APIL SCOTLAND - MEETING OF MEMBERS

Wednesday, 11 November

3 – 6pm

WELCOME

Ronald Conway APIL Scotland coordinator

Jonathan Wheeler

APIL president

FOREIGN AND TRAVEL CASES UPDATE

David Short

APIL Scotland secretary

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FOREIGN AND TRAVEL CASES UPDATE

APIL SCOTLAND GROUP

MEETING David Short

Balfour+Manson LLP 54-66 Frederick Street, Edinburgh

www.balfour-manson.co.uk

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ROME II • Article 4 The General Rule: Unless otherwise provided for in this regulation, the law

applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.

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Assessment of Damages

• Therefore will be in accordance with the law of the place where the damage occurs, namely the country where the injury is sustained.

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Exceptions to Rome II

1. Both parties habitually reside in one State but have an accident in another is the law of their own State that should be applied.

2. If another system of law is clearly more closely connected to the issues then that of the place where the injury occurred, by way of exception, then the other system of law can be adopted.

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3. Pre-amble paragraph 33 says:

“According to the current national rules on compensation awarded to victims of road traffic accidents, when qualifying damages for personal injury cases in which the accident takes place in a State other than that of the habitual residence of the victim the Court seized should take into account all the relevant actual circumstances of the specific victim, including in particular the actual losses and costs of after-care and medical attention.”

Effect of this may be that in serious injury cases, particular catastrophic injuries, one may find oneself with foreign based damages but UK damages for past and future care.

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Recent Developments

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Florin Lazar

• 10 September 2015 Advocate General Wahl delivered his opinion in the Florin Lazar case regarding interpretation of Article 4(1).

• Circumstances – Fatal Accident in Italy with some relatives of Romanian nationality resident in Romania and others in Italy.

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Florin Lazar

Questions referred to the European Court • How is the term “the (place) in which the

damage occurs” to be interpreted in the context of a claim by family members of a deceased.

• For purposes of the application of Article 4(1) does damage suffered in their State of residency by close relatives of deceased constitute “damage”

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Florin Lazar • The Advocate General’s view was domestic

legal solutions on third-party damage should not have an impact on the interpretation of the word “damage” in Article 4(1).

• It goes on to say that the law applicable is where the damage was sustained by the direct victim, regardless of the harmful effects suffered elsewhere by third parties.

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THE LESSONS FROM MONTGOMERY v

LANARKSHIRE HEALTH BOARD

Fred Tyler Balfour + Manson Solicitors

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APIL Scotland

11 November 2015 Fred Tyler

The lessons from

Montgomery v Lanarkshire Health Board

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Hunter v Hanley 1955 S.C. 200 Lord President Clyde @ p205 • "To establish liability by a doctor where deviation

from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care."

Sidaway v Bethlem Royal Hospital & Anr [1985] AC 871

• “The merit of the Bolam test is that the criterion of the duty of care owed by a doctor to his patient is whether he has acted in accordance with a practice accepted as proper by a body of responsible and skilled medical opinion…The Bolam test should be applied.” (per Lord Diplock)

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Montgomery v Lanarkshire Health Board [2015] UKSC 11

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Outer House

• Proof - Lord Bannatyne [2010] CSOH 104

• Shoulder dystocia

Outer House

Should Mrs Montgomery have been informed of the risk of shoulder dystocia if she proceeded with vaginal delivery and should she have been advised of the alternative of delivery by caesarian section?

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Facts and evidence • Mrs Montgomery high risk, small,

diabetic • Likely to have a large baby • Consultant care • 10% risk of shoulder dystocia • Very small risk of brain damage • Mother’s concerns expressed • Not seen as a question of specific risks

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Facts and evidence

• If asked, the consultant said that she would have advised her about shoulder dystocia

• If asked for elective caesarean section, Mrs Montgomery would have been given one

• Mrs Montgomery would have had a caesarean section had she known the facts and had she been given the option

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Court of Session • At proof, consent per Hunter v Hanley • Pearce v United Bristol Healthcare NHS

Trust [1999] PIQR 53 • Duty to warn if significant risk so as to

affect judgement of reasonable patient • Per the LO, duty to advise of risk only if

substantial risk of grave adverse consequences

Court of Session

• Inner House upheld Lord Bannatyne • There had been no departure from

Sidaway in recent cases so as to require a doctor to inform of significant risk

• Supreme Court hearing, July 2014 • Decision, 11 March 2015

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Supreme Court

Bench of 7 judges due to importance

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Supreme Court • Sidaway [1985] A.C. 871 • Law outdated – patients hold rights and are

consumers exercising choice • General Medical Council Codes of Practice • Competent patients have a right to know all

relevant information about their treatment and there is a partnership between the patient and doctor

• http://www.gmc-uk.org/guidance/good_medical_practice.asp

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Bolam/Hunter v Hanley is dead in consent

• GMC guidance in 1998 and held • “there can be no doubt that it was

incumbent on Dr McLellan to advise Mrs M of the risk of shoulder dystocia… and to discuss with her the alternative of delivery by caesarean section”

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87. An adult person of sound mind is entitled to

decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.

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The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should be aware that the particular patient would be likely to attach significance to it.

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Therapeutic exception 88. The doctor is however entitled to withhold

from the patient information as to a risk if he reasonably considers that its disclosure would be seriously detrimental to the patient’s health. The doctor is also excused from conferring with the patient in circumstances of necessity, as for example where the patient requires treatment urgently but is unconscious or otherwise unable to make a decision..

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Fact sensitive assessment 89….. it follows from this approach that the

assessment of whether a risk is material cannot be reduced to percentages. The significance of a given risk is likely to reflect a variety of factors besides its magnitude: for example, the nature of the risk, the effect which its occurrence would have upon the life of the patient, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives. The assessment is therefore fact-sensitive, and sensitive also to the characteristics of the patient.

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90. Secondly, the doctor’s advisory role involves dialogue, the aim of which is to ensure that the patient understands the seriousness of her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that she is then in a position to make an informed decision. This role will only be performed effectively if the information provided is comprehensible. The doctor’s duty is not therefore fulfilled by bombarding the patient with technical information which she cannot reasonably be expected to grasp, let alone by routinely demanding her signature on a consent form.

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No discussion

85. A person can of course decide that she does not wish to be informed of risks of injury (just as a person may choose to ignore the information leaflet enclosed with her medicine); and a doctor is not obliged to discuss the risks inherent in treatment with a person who makes it clear that she would prefer not to discuss the matter.

The reaction

• “This [decision] may not be welcomed by some healthcare providers; but the reasoning of the House of Lords in Donoghue v Stevenson [1932] AC 562 was no doubt received in a similar way by the manufacturers of bottled drinks.”

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Implications for cases • Law not applied retrospectively • GMC Good Medical Practice 1998, 2001,

2006, 2013 and Consent 2008, update due end 2015

• Doctor explains options…he may recommend a particular option… but must not put pressure on the patient to accept their advice… the patient decides

• Client’s evidence on what they would have done has to be accepted at proof – credibility and reliability

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Lessons for doctors

• Not much in theory? • Process of taking consent • Senior doctor and time consuming • Information on computer • Appraisals and training • Documentation in medical records • Patient’s responsibility

Lessons for lawyers

• Consider both H v H and Montgomery from the outset in new cases

• Carefully precognosce client on consent • Consider Montgomery in cases already

raised and possible amendment • Expert evidence will still be essential on

risk • But materiality is for the patient

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WORKPLACE CASE UPDATE

Cenric Clement-Evans New Law Solicitors

APIL EC Officer

Enterprise Act

Update? Cenric Clement-Evans

NewLaw Solicitors

11.11.15

Post Enterprise?

• How this will work after the removal of civil liability?

Attack of the Dalek

• ELIZABETH GILCHRIST

• v ASDA STORES LIMITED

• OHCS (Lady Stacey) 17/06/2015

• [2015] CSOH 77

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Pursuer’s argument

• Paragraph 14! • “Counsel submitted that employers

remain under a statutory duty to comply with health and safety regulations,

• as the duties set out in statutory instruments made prior to the 2013 Act

• inform and may define the scope of duties at common law. 44

Lady Stacey • I accept the argument

put before me by counsel of the pursuer about the applicability of the regulations.

• I accept that the employers were under a duty to carry out a risk assessment of the use of the dalek. 45

• But! • Claim failed

because failed to establish breach of duty as alleged

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Help from Hansard mentioned!

• Viscount Younger • 24 April 2013:

Viscount Younger • “We acknowledge that this reform • Will involve changes in the way that

health and safety-related claims for compensation

• Are brought and run before the courts”.

Viscount Younger • “However, to be clear • And to avoid any

misunderstanding that may have arisen

• This measure does not undermine

• Core health and safety standards”.

Viscount Younger

• “The Government are committed • To maintaining and building on the UK's

strong health and safety record”.

Viscount Younger • “The codified framework • Of requirements

responsibilities & duties • Placed on employers • To protect their

employees from harm • Are unchanged”……

Viscount Younger

• “And will remain relevant • As evidence of the

standards expected of employe[r]s

• In future civil claims for negligence”.

Lord Faulks-Not mentioned

• “A breach of regulation • Will be regarded as

strong prima facie evidence of negligence.”

Lord Faulks

• “Judges will need some persuasion • That the departure from a specific and

well-targeted regulation • Does not give rise to a

claim in negligence.”

Lord Reid – Boyle v Kodak-Mentioned

• “Employers are bound to know their statutory duty

• and to take all reasonable steps

• to prevent their men from committing breaches….”.

Historical Assistance? Mentioned

• Griffiths v Vauxhall Motors Limited

• Management Regs considered • “the relevance of regulation 3 is

that it helps to identify the standard of care to be expected of a reasonable employer.”

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Important Cases on Risk Assessment-Not mentioned

• ALLISON v LONDON UNDERGROUND LTD • CA (Civ Div) (Sir Anthony Clarke MR, Smith

LJ, Hooper LJ) 26/02/2008 • [2008] EWCA Civ 71

Smith LJ

• How is the court to approach the question of what the employer ought to have known about the risks inherent in his own operations?

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Smith LJ

• In my view, what he ought to have known is (or should be) closely linked with the risk assessment which he is obliged to carry out under regulation 3 of the 1999 Regulations.

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Smith LJ

• That requires the employer to carry out a suitable and sufficient risk assessment

• for the purposes of identifying the measures he needs to take

• to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions. 60

Smith LJ

• What the employer ought to have known

• will be what he would have known

• if he had carried out a suitable and sufficient risk assessment. 61

Smith LJ

• Plainly, a suitable and sufficient risk assessment will identify those risks in respect of which the employee needs training.

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Smith LJ

• Such a risk assessment will provide the basis not only for the training which the employer must give

• but also for other aspects of his duty,such as, for example, whether the place of work is safe or whether work equipment is suitable

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Smith LJ • “Risk assessments are

meant to be an exercise by which the employer examines and evaluates all the risks entailed in his operations

• And takes steps to remove or minimise those risks”.

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Risk Assessments

• “They should be a blue print for action.”

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Gloves • THRELFALL v HULL CITY COUNCIL • CA (Civ) (Ward LJ, Smith LJ, Jackson

LJ) 22/10/2010 • [2010] EWCA Civ 1147

Dame Janet Smith • “For the last 20

years or so • It has been

generally recognised …

Dame Janet Smith • “That a reasonably prudent employer • Will conduct a risk assessment in

connection with his operations • So that he can take suitable precautions

to avoid injury to his employees”.

Court of Appeal • In many circumstances • A statutory duty • To conduct such a risk

assessment • Has been imposed”.

Court of Appeal • “Such a requirement • Statutory or not • Has to a large extent

taken the place of the old common law requirement”..........

Court of Appeal • “That an employer had to consider • And take action against those risks • Which could be reasonably foreseen”.

Paragraph 31 • “The modern requirement • Is that he should take

positive thought • For the risks arising from

his operations”.

Alison Dugmore v Swansea NHS Trust

• “… the purpose of the regulations is protective and preventive:

• they do not rely simply on criminal sanctions or civil liability after the event to induce good practice. 73

Purpose of the Regulations

• They involve positive obligations to seek out the risks

• and take precautions against them.

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• ROBB v SALAMIS (M & I) LTD • HL (Lords Hope, Clyde, Scott,

Rodger & Carswell) 13/12/07 • [2006] UKHL 56

Lord Rodger • “The primary purpose of the

relevant regulations is not to give a ground of action to employees who are injured in some particular way

• but to ensure that employers take the necessary steps to

• prevent foreseeable harm coming to their employees in the first place.”

• Christopher Slowey -vs- Caspian UK Group Limited trading as Burger King

• Glasgow Sheriff Court

• Sheriff Deutsch

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Burger King in Clydebank

• Started work 15/11/13 • Accident 1/12/13 • Exiting restaurant to

go on break • Slips on wet floor • Soft tissue injury to

left elbow

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The Pursuer’s Case

• Floor had been mopped

• Left wet / damp • No wet floor signs or

other warning • Vicarious liability • Common law • Reg 5 and Reg 12

Workplace Regs 1992

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Important case!

• Enterprise Act not specifically pleaded

• but • BLM instructed

counsel on the basis of importance to the client and novelty of the post-ERRA point – Claire Connelly

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Outcome?

• Floor left

wet/damp • No signs • Defender

vicariously liable for the negligence of its employee 81

Enterprise Act?

• Sheriff declined to hear lengthy submissions on impact on Regulations

• But • Described the

effect of the Act as ‘a revolution’ 82

Tesco v Ward etc? • Obiter • the burden is on the pursuer to establish

negligence, • to establish what further reasonably

practicable steps • the defender ought to have taken

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84 11/13/2015 84

Ward v Tesco Stores Limited • Common Law • Slip in supermarket • Reversal of the burden of

proof • Why should slipping in

work be different?

Megaw LJ

• It is for the Plaintiff to show that there has occurred an event which is unusual,

• and, which in the absence of explanation, is more consistent with fault on the part of the defendants than the absence of fault ………

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Megaw LJ

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• …..the defendants can still escape from liability

• … if they could show that the accident must have happened,

• or even on balance of probability would have been likely to have happened,

Megaw LJ

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• even if there had been in existence a proper and adequate system,

• in relation to the circumstances, to provide for the safety of customers.

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More Ward v Tesco Stores Limited

• Dawkins v Carnival PLC (T/AS P & O Cruises)

• [2011] EWCA Civ 1237

Nigel Tomkins • DUSEK & ORS v STORMHARBOUR

SECURITIES LLP • QBD (Hamblen J) 19/01/2015 • [2015] EWHC 37 (QB)

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Practice Points

1) An employer owes a personal, non-delegable duty to all of their employees to take reasonable care for their physical safety:

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Practice Points

2) An employer must not to subject those employed by him to unnecessary risk:

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Practice Points

3) The employer's duty does not just relate to the premises occupied by him

• it can extend to places & 3rd pty premises where the employee is sent to work:

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Practice Points

4) Both statute and the common law • require that an employer must conduct

suitable and sufficient risk assessments • and act upon them:

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Practice Points

5) The Enterprise and Regulatory Reform Act 2013 neither alters nor reduces these duties of employers.

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How is it working for you?

USE OF MEDIA AND COMMUNICATIONS

Lorraine Gwinnutt Head of Public Affairs

APIL

Tips on dealing with the

media

Lorraine Gwinnutt Head of Public Affairs

Why bother?

• To attract clients • To influence opinion formers • PR versus advertising

News is… •Anything you don’t want the journalist to know •Local angle

•Hook •Relevance

News is not…

•A ‘puff’ for your firm

•Something which happened last week

Getting the message across

•Telephone

•Responding to an enquiry

•Press release

• Is it really news?

• The first sentence

• Who, what, where, when, why?

• Quotes

Writing the perfect press release

Writing the perfect press release

• Avoid legal jargon

• The human angle

• Keep it short

• Contact details

Dealing with interviews Remember the 5 ‘P’s:

1. Poor

2. Planning 3. Produces 4. Poor 5. Performance

Dealing with interviews

•Prepare three key points

•Prepare for counter arguments •Check the facts - and check again •Paint pictures

Preparation:

Dealing with interviews Preparation: • Will it be live?

• Studio/office/phone? • How long? • Will anyone else be taking part? • When will it be aired and where?

Dealing with interviews Delivery: • Be concise

• Never repeat negative phrasing

• Soundbites

• Be sincere

And remember… …it ain’t over ‘til it’s over!

“She was just a sort of bigoted woman. She said she used be a Labour voter. I

mean it's just ridiculous.”

Handling journalists A journalist is not: • Your friend • Your enemy

• Legally qualified

• Lazy

Handling journalists A journalist is: • Always under pressure

• Just trying to fill space

• Already thinking about the next deadline

• An opportunity

Handling journalists • Be proactive (provided it’s newsworthy)

• Be reliable

• Be trustworthy

• Be honest

“I did not have sexual

relations with that

woman…”

Handling journalists If a journalist contacts you: • Don’t shoot from the hip • Stall if necessary • If you can’t help, point him in the right direction

Golden rules • Respect deadlines

• Don’t say ‘no comment’

• Don’t expect the journalist to be an expert

• Don’t be flippant

People say, "How can you sell this for such a low price?", I

say, "because it's total crap."

"cheaper than an M&S prawn

sandwich but probably wouldn't

last as long."

Golden rules

• Don’t dwell on negative questions

• Don’t ask to see copy

• Never go ‘off the record’

EVER

THANK YOU

OPEN DEBATE ON COURT REFORMS

How is it going?

THANK YOU