contended that it would place
an undue and unreasonable burden on the Local Authority if it was going to be liable
in those circumstances. The Court of Appeal gave short shrift to that argument. The
highways inspector had conceded that the bollard was to be repaired. Thus there was
no additional cost or burden.

The Local Authority also contended that where there is statutory obligation on a party,
that takes up the whole of the party’s obligation and there is no room for the
introduction of the law of negligence to fill a gap or supplement the statutory duty.

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Given that the Court of Appeal had concluded that Section 41 did not apply that
argument was also given short shrift and the Claimant was successful.

House of Lords?

The Defendants in the Shine case have petitioned the House of Lords for permission
to appeal the Court of Appeal decision. Should permission be granted it is possible
that the House of Lords will deal with the appeal in Shine and the appeal in the DoT
case at the same time. Both raise issues in relation to the highway. No case in
negligence was argued in the DoT case but there is obvious potential for cross over
when looking at the approaches taken by the two Court of Appeals in relation to
interpretation of Section 41 and the duty -v- power point.


Public Utility Manhole Covers – A Trap and Not a Trip

Atkins -v- London Borough of Ealing

The Facts

The Claimant on 3 December 2003 suffered personal injuries when she was walking
down Crown Street in Acton and stepped on a manhole cover which tilted, causing
her foot to fall into the manhole. She suffered injury to her ankle. Damages were
agreed in the sum of £2,750, this being a fast track case.

The County Court Judge held that by reason of the tendency of the manhole cover to
tilt the highway was dangerous such that the Defendant had failed to maintain the
highway pursuant to Section 41 of the 1980 Highways Act. More pertinently
however, the County Court Judge held that the Defendant had not proved that it had
taken such care as in all the circumstances was reasonably required to ensure that the
manhole cover was not dangerous and therefore the Section 58 Defence was made

This was despite the fact that the Local Authority operated an effective system of
inspecting the highways on foot once a month looking for defects, namely a trip or a
difference in height between two adjacent surfaces of the highway of more than

The County Court Judge considered that a reasonable system of inspection required
the Defendant to physically inspect manhole covers to check that they were secure
and not liable to tilt. The Local Authority system of inspection did not attempt to
check whether the public utility manhole covers were secure.

The County Court Judgment was appealed to the High Court and specifically Mr
Justice Teare.

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The Judgment of Mr Justice Teare

A number of arguments were raised on appeal, the most relevant for the purposes of
this paper was that the Judge applied far too high a standard and had placed too high a
burden on the Defendant, namely expecting the Highways Inspector to physically
inspect each and every inspection cover in a busy shopping street. The case of Mills -
v- Barnsley MBC was specifically referred to and two County Court decisions.

Mr Justice Teare noted that the company to whom responsibility for inspections was
delegated had, through a Mr Barrett, given evidence at the County Court trial. Mr
Barrett had conceded that the consequences could be “rather catastrophic” if a
manhole cover tipped. Mr Justice Teare considered this to be important in a shopping
street where it could be reasonably expected that many pedestrians would use the

The High Court Judge went on to say that the standard of maintenance appropriate for
a manhole cover on a pavement in a shopping street (my emphasis added) is a
standard which ensures, so far as is reasonably practicable, that pedestrians are not at
risk of falling into a hole. The Judge stated that a pedestrian would not expect a cover
when stood on to tilt.

The Judge accepted that there was no evidence that the Defendant knew that this
manhole was loose and liable to tilt but stated that there was no evidence adduced by
the Defendant that tilting covers were so rare that they could not be foreseen.

In summary the Judge held that the Local Authority did not consider the prospect of
manhole covers tipping sufficiently and concentrated overly on tripping hazards.


Neither the County Court Judge nor the High Court Judge appears to have appreciated
the reality of conducting highways inspections along busy shopping areas. The reality
is that with the profusion of apparatus and pipe work under the shopping areas there
are an ever increasing number of stopcock covers, manhole covers and cable covers
along the footways of shopping areas. It is quite impossible for each and every cover
to be tested rigorously in the course of an inspection.

Unfortunately, it would now appear that in cases involving titling inspection covers
and manholes there is now no alternative but for statements from Highways
Inspectors to state the following:-

1        It is impractical to check each and every cover;

2        The reason why it is impractical (volume of pedestrian traffic/resources etc);

3        There is no history of problems with covers in that road;

4        The Highways’ budget is limited and resources for inspection have to be

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5        The majority of problems with covers occur through neglect by the relevant
         public utility or as a result of reinstatement works by that utility or another

It is also anticipated that the Court of Appeal may be asked to rule on this question
generally, the economics of this particular case militated against an appeal. In the
interim it is submitted that a Witness Statement dealing with the issues numbered
above should suffice.

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                  4.        Miscellaneous Cases/Developments
Animals Act 1971

Clark -v- Bowlt, Court of Appeal, 2006

Quite a useful case on the Animals Act.

The Claimant was driving in Northumberland and slowed to about 35mph because he
was approaching a junction. He then saw about 50 yards ahead, two horses being
ridden on a narrow grass verge on his near side, proceeding in the same direction as
he was. The Defendant was riding one of those horses. He slowed further to about
15mph. There was no indication of anything untoward so he passed the horses but as
he did so, the Defendant’s horse moved into the road, in a movement that could not be
controlled by the Defendant, and the horse hit the front nearside of the car.

The Trial Judge allowed the claim under section 2 Animals Act on the following

1        If damaged was caused by the horse then it was likely to be severe given that
         the horse was a heavy animal and the horse was in close proximity to an A
         road with a 60mph speed limit, so if the horse decided to move into the path of
         a car, the damage was likely to be severe. This satisfied section 2(2)(a).

2        With regard to section 2(2)(b), this was also satisfied because at particular
         times and in particular circumstances horses can assert an inclination to move
         otherwise then as directed (as did this horse). It is not normal for a horse to
         move into the path of a moving car, but it may do so at particular times and in
         particular circumstances. So the horse had a characteristic which could and
         did lead her to move near to a moving car. This was a characteristic which
         would only raise at particular times and in particular circumstances, and it
         arose on the relevant occasion and caused the accident.

3        Finally, the question of knowledge (section 2(2)(c)). The Defendant admitted
         that she had knowledge of this sort of characteristic so there was no issue here.

At first blush this sounds plausible but the Judge got it completely wrong. The Court
of Appeal rather graciously said that in this rather difficult area of the law the Judge
has got himself in a muddle.

The Court of Appeal accepted the Judge’s findings that if the horse caused damage it
was likely to be severe - because it was a heavy animal.

But the Court pointed out that under section 2(2)(b) the likelihood of the damage
being severe must be due to characteristics of the animal not normally found in
animals of the same species, or due to characteristics only found at particular times or
in particular circumstances. Here, the characteristic which triggered the likelihood of
severity was the weight of the animal. But the horse’s weight was a normal
characteristic so requirement (b) was not satisfied.

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This was the same point as made in Mirvahedy - if a cow happens to stumble on to
someone the damaged suffered will be severe but the cow’s dangerousness does not
satisfy requirement (b). The dangerousness is due to a characteristic normally found
in all cows at all times - its very size and weight.

Then when the Trial Judge came to consider Part (b), he identified the relevant
characteristic not as the weight but as the propensity of the horse “in particular times
and in particular circumstances” to “assert an inclination to move other than as
directed”. In other words he switched characteristics! When considering Part (a), the
characteristic was the weight of the horse - making it likely that any damage would be
serve. But when considering Part (b)- the characteristic became the propensity to
move, otherwise than as directed.

So the Judge failed to realise that the two parts are linked - the characteristic which
satisfies Part (b) must be the one which makes the damage likely, or likely to be

On top of this mistake, the Court of Appeal doubted whether a propensity
occasionally to move otherwise than as directed, could properly be described as a
characteristic of an animal. Nor did they think that it was a characteristic not
normally found in horses, except at particular times and in particular circumstances.,
because the Judge failed to identify either the particular times or the particular
circumstances when the characteristic manifested itself. Indeed saying this was a
characteristic with horses generally comes close to accepting that it was actually a
normal characteristic of the horse to do such a thing.

The Court of Appeal held that the accident was an unlikely mischance for which no
one was to blame and which attracted no liability under Section 2.

This is a useful case in that it emphasises that section 2(2)(a) and section 2(2)(b) are
linked requirements. It also stresses the need for the Claimant to prove what was
particular about the times or circumstances in which the relevant characteristics was
displayed. In that sense it is a welcome development from Mirvahedy which rather
suggests that there will be particularity to the circumstances of just about any

Fatal Accidents Act Claims

Note that under section 83 Civil Partnerships Act 2004 the Fatal Accidents Act has
now been amended so that civil partners can also now be dependants.

Fatal Accidents Act - Claim for Suicide

Corr -v- IBC Vehicles Ltd, Court of Appeal, 2006

The Claimant was badly injured in a factory accident for which liability was admitted.

He suffered PTSD and depression and 6 years later he committed suicide. His wife
brought a claim against the former employers for a dependency under the Fatal
Accidents Act. At first instance the claim was dismissed as it was not reasonably

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The Court of Appeal allowed the widow’s Appeal. It held that the suicide did not
break the chain of causation - the suicide was a consequence of the original
negligence. It did not need to be established that suicide was reasonably foreseeable
at the time of the accident as a kind of damage which is separate from any other kind
of personal injury. A suicide simply flowed from a condition for whichh the
Defendant was responsible by reference to the normal foreseeability criteria.

Contribution Proceedings

The limitation period for a contribution claim is 2 years from the date on which the
person seeking contribution is held liable by a Judgment.

But what does “Judgment” mean? Does that mean a Judgment on liability for
damages to be assessed or do damages actually have to have been decided?

Aer Lingus -v- Gildacroft, Court of Appeal, 2006 decided the point. A mere Judgment
on liability for damages to be assessment does not start the clock running. It is a
Judgment or award which fixes quantum, which triggers the running of time.

Compensation Act

The Act received royal assent on 25 July 2006.

The Act is a mixed bag of provisions as follows:-

Compensation Culture - “desirable activities”

A Court considering a claim in negligence or breach of statutory duty may, in
determining whether the Defendant should have taken particular steps to meet a
standard of care (whether by taking precautions against a risk or otherwise) have
regard to whether a requirement to take those steps might:-

(a)      Prevent a desirable activity from being undertaken at all to a particular extent
         or in a particular way;

(b)      Discourage persons from undertaking functions in connection with a desirable

This provision simply puts into statutory form an important aspect of the landmark
Judgment of Tomlinson -v- Congleton Borough Council, House of Lords, 2003.

In Tomlinson the Claimant injured himself diving into a boating lake where
swimming had been prohibited and where the only real way of preventing
diving/swimming would be to cordon off the whole lake.

This provision is frankly virtually a waste of time. Firstly, what is wrong with the
House of Lords authority? Secondly, note the word “may” - Courts do not need to
have regard to the fact that the activity was desirable at all.

Indeed the very recent case of Spowart v Nottinghamshire County Council,
Nottingham County Court, 2006 involving a child using a swing where the teacher

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momentarily looked away and where the Circuit Judge upheld the claim, shows just
how toothless this section is.



An apology, an offer of treatment or other redress, shall not of itself amount to an
admission of negligence or breach of statutory duty.

This section is also a waste of time - apologies never did amount to admissions!

Mesothelioma Cases

This section is at least of some use, even if it moves the pendulum back towards
Claimants in mesothelioma cases. It makes Defendants jointly and severally liable in
these cases. It means that the Claimant can sue only the last Insurer standing, in a
disease case, and still win 100% damages.

This is a direct response to the decision in Barker -v- Corus, House of Lords, 2006,
which held that damages should be apportioned in such cases so that the Claimants
would need to sue all Insurers for the entire period of exposure to obtain 100%
damages. They no longer need to do so thanks to the intervention of Parliament.

Part 36 Changes

There is to be a new Part 36.

The DCA has now published the results of its consultation paper and it seems that the
new rule will recognise the principles set out in Stokes Pension Fund -v- Western
Power Distribution, Court of Appeal, 2005. A Defendant good for the money need
not make a payment in. Defendants backed by Insurers will, under the proposed new
rules, be deemed good for the money.

It also seems that the new rule will address the anomaly that under the present rule if a
Claimant beats his own Part 36 offer then the Court can award indemnity costs against
the Defendant, but if a Claimant fails to beat the Defendant’s Part 36 offer or
payment, only standard costs are to be paid. It is intended to change this to indemnity
costs thus putting more pressure on Claimants when Defendants make Part 36 offers
or payments.

A further change may be to deal with the situation of a Judgment which exactly equals
a Part 36 offer made by a Claimant. At present, if the Judgment is exactly the same,
then the Claimant has failed to beat his own Part 36 offer, so the Claimant is not
eligible for Part 36 rewards. Following comments on the consultation, under the new
rule it is anticipated that he may be.

The responses received are currently being considered by the CPR Committee, who
are due to make any changes in December. It is anticipated that the changes should
come into force in April 2007.

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Medical Records - Relying on them at Trial

Fifield -v- Denton Hall, Court of Appeal, 2006

This was a claim by an employee of the well known law firm, Denton Hall, which has
been widely discussed and probably relished in legal circles since the Judgment
severely criticises the Defendant law firm!

But the case is also important in respect of the proper use of medical records when a
Claimant is cross examined.

What happens if a party wishes to challenge a factually pleaded case on the basis of
medical records? (For example, a back injury case where the Defendant alleges that
the records show that the Claimant was complaining of back pain one month before
the accident).

The Court of Appeal set out the procedure to be followed:-

1        A party who seeks to contradict a factually pleaded case on the basis of
         medical records should indicate that intention in advance, either by amending
         his pleadings or by informal notice.

2        The other party should then indicate the extent to which he takes objection to
         the accuracy of the records.

3        A decision then needs to be taken as to how the records should be proven -
         whether by Civil Evidence Act Notice or by even calling the Doctor in

A party which fails to take these precautions runs the risk of the Trial Judge refusing
to allow them to refer to the records in order to contradict the other party’s evidence.

Alternatively, if such a precaution is taken and the other party unreasonably fails to
admit that such statements were made and it becomes necessary to call busy doctors
to Court simply to formally prove them, then such failure of cooperation is likely to
be penalised severely in costs.

So let us say there is an entry in the Accident & Emergency notes which we wish to
rely on. Unless prior notice is given, the Defendant may not be able to use such notes
at Trial to contradict the Claimant’s case.

This seems to be a painfully cumbersome procedure, especially in low value claims
and whether such a requirement is really required in such cases remains to be seen.
Certainly however it is important to write to the other side putting them on notice of
the relevant entries.

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Resiling from Admissions

Sowerby -v- Chalton, Court of Appeal, 2005

This was a claim for catastrophic injuries following a fall down some steps which
contained a handrail on the left but which were open on the right. In a pre-action
letter the Defendant’s solicitors made an admission of primary liability, but when
proceedings were issued the Defendant withdrew the admission and placed liability in
dispute. The Claimant had the Defence struck out insofar as it contested primary

The Court of Appeal actually held that the Claimant would clearly win and therefore
Summary Judgment should be entered on primary liability.

However it made some important findings with regards to admissions generally.

In exercising its discretion as to whether to allow a Defendant to withdraw an
admission, the Court would consider all the circumstances of the case and seek to give
effect to the overriding objective. Amongst the matters to be considered would be:-

        The reasons and justifications for the Application to resile which had to be
         made in good faith.

        The balance of prejudice to the parties.

        Whether any party has been the author of any prejudice he might suffer.

        The prospects of success of the issue arising from the withdrawal of the

        The public interest in avoiding satellite litigation, disproportionate use of
         Court resources and “strategic manoeuvring”.

        The nearer the Application to resile was to a final Hearing, the less chance of
         success it should have.

This case was followed by Stoke on Trent City Council -v- Walley, Court of Appeal,
2006. In that case there was a pre-action admission by a loss adjuster. The employee
who had made the admission was subsequently dismissed as his work was
unsatisfactory. The Court of Appeal held that (1) the withdrawal of an admission
would only usually be an abuse of process if the Defendant had acted in bad faith; (2)
the Claimant must show that he would suffer real prejudice from the withdrawal.
Accordingly, the admission was not binding.

The overall tenor of these two cases is now that pre-action admissions are not binding.
That is probably even the case with fast track claims. It means that a Defendant may
admit liability and then years later when proceedings are issued, may place liability in
issue even though the Claimant has carried out no liability investigation and may be
severely prejudiced by the withdrawal of the admission. This does now make it quite
risky for Claimants to rely on pre-action admissions.

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There is one exception to all of this. If liability is apportioned - for example an 80/20
deal with 20% being contrib. - then this is a binding agreement where consideration
has been given and a contract forms which cannot be undone. This is the case even if
the agreement is 99%/1% since consideration need not be substantial to be effective!


Horton -v- Sadler, House of Lords, 2006

This case deals with the perhaps rare scenario of a Claimant issuing the same claim a
second time outside the limitation period and then seeking discretion to proceed.

Well established case law (Walkley -v- Precision Forgings, House of Lords, 1979)
held that a Claimant is not allowed to do this.

In this new case, the House of Lords has overturned Walkley.

Whilst there is now therefore no absolute bar to a Claimant issuing a second claim out
of the limitation period, this case should not be taken as an automatic green light for
Claimants to do so. It is simply that the Court now has discretion to allow the
Claimant to issue a second set of proceedings outside of the limitation period. That
means Defendants can still argue that it is an abuse of process - for example if there is
no good reason for the first claim not being proceeded with.

Haward -v- Fawcetts, House of Lords, 2006

This case dealt with the requirements of actual knowledge in section 14(a) Limitation
Act 1980.

Of particular note for general personal injury cases is the confirmation from the House
of Lords that the knowledge required on the part of the Claimant to start the clock
running is broad knowledge that it was possible to attribute damage to the matters
complained of with sufficient confidence to justify embarking on pre-action
preliminary steps. Time started to run against the Claimant when he knew enough for
it to be reasonable for him to embark on preliminary investigations into the possibility
that the damage/loss suffered was caused by acts or omissions which were possibly

Also of interest is a theme running through the Judgment that limitation periods
wherever possible should be shortened rather than extended.

Costs/Conditional Fee Agreements

There are a number of recent decisions in this area but the most important point to be
clear about is that the entire legal industry of challenges to CFAs on technical grounds
will fairly soon be a thing of the past. Under the new CFA Regulations in force from
1 November 2005, there is no scope for such technical challenges. The regulations
have been drastically simplified. They now, in essence, simply state:-

1        There must be a written agreement.

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2        The maximum success fee is 100%.

All other matters, such as what pre-agreement enquiries the Claimant’s solicitors have
to make, have been hived off to the rules governing the relationship between a
solicitor and his or her own client - governed by the Law Society. This is of course all
faintly ridiculous since let us say a Claimant’s solicitor fails to make appropriate
enquiries about before the event insurance - what possible incentive does a Claimant
have to complain since he will not be paying the bill anyway!

The following are important cases for the future since they do not relate to technical
challenges under the old regulations.

U -v- Liverpool City Council, Court of Appeal, 2005

A reasonable success fee cannot be reduced by the Court. So if the Claimant agrees
with his solicitor to a 100% success fee at the outset, the Defendant cannot argue that
the success fee should be reduced to reflect the fact that liability was admitted half
way through the claim.

There is an impending challenge to this principle. The Defendants in Campbell -v-
MGN Ltd are seeking leave to challenge the finding in the House of Lords. In that
case the Claimants are seeking a 100% success fee for a costs assessment, simply
reflecting the fact that the success fee at the outset was 100%. The Defendants are
arguing this must be wrong. If the Lords agree then that might provide Defendants
with a foot in the door to attack this absurd state of affairs.

Rogers -v- Merthyr Tydfil County Borough Council, Court of Appeal, 2006.

If a party has a staged premium then it must inform the other side of the fact and
should set out accurately the trigger moments at which the second or later stages will
be reached.

Another useful and little known case:

Henry -v- BBC, High Court, 2006

An ATE policy should be disclosed promptly to the other side. Following this case
Defendants now have the right to receive a copy of the actual insurance policy so that
they know the extent of cover for costs which a Claimant has.

With regard to the old regulations, for agreements before 1 November 2005, note the

Myatt v National Coal Board, Court of Appeal, 2006

What amounts to reasonable enquiry into the availability of possible pre-existing
insurance that might fund a claim as an alternative to a CFA? Has the Court now
given clear guidance to assist both Claimant solicitors to know what to do when they
take on a client and Defendant solicitors to know whether they have done enough?

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Unfortunately the answer is no. In that case the Court of Appeal found that copy
policies held by the Claimant together with any policies held by his spouse or partner
should have been inspected. But the guidance set out in the case is frankly hopeless in
terms of providing a clear framework. Some of the factors to take into account were:-

        The nature of the client

        Does he have a real knowledge and understanding of insurance matters?

        The circumstances in which the Claimant’s solicitor is instructed

        The nature of the claim

        The cost of the premium

        Whether any referring body already investigated the question of BTE before
         passing the claim to the Claimant’s solicitors

So unfortunately the Court declined the opportunity to provide certainty and cut down
on satellite litigation. They could have done this simply by requiring the Claimant’s
solicitors to ask their clients to provide copies of all relevant policies in all cases. The
Court declined to do so.

Costs: Winning a Battle but Losing the War

Hooper & Another -v- Biddle & Co (a firm) 2006

The Facts

The Claimants initially claimed damages against the Defendant of £3.75million.
Liability was denied. Draft particulars of Claim were served on the Defendant
claiming £3.75million damages, costs and interest. The Claimants suggested
mediation, this was rejected by the Defendant on the grounds that the Claimants had
not particularised the claim.

The Claimants then formally served the Particulars of Claim seeking £350,000
damages. A single joint expert valued the Claimants’ loss at £38,000. This was
disputed by the Claimant who suggested mediation. The Defendant made a without
prejudice offer that was rejected. The Claimant then made a Part 36 offer to take
£38,000 plus costs which the Defendant rejected. The Defendant offered £38,000
with no Order for costs on a without prejudice basis, this was rejected. The next offer
made by the Defendant was an open one of £38,000 with no interest but with the
Court determining cost which was accepted by the Claimants. The Claimants argued
that they were the winners and should recover their costs. The Defendant argued that
the Claimants had grossly inflated their claim and accepted a fraction more than 10%
of their original claim.

High Court Decision

The Court could look a parties conducts when assessment costs. Considering the
Claimants’ conduct, the correct Order was to make no Order as to costs. It was not

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right to conclude that the Claimants had won the case. The Claimants had accepted
an offer that represented only 10% of their originally pleaded claim which could not
be regarded as a significant win. The claim had been exaggerated and it was clear that
the original Particulars of Claim had not been properly based on expert evidence.


This is not a Local Authority case but is relevant to the question of exaggerated claims
and how to deal with them. This case follows on from the important personal injury
case of Painting -v- University of Oxford to the effect that a Claimant who grossly
exaggerates his pleaded case is seriously at risk on costs. Given the fact that it is not
infrequently the case that the amount of costs claimed either approaches or exceeds
the overall figure for damages, it will be appreciated how important the principle
established by Painting is. Defendants should not be frightened by grossly
exaggerated claims, appropriate early offers should be made to settle and conduct is
all important. If the Defendant’s conduct is blameless then very substantial savings
on costs can potentially be made.

                                                                          October 2006

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