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Greenwoods Alert 107

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Greenwoods Alert 107 Powered By Docstoc
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Issue 107– 24th October 2007

In this issue... CASES
-Personal Injury/Pleural Plaques - Personal Injury/Damages - Personal Injury/Liability - Costs/Part 36 Offer - Professional Negligence - From Within Greenwoods SEMINARS - Representing a Company in the Coroners Court - Pensions Loss

CASES PERSONAL INJURY/PLEURAL PLAQUES
In our Email Alert on 17 October we reported the decision of the House of Lords in Johnston v NEI International Combustion Ltd and related appeals [(2007) UKHL 39] a landmark decision that those involved in chest disease claims cannot have failed to notice. In upholding the earlier decision of the Court of Appeal the Lords found that symptomless pleural plaques were not damage that could found a cause of action. Although the various Claimants had been negligently exposed to asbestos dust and had developed pleural plaques the Court could only take into account future disease and anxiety where the victim had actually suffered some compensatable physical injury. Nor could a claim for provisional damages be founded. In the related case of Grieves v FT Everard & Sons the Court found that the claimant’s psychiatric injury was not a reasonably foreseeable consequence of his employer’s breach of duty as it was not foreseeable that the creation of the risk of an asbestos-related disease would cause psychiatric illness to a person of reasonable fortitude

PERSONAL INJURY/DAMAGES
- Costs Update
- Interviewing Witnesses
London Office 18 Bedford Square London WC1B 3JA Tel: 020 7323 4632 Fax:020 7631 3142 Milton Keynes Office 2 Eskan Court, Campbell Park, Milton Keynes MK9 4AN Tel: 01908 298200 Fax: 01908 298298 Bristol Office 4th Floor, 37-39 Corn Street Bristol, BS1 1HT Tel:0117 377 2323 Fax:0117 377 2320 Email: crmsubscribe@greenwoods-solicitors.com

The case of Margaret Cameron (Widow and administratrix of the estate of Donald Cameron, deceased v Vinters Defence Systems Ltd [(2007) EWHC 2267 (QB)] contains two particular points of interest. First, when assessing damages for pain, suffering and loss of amenity the Court could depart from the Judicial Studies Board Guidelines but only with justification. In the instant case such a departure was justified because of the relative brevity of the deceased’s suffering prior to his death from malignant mesothelioma. Secondly, under S4 Fatal Accidents Act 1976 the Court is required to disregard “benefits which have accrued or will or may accrue to any person or his estate…as a result of his death..” The Claimant argued that damages that she had already received under the Pneumoconiosis etc. (Workers’ Compensation) Act 1979 fell within the section and were to be disregarded. The High Court Judge did not agree. Although the award under the 1979 Act arose out of the deceased’s death it did not reflect the Claimant’s entitlement as a widow as she would not have been entitled to such an award if she had notified the Department for Transport, Local Government and the Regions of her intention to pursue the Defendant for damages. The way in which the two claims had been “timetabled” could not lead to the result that the Claimant desired and she would have to give credit for the payment already received.

www.greenwoods-solicitors.com PERSONAL INJURY/LIABILITY

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The need to carry out individual risk assessments has been emphasised in Gravatom Engineering Systems Ltd v Parr [(2007) EWCA Civ 967]. The Claimant was assisting three other men to move a number of heavy machines using skates. One man was at the front of each machine steering it; one was at the side acting as a look-out; and the Claimant was with the other man at the back, pushing the load. The Claimant injured his back. The Trial Judge found that the work was outside the Claimant’s normal duties and expert evidence confirmed that the force needed to start the machines off and maintain them in motion was significantly greater than that laid down in the Health and Safety Executive Guidance. Accordingly there had been a breach of regulation 4(1)(b)(ii) Manual Handling Operation Regulations 1992. The Defendant appealed on the grounds that the same method of work had been adopted previously without incident, all reasonable steps had been taken to reduce the risk of injury to the lowest level and that accordingly any breach of the regulation was not causative. The Court of Appeal upheld the Judge’s findings on the basis that although similar operations had been carried out before there had been no direct comparison with those and what had been happening on the day of the accident. The degree of risk could vary in any operation, including the distance to be moved, the length of time of the physical effort and the age and capability of those involved. The Judge was entitled to find that there was considerable risk of injury to the Claimant and that the Defendant had not taken appropriate steps to reduce the risk to the lowest level reasonably practicable by considering alternative methods of work.

COSTS/PART 36 OFFER
Although it relates to a partnership dispute Martin v Randall [Lawtel 23/10/2007] sends out an important message in relation to Part 36 monetary offers. In May 2005 the Claimant had made a Part 36 offer for what he considered to be his share of the business. The Defendant did not accept the offer and proceedings were issued. There was a delay in the preparation of the Claimant’s expert’s report valuing the partnership shares but on the day before the Trial the Defendant accepted the expert’s valuation of his shares in an amount very close to the amount offered under Part 36. The only issues to be determined by the Trial Judge were whether or not the Defendant had acted fraudulently and costs. The Judge found that the Defendant had not been fraudulent but ordered (erroneously) that he should pay the Claimant’s costs from the date on which the Part 36 offer had been made. The Court of Appeal upheld the order in respect of costs save that it should run from the date that was twenty-one days from the date on which the Part 36 offer was made. Reference was made to the factors to be considered under CPR 44.3(5) including conduct both before and during proceedings, whether a party had succeeded on part of a case and whether there had been any offers in settlement. The Court took the view that had the Part 36 offer been accepted in time the allegation of fraud would not have been pursued but even though the Claimant had lost on that point he had succeeded on the principal issue of securing payment for his share in the partnership. Of particular importance the court indicated that the twenty-one day period for acceptance of a Part 36 offer was not suspended while an offeree investigated an offer and it had not been open to the Defendant to wait for the Claimant’s valuation report before making a decision on the offer made.

PROFESSIONAL NEGLIGENCE
The case of Al-Ruby v Quist Solictors [(2007) EWHC 2297 (QB)] serves as a useful reminder that all elements of a claim (namely duty of care, breach and foreseeable loss) must be decided in a claimant’s favour if damages are to be recovered. The Claimant’s solicitors had issued Claim Forms alleging libel but failed to serve them within the four month period permitted. Applications to extend the validity of the Claim Forms were unsuccessful. The Claimant sued the solicitors for breach of contract and negligence but the Claim Form was struck out on the grounds that there was no reasonable prospect of the Claimant successfully establishing that any breach by his solicitors had caused him any loss. The High Court Judge on appeal agreed. Although the actions were time-barred there was no prospect of the Claimant establishing that he had been libelled and the claim had no value.

www.greenwoods-solicitors.com FROM WITHIN GREENWOODS-CONTRIBUTORY NEGLIGENCE

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Judgment has been handed down in the High Court in London in the case of Gleeson v Court [(2007) EWHC 2397 (QB)] which Greenwoods was instructed by GHL Services to handle on behalf of Zenith/Link. The Claimant had spent the night drinking with the Defendant driver and others and when the time came to go home there were six in the party. As there was insufficient room in the passenger compartment of the defendant’s Ford Fiesta the Claimant elected to climb into the boot. The vehicle subsequently left the road, collided with a safety barrier and the Defendant was ejected out of the hatchback. On the evidence the Judge found that the Claimant knew that the Defendant had had too much to drink and he applied an initial discount of twenty-percent to reflect that factor. [The Judge also commented that even if he had accepted that the Claimant was too drunk to appreciate what he was doing in travelling with the Defendant the outcome would have been the same as he did not see “that someone who has deprived themselves of the capacity to perceive a danger should be in a better position than a sober person”]. In respect of the Claimant’s decision to travel in the boot of the car the Judge compared that with failing to wear a seatbelt. He applied an initial discount of twenty-five percent. The Judge then “stepped back” and looked at the overall level of contributory negligence and found that it would not be permissible to aggregate the two elements to produce a total of forty-five percent. In his view that failed to reflect the Defendant’s responsibility for the damage. The net reduction was set at thirty percent. For further information on this case please contact Malcolm Henke on 0207 462 3483 or email mch@greenwoods.com

For further information on any of the issues dealt with in this issue (other than where a contact name has been provided) please contact Geoff Owen (01908 298216) - or gro@greenwoods-solicitors.com To unsubscribe from the Greenwoods’ Alert please email crm@greenwoods-solicitors.com

SEMINARS
Throughout 2007, Greenwoods will be holding a series of seminars for both Greenwoods lawyers and interested clients. Each week, we will publicise the seminars to be held over the forthcoming weeks. If you would like to attend any of the seminars shown below, please e-mail crmsubscribe@greenwoods-solicitors.com We will then notify you as soon as we can regarding availability as space is limited. Please note that events are held in Central London and occasionally Milton Keynes

Representing a company in the Coroners Court
Date 25th October 2007 Time 17.00 - 18.00 Location 18 Bedford Square London WC1 Speaker(s) Charles Curtis 1 Temple Gardens

www.greenwoods-solicitors.com SEMINARS (Cont’d) Pensions Loss
Date 8th November 2007 Time 16.00 - 17.00 Location 2 Eskan Court Milton Keynes Speaker(s)

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Hugh Hamill 12 Kings Bench Walk

Costs Update
Date 15th November 2007 Time 17.00 - 18.00 Location 2 Eskan Court Milton Keynes Speaker(s) Jim Richings J W Richings

Interviewing Witnesses
Date 22nd November 2007 Time 17.00 - 18.00 Location 18 Bedford Square London WC1 Speaker(s) David Beardsworth Absolute Partnership

Other Greenwoods Publications
As well as the weekly Alert, Greenwoods also publishes three other bulletins. If you wish to subscribe to any of these, please e:mail crm@greenwoods-solicitors.com FRAUD NEWS H & S NEWS PICG NEWS — Quarterly Publication issued by Greenwoods’ Counter Fraud Group — Quarterly Update issued by Greenwoods’ Health & Safety Group — Monthly News from Greenwoods’ Property Insurance Construction Group

Greenwoods is a firm of solicitors regulated by the Solicitors Regulation Authority in England and Wales. You can access the rules which regulate our professional conduct at: www.rules.sra.org.uk


				
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