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					                               LIABILITY UPDATE

                                    Simon Mallett


HIGHWAY


Atkins v Ealing LBC [2006] 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 [2007] 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 [2008] 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 [2008] 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 [2007] 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 [2008] 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
[2008] 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 [2008] 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 [2006] 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 [2007] 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 [2006] 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 [2008] 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 [2008] 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 [2007] 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 [2008] 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 [2002] ICR 613 and Barber v Somerset CC
[2004] UKHL 13


Intel Incorporation (UK) Ltd v Daw [2007] 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 [2007] 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 [2007] 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 [2006] EWCA Civ 900; [2006] 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 [2007] 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 [2008] 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 [2006] 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 [2006] 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 [20006] 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) [2008] 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* [2006] 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 [2007] 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 [2008] 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 [2008] 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 [2008] 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 [2008] 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 [2008] 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 [2008] 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 [2006] 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 [2007] 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.

				
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