LIABILITY UPDATE Simon Mallett HIGHWAY Atkins v Ealing LBC  EWHC 2515 A manhole cover tilted causing injury. Teare J found that the system of inspection was inadequate. It was incapable of detecting this type of defect. The Defendant was only looking for trips or a difference in height between adjacent surfaces. It was not a reasonable system of inspection. There was a balance between public and private interests but in this case there was no evidence that it was unreasonable to have such a system. Day v Suffolk County Council  EWCA Civ 1436 Judge inferred that a pot-hole had been present. Defendant gave evidence of system of inspection carried out by an employee driving at 20-25 mph. It was too fast to carry out a proper inspection. Judge found pot-hole must have been present at time of accident and for some time before in order to have caused such damage. Judge entitled to draw factual inferences from the evidence. Harrison v Derby City Council  EWCA Civ 583 Defendant system of inspection included a six monthly inspection of footways. Claimant put foot in depression which had been caused by the collapse of a cellar roof around a grating under the highway. No depression evident on inspection 3 months before. Defendant relied on section 58 defence. Claimant conceded six monthly inspections for footways was adequate but should be more regular inspection over cellar voids. The Defendant was aware of the risk of the collapse of cellar voids and Judge said more regular inspections necessary. Court of Appeal said system of inspection was reasonable. There were 4000 other actionable defects which arose each year other than collapsed cellar voids and unreasonable to have a different system of inspection. Cenet v Wirral MBC  EWHC 1407 Claimant caught foot in depression on highway. The Judge found that the area was more akin to a pavement than a highway as pedestrians regularly crossed the road in this area. The Court of Appeal said he should not have done so. The risk was of a low order and the cost of remedying all such defects was wholly disproportionate. Cited Mills v Barnsley MBC (1992) PIQR P291 CA. Claim involved evidence from a witness who had been a witness or victim on 5 tripping accidents. OCCUPIERS LIABILITY David Lewis v National Assembly of Wales Lawtel AC0116055 There has to be a risk of injury by reason of danger “due to the state of the premises”. Motorbikes were used on a stretch of disused land. The land consisted of a bund and ditch. The accident occurred not due to the condition of the land but due to the activity carried out on it. There was nothing inherently dangerous about the land or any hidden danger or physical defect Cole v Davis-Gilbert  EWCA Civ 396 Claimant injured when fell in hole on village green. Mayday pole had been in hole. Removed and hole blocked. Hole subsequently became exposed. No liability as the evidence suggested the hole had only recently become exposed and probably caused by children. It had been filled in after the last event. No reports of previous injury. No evidence of negligence. The legal requirement of reasonableness was satisfied. Tedstone v Bourne Leisure Ltd  EWCA Civ 654 Claimant slipped on a pool of water near a Jacuzzi. Area had been clear of water 5 minutes before the accident. Report showed that some areas held water and required repairs. Judge found breach of section 2. Court of Appeal found that no reasonable system would have dealt with an unusual occurrence in time available. The water came from an unusual spillage which must have occurred minutes before the accident. Cited Ward v Tesco Stores Ltd (1976) 1 WLR 810 CA. Trustees of the Portsmouth Youth Activities Committee (a charity) v Poppleton  EWCA Civ 646 P was injured while rock climbing at their indoor climbing premises. He tried to jump from the back wall to a buttress on the opposite wall. Fell and rendered tetraplegic. Judge held nothing wrong with state of the premises but Defendant was liable as failed to warn the Claimant that thick safety matting did not make a climbing wall safe but might induce an unfounded belief that it did. Court of Appeal stated that it was extremely rare for an occupier of land to be under a duty to prevent people from taking risks which were inherent in the activity they had freely undertook. The risk of falling was obvious. It was also obvious that matting would not prevent injury. Orchard v Lee and Randall Judge Hughes QC 30/05/2008 13 year old boys playing tag in covered walkway or courtyard collided with a lunchtime supervisor causing her injury. There was no rule against running in the area. The boys were not liable. The risk of injury was not reasonably foreseeable to a 13 year old boy in that situation. Cited Mullin v Richards (1998) 1 WLR 1304 CA. Perry v Harris  EWCA Civ 907 Accident on bouncy castle at birthday party. Claimant struck on head by heel of taller and older boy performing somersault. Accident happened while parent helping another child. Judge held parents should have carried out continuous supervision and would have prevented somersault and stopped mixed age children playing at the same time. Court of Appeal held reasonable care had been taken. Impracticable to constantly supervise children and remove all risk of injury. Test was the care that a reasonably careful parent would have shown for her own children or a reasonable provider and supervisor of bouncy castle would have shown. HOLIDAY First Choice Holidays & Flights Ltd v Holden: May 22 2006 QBD Goldring J 2007 JPIL Issue 1/2007: Regulation 15 of the Package Travel, Package Holidays and Package Tours Regulations 1992 applied. The standard of care required was the standard applicable in the country where the accident took place. R (on the application of ABTA) v CAA and Passand DTI  EWCA Civ 1299 A package holiday requires the “pre-arranged combination” of the components of a package to come within the definition of a package holiday Office of Fair Trading v Lloyds TSB Bank Plc  UKHL 48 This raises the possibility of suing the credit card company for injuries abroad where the injury resulted from a product or service purchased by their credit card. PROVISION AND USE OF WORK EQUIPMENT REGULATIONS Given v James Watt College  CSOH 189 OH Claimant working in kitchen. The drinks dispensing machine emitted steam and a flash in her direction, causing her to fall and injure herself. Regulation 5 (1) applied. The machine was “work equipment”. The Claimant could succeed despite not actually using the machine herself at the time. Spencer-Franks v Kellogg Brown  UKHL 46 Mechanic went to repair defective door closer. In the process of removing the door closer he was struck by the metal linkage arm in the face. The issue was whether the door closer was work equipment within PUWER. Held it was work equipment on offshore platform. The equipment did not change status dependent on the employee. Strict liability imposed by PUWER. Smith v Northamptonshire County Council  EWCA Civ 181 The local authority was not liable under Regulation 5 for failure to maintain an access ramp. The Claimant was using the ramp to get a wheelchair user from her house in her role as carer/driver. The ramp was kept next to the property and had been installed by the NHS. The Claimant stepped on the edge of the ramp which gave way. The ramp was not in a state of evident disrepair. Although they inspected the ramp the Defendant did not have any control over the condition of the ramp. The Court of Appeal held that Parliament did not intend to impose strict liability where there was no underlying obligation upon a party for the maintenance of the ramp. Gower-Smith v Hampshire CC Rec Moger QC 27.06.2008 Fall from a step ladder as placed parallel to wall rather than at a right angle. Ladder overturned. Training insufficient. Inadequate compliance with Regulation 9 (1). WORKPLACE (HEALTH, SAFETY AND WELFARE) REGULATIONS 1992 Ellis v Bristol City Council  EWCA Civ 685 Regulation 12 (1) that every floor is of a construction “such that the floor or surface of the traffic route is suitable for the purpose for which it is used” is an absolute duty. It included the circumstances in which it is used. It included circumstances that were temporary in nature as long as they arose with “a sufficient degree of frequency and regularity”. Floor unsuitable as it was regularly wet due to the action of residents. Adams v Omar Homes Ltd Judge Yelton 14/02/08 Employee moved a loaded trolley that was blocking the main walkway in a factory when on his way to the toilet. He injured his back. Judge held there was a safe system of work. Temporary blockage which could have been avoided did not breach regulations. No breach of reg 17 or reg 20. ANIMAL ACT McKenny & Anor v Foster  EWCA Civ 173 A cow recently separated from her calf escaped from a field and caused a road traffic accident in which the passenger died. Section 2 of the Animals Act 1971. The Court of Appeal found that the cow‟s behaviour was outside the normal behaviour of a cow. The cow was exceptionally agitated and there was no evidence that cows in general became excessively agitated when weaned. STRESS AT WORK Leading cases still Hatton v Sutherland  ICR 613 and Barber v Somerset CC  UKHL 13 Intel Incorporation (UK) Ltd v Daw  EWCA Civ 70 Claimant succeeded where the injury to her health was reasonably foreseeable and the mere provision of a counselling service which the Claimant did not utilise was not an adequate satisfaction of their duty of care. They should have reduced her workload. Conn v Sunderland City Council  EWCA Civ 1492 Court limited possibility of the use of the Protection from Harassment Act 1997 in stress cases. Trivial incidents were insufficient to constitute harassment under the Act. The acts needed to be of such gravity as to justify the sanctions of the criminal law. ASBESTOS Johnston v NEI International Combustion Ltd  UKHL 39 Pleural plaques is not an actionable injury. It is not a disease or an impairment of a physical condition. It does not cause damage or it is de minimis. Possible action based on beach of contract suggested by Judges. Not considered by court NOISE INDUCED HEARING LOSS Harris v BRB (Residuary) Ltd  EWCA Civ 900;  PIQR P10 In pre 1990 cases there is a presumption that if noise levels were above 90 dB (A) the onus was on the employer to show why he was not negligent. If below that level the onus was on the employee to show why a duty should be imposed at all. Reiterates general position that employers are negligent if exposed Claimants to above 90 dB(A). They can be negligent if noise levels are below this but the employee will need to show why the particular employer had specific knowledge of the risk of injury from exposure to lower levels of noise. This particular employer was well aware of the risk of injury from exposure to noise at 85 dB (A) from 1973 at the latest. It was feasible for them to reduce the exposure. The Claimant‟s employment commenced in 1974. The Defendant‟s date of knowledge may be earlier. Parkes & Ors v Meridian & Ors: 14.02 07 Nottingham High Court: HHJ Inglis The Nottingham and Derbyshire Deafness Litigation  EWHC B1 The general position stated in Harris about breach of duty is correct. There may be a greater than average knowledge in particular cases. The beginning of 1983 was the date when large companies (those with greater than average knowledge) which read or responded to consultation documents or was aware of EEC proposals in 1982 should have been aware of the risk of injury from exposure to noise between 85 and 90 dB (A) e.g. Courtaulds and Pretty Polly. They should have taken action by 1985. Section 29 of the Factories Act 1961: “every place of work shall be made and kept safe” The standard of safety is governed by the general standard which ought to reasonably have been adopted by the employer at the relevant time i.e. it adds nothing to the common law test The diagnosis of NIHL: It should be robust: a history of noise exposure alone is not enough. There must be a credible history of noise exposure normally providing a NIL of 100; the loss must be in excess of that expected from presbyacusis alone; in under 55‟s a clear picture of a notch or dip at least 10dB deep and bilateral although some asymmetry is acceptable. Quantification of disability: There should be no low threshold in respect of damage. Where there is some level of disability, damages should be recoverable. There needs to be a real degree of noise induced impairment. Impairment at 4 kHz or 6 kHz is relevant – it is still important to speech. Damages: The minimum award without tinnitus is £3,000. If there is slight tinnitus which is a nuisance, damages should be at least £2,000 more. Tinnitus: The conventional view is that the causes of the hearing loss are the causes of the tinnitus. Apportionment: Straight line basis over time although some weighting to the first 10-15 years of exposure may be appropriate. Assessment of noise levels: The scientific assessment is more relevant than anecdotal descriptions of problems in the workplace. HAND ARM VIBRATION SYNDROME Control of Vibration at Work Regulations 2005 Came into force on the 6th July 2005. The exposure limit is an A8 of 5 m/s2 and the action level is 2.5 m/s2. WARNING: Kirk v Walton Cox  EWHC 1780 QB Contempt of Court action appropriate where Claimant described disabilities in her statement which wholly inconsistent with DVD evidence. Application could be pursued even when the claim had settled. UPDATE ON PI PROCEDURE Toby Wynn (1) The Disclosure of Electronic Documents Four Practical Suggestions (a) Inform your clients of these changes. Suggested memo for circulation to clients : “Recent changes to Court procedures mean that specific consideration has to be given to the disclosure (ie the provision of a copy to the other side) of all “electronic documents” which are relevant to a civil claim. “Electronic documents” include emails, internal messages via the company‟s intranet, entries on data management systems, portable data storage media and potentially even text messages sent on mobile phones. Further a document which has been “deleted” can be retrieved and the duty to disclose may extend to such a document. The fact that a document is intended to be “confidential” or “private” would not normally prevent its disclosure. You should therefore be aware that any such document you create may in due course be shown to a claimant (including a fellow employee) suing the company, subject of course to such matters as legal privilege. It is therefore sensible to follow this simple rule, which is in any event good practice, namely : never put into writing (in any form) something which you would not be happy to have read out in Court.” (b) At an early stage identify and request the preservation of material likely to exist and to be relevant Suggested memo for inclusion in pre-action letter : “We would ask you to retrieve and preserve the following electronic documents : (1) All email and intranet communications sent or received by Mr X‟s line manager and/or the factory‟s health and safety officer relating to this accident; (2) All text messages sent or received by Mr X‟s line manager and/or the factory‟s health and safety officer relating to this accident; (3) All emails and intranet communications sent by Mr X‟s line manager and/or the factory‟s health and safety officer relating to manual handling within the factory. (4) All emails and intranet communications sent within 12 months of the coming into force of the Work at Height Regulations 2005 (January 1st 2006) containing the keywords “Work at height”, “Statutory Regulations” , “ladders” “scaffolding”…. (c) Take positive steps to preserve electronic documents relevant to a claim and acquire an understanding of your client‟s IT systems and their electronic document retention policies. Make sure all litigation hold notices you send out make reference to electronic documents. At least ask your client‟s IT department to produce an audit of their data management systems which, amongst other things, should clearly and authoritatively set out the data storage practices of the force in relation to all classes of electronic document. Be aware that adverse inferences may be drawn from a failure to produce a document which ought reasonably to have been preserved, see Zubulake v Warburg LLC (d) Word your disclosure request carefully to reflect both the CPD PD checklist for disclosure and the potential relevance of the document. The fundamental duty in relation to disclosure has not been altered by the practice direction in any way. The duty to disclose remains the same and in particular does not expand because of increased ease of access. A fishing exercise is still a fishing exercise even if conducted by a search engine. Just because a document has been “deleted” does not mean it is not discoverable, see 31PD.2A. There are a number of specific factors to consider when deciding the appropriate extent of the search and these may be a useful starting point for the wording of a disclosure statement. *The number of documents involved. *The nature and complexity of the proceedings and in particular the importance of the issues at stake. *The ease and expense of retrieval of any particular document *The likely significance of any documents searched for (2) Recent Limitation Act Cases Norton v Corus UK Ltd  EWCA Civ 1630 Case of Ian Skelt‟s. Sheffield HAVS claim. Deals with the need (or lack of need) for a defendant to call expert evidence as to the advice a claimant would have received had he or she sought expert medical opinion in relation to the cause of their symptoms. Effectively Judge can make the necessary finding to establish constructive knowledge without such evidence. McCoubrey v Ministry of Defence  EWCA 1630 Claim by soldier in respect of hearing impairment. In assessing whether an injury is significant you do not consider subjective matters such as fact that it did not impact upon his chosen career, rather you simply ask did the injury satisfy the statutory definition. Horton v Sadler  UKHL 27 The rule in Walkley and Precision Forgings Ltd over-turned, ie claimant in a PI action not barred from bringing an action outside limitation period (and seeking Court to dis-apply via section 33) by reason of having previously brought an action within the 3 year period. A v Hoare (and Others)  EWHC 1573 (QB) Sex offender/ lottery winner case. Claims for assault ie trespass to the person are subject to the normal 3 year limitation period for personal injuries ie Stubbing v Webb over-ruled. Kew v Bettamix Limited*  EWCA Civ 1535 Really interesting decision of Leveson LJ on limitation in relation to industrial disease cases which, as he points out, involve an injury that “is insidious in onset and gradual in development.” It was an HAVS case and is about as favourable an interpretation of the law post Adams as one could imagine both in relation to what the claimant needs to be aware of to trigger constructive knowledge and the exercise of the Court‟s section 33 discretion (see for example paragraphs 29 and 41). It is also essential reading in relation to the appropriate order for costs in cases where the claimant takes a bad section 14 point but ultimately wins on section 33. Sec of State for Trade and Industry v James Mackie  EWCA 642 Another of Ian Skelt‟s Sheffield cases. This time a NIHL case. Case on actual knowledge where claimant given ambiguous but not positively misleading advice on causation. Furniss v Firth Brown Tools  EWCA 182 Another Sheffield NIHL case which offers some hope to claimants seeking to argue that the early stages of NIHL, eg difficulty hearing the telephone and having the TV turned up do not constitute significant injuries for the purposes of section 14 (2) and confirming that it is for the defendant to prove this element. Field v British Coal Corporation  EWCA 912 This is a Doncaster case (Bullimore). Again NIHL and again gives some hope to claimant‟s in deafness cases where they may initially erroneously attribute their symptoms to other causes (such as wax). (3) Fatal Accident Act Claims Welsh Ambulance Services NHS Trust v Williams  EWCA 81 Useful decision of Lady Justice Smith in relation to assessing the value of the dependency claim and the way you disregard benefits accruing as a result of death (section 4). In particular the case highlights how the FAA can give rise to what in any other context would be regarded as substantial windfall damages to “dependants”. Certainly this case requires careful consideration in any “family business” claim. DAMAGES UPDATE Ian Skelt Periodical payments: The Damages Act 1996 amended by the Courts Act 2003 introduced periodical payments Tameside and Glossop Acute Services NHS Trust v Thompstone  EWCA Civ 5 Indexation for care and case management costs should be updated on the basis of the most accurate available data: ASHE 6115 (Annual Survey of Hours and Earnings) rather than the RPI. Rowe v. Dolman  23/7/08 Lump sum payments still to be considered. Periodical payments may result in shortfalls in the care costs. Part 36 Offers Carver v BAA PLC  EWCA 412 Amendment to CPR Part 36 requires wider review of who has „won‟. Early offer made to claimant of £4,520. Following lengthy period of time Claimant recovers £4,686.20. The mere amount of money was not a governing criterion for the assessment of whether the outcome was more advantageous. Account was taken of the delay, the stress of the delay and of the trial process itself. Bereavement damages: Awards under section 1A of the Fatal Accidents Act 1976 increased from £10,000 - £11,800 to all causes of action accrued on or after 1st January 2008. Mesothelioma Smith v Bolton Copper Ltd June 10 2007 QBD (Master Whittaker) The Judicial Studies bracket for mesothelioma awards of £47,850-£74,300 was appropriate in all but exceptional cases. Here Claimant died within 2-3 months. The bottom of the bracket was for death within days or weeks of diagnosis. Dyslexia Skipper v Calderdale MBC  EWCA Civ 238 The Defendant had failed to ameliorate dyslexia. General damages were recoverable for her considerable frustration and distress at school and for her loss of confidence and self esteem on the grounds of a loss of amenity. Damages were recoverable for a loss of future earning capacity on the basis that the Claimant would have achieved better examination results and was therefore deprived of a professional career with the attendant salary NHS Injury Costs Recovery Scheme Part 3 of the Health and Social Care (Community Health and Standards) Act 2003. Came into force on the 29th January 2007. Replaces a previous scheme previously limited to road traffic accident claims. The NHS can recover the cost of treating injured patients to all cases where personal injury compensation is paid (not just RTA). It includes the cost of ambulance services Car Hire Bee v Jenson  EWCA Civ 923 Car supplied by own insurer. Entitled to recover hire charges for a reasonable replacement vehicle at a reasonable cost for a reasonable time. Irrelevant supplied pursuant to an arrangement with own insurer. Thompson v Vincent Haulage 15/4/2008 Impecunious claimant able to recover the increased costs of credit hire charges. Where a Claimant is able to pay spot hire, then not entitled to recover the additional amount. See also Lagden v O‟Conner.