Legal Watch

Personal InjuryIssue Number: 002

16 January 2014

Under the revised CPR 32.2(3) the court has the power to

restrict factual witness evidence. The case of Maclennan v

Sindall (Infrastructure) Ltd (2013) EWHC 4044 (QB) is an early

example of the court exercising this power.

The claimant, who had been employed by the defendant, had

suffered a severe brain injury in an accident at work. Liability

was admitted subject to 25% contributory negligence.

Quantum remained to be determined; the trial was estimated

to last five days, and the trial window started at the end of

March 2014. In respect of loss of earnings, the claimant

proposed to tender the evidence of 43 witnesses. Their

statements concerned four broad issues: whether, but for the

accident, the claimant could have worked abroad and earned

more than he would have in the United Kingdom; whether he

would have retired at 65 or 70; what his promotion prospects

might have been; and what earnings he could reasonably have

expected. The defendant argued that those issues were

common in personal injury cases, and it sought an order

limiting the claimant to calling no more than eight witnesses

as earnings comparators.

The High Court judge held that overall the statements were

extremely brief; they did not attach corroborative or supporting

documentation; and they included assertions about the

availability of work in the UK and abroad, rates of pay, typical

retirement ages, and the claimant's qualities and employment

prospects generally. There was material duplication, though

the repetition of a proposition by a variety of witnesses could

be said to add to its weight, and it was possible that the sum

of the evidence might exceed the probative weight of its parts.

Under CPR 32.2(3), which came into effect as a result of the

Jackson reforms, the court had the power to deploy a range

of possible solutions in order to reduce costs and ensure that

the trial was conducted effectively.

Civil Procedure

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• Damages

• Civil Procedure

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The following considerations were relevant to the exercise of

that power: (a) Rule 32 had to be read as a whole. The court

had to use all the powers at its disposal to ensure the efficient

and fair conduct of the trial, and it would only consider

prohibiting the calling of witnesses after less intrusive

measures had been considered and rejected; (b) a court

seeking to regulate the nature and extent of witness evidence

would generally wish to do so at an early stage, before the

preparation of witness statements. At that stage it might also

be possible for the parties to identify matters which might be

admitted; (c) while the power to exclude or control witness

evidence was best exercised before the preparation of witness

statements, the court was not precluded from exercising it

after statements had been drafted; (d) before exercising its

power to prohibit the adducing of witness statement evidence,

the court had to have the fullest possible information,

adequate preparation time, and guidance from the parties as

to which parts of which statements were said to be otiose,

prolix, or otherwise inadmissible; (e) where the court did

exercise its power, it might be necessary to give the parties

liberty to vary the order by consent or to apply to the court for

a variation. In that regard, the court would be entitled to expect

a considerable degree of co-operation and good sense.

“...the court had thepower to deploy a rangeof possible solutions inorder to reduce costsand ensure that the trialwas conductedeffectively.”

A lack of co-operation could not be justified by an assertion

that the relationship between the parties' legal advisers was

not good. In the instant case, some form of case management

was required. One possibility would be to impose a process

which required the claimant to identify the specific facts and

propositions relied upon from the witness statements; the

defendant to identify which were agreed and disagreed; and

the claimant to indicate which witnesses he intended to call.

However, that was not appropriate in the instant case: time

was short, the parties had not exhibited any great ability to

cooperate, and there was a real risk that a process involving

multiple stages could delay the preparation for trial.

The preferable course was as follows. The claimant would be

permitted to call 14 witnesses to address the issue of

comparative earnings. That was the minimum number he

considered necessary, and the defendant did not demur. He

was to write to each forthwith requesting certain specified

details of their earnings, with supporting documentation. If a

witness declined to co-operate, the claimant was to write to

the defendant's solicitor, setting out the steps he had taken

and the response he received.

The claimant could call 14 additional witnesses to cover

matters other than comparative earnings. That was the critical

mass he considered necessary, and it was likely that their

evidence could be heard swiftly. Any fewer risked causing

injustice. The evidence of the claimant and his wife could also

be tendered. The claimant was to identify the witnesses and

serve any documents as directed; he could not rely on

statements from witnesses who had not been identified,

though there was nothing to stop him from seeking to rely

upon evidence following service of a valid hearsay notice if it

was proper to do so. Where any expert evidence relied on the

statements of individuals who were not on the list of identified

witnesses, there was no need for the experts to exclude

reliance on those witnesses. Finally, both parties had liberty to

vary the scheme by agreement or to apply to the court for a

variation.

Maclennan v Sindall (Infrastructure) Ltd (2013) EWHC 4044

(QB)

03

The case of Brown (deceased) v Hamid (2013) EWHC 4067

(QB) will be of interest to those dealing with fatal accident

cases.

The deceased had died in 2012. He had been ill for many years

but it was admitted that his death had been accelerated as a

result of the defendant’s clinical negligence. On the evidence

the judge found that the defendant’s failure properly to

diagnose the deceased’s condition had accelerated the onset

of more severe symptoms associated with his pre-existing

condition by a period of about 12 months.

Although damages for loss of expectation of life were not

recoverable, in assessing damages for pain and suffering the

court was entitled to take into account any suffering likely to

have been caused to the deceased by his awareness that his

expectation of life had been reduced. He had suffered

significant distress and anxiety as a result of the impact of the

delayed diagnosis on his health. The appropriate award of

general damages was £8,500.

An award of £11,800 was made for bereavement under the

Fatal Accidents Act 1976. Although funeral expenses were

usually recoverable under S3(5) of the 1976 Act, it was not

appropriate to make such an award in the instant case

because of the acceleration of symptoms associated with a

pre-existing condition by a relatively short period.

An award for loss of earnings based on a period of five years

and four months was made in the sum of £2,000 and loss of

DIY skills led to an award of £2,500. No award was made in

respect of care, medical fees, accommodation or travel as

there was no evidence that these had been increased as a

result of the defendant's negligence.

Although the principle of loss of special consortium had been

recognised in a husband and wife relationship, there was a

distinct overlap with the award of damages for bereavement.

Moreover, the case law demonstrated substantially longer

periods over which such a loss had taken place. In the

circumstances, it was not appropriate to found a separate

head of damages on that basis in the instant case.

“Although the principle ofloss of specialconsortium had beenrecognised in a husbandand wife relationship…itwas not appropriate tofound a separate head ofdamages on that basis inthe instant case.”

A second case under this heading is Humphrey v Aegis

Defence Services Ltd [Lawtel 15/01/2014]. It is very much a

case on its own facts but shows how insurance payments from

third parties may complicate the assessment of damages in a

personal injury case.

The claimant had been a member of the Royal Marines and

undertook close protection work in Iraq. He sustained

permanent shoulder injuries during a stretcher-carrying training

exercise after a team member dropped the stretcher. He

contended that the defendant should not have allowed the

team member to take part as he was unfit. The defendant

denied liability. The claimant had the benefit of UK insurance

payments which amounted to £31,000 and was also entitled

to insurance payments under US law, receiving $1,200 a week.

The claimant and the US insurer were negotiating a lump sum

to replace the weekly payments. He had made it clear that he

would give credit for any insurance payments made if he

succeeded at trial.

In this application for a split trial of the issue of liability the

claimant submitted that if he succeeded at the forthcoming

trial then the judge would be placed in the impossible situation

04

Damages

05

of determining quantum before a lump sum was agreed in

respect of the $1,200 a week. The judge would then have to

offset the weekly payments against any damages awarded,

and would be forced to make an order that would leave the

claimant significantly short of the amount that he would have

recovered if a lump sum had been agreed instead. The

defendant submitted that it would not be proportionate to

order a split trial as it was not known when the lump sum might

be agreed and the issue of quantum might be pushed off to

an unknown date in the future.

“...the claimant’ssubmission that hisdamages would besignificantly and unfairlyreduced if the court hadto quantify them withoutknowing what lump sumhe would receive from theinsurer was a strong one”

Allowing the application the deputy High Court judge held that

the claimant’s submission that his damages would be

significantly and unfairly reduced if the court had to quantify

them without knowing what lump sum he would receive from

the insurer was a strong one. Further, it was possible and likely

that if he was successful at a trial of liability, that quantum

could be agreed and a further trial would be avoided, along

with the associated costs. It might also force the parties to

come to an agreement on the lump sum prior to the trial of

quantum. If the defendant were to succeed at the liability trial,

then there would be no need for the quantum trial. On balance,

any duplication of work with regard to a second trial was small

compared to the advantages of a split trial. The claimant had

also argued that there was a risk that under US law the insurer

would seek reimbursement of damages recovered in the

action. However, as the claim was against the employer rather

than a third party, there was only a very small possibility of a

"double deduction". If that had been the claimant's only

submission then it would not have been sufficient to justify a

split trial. However, the difficulty of quantifying damages in the

absence of a lump sum meant that the application should

succeed.

Brown (deceased) v Hamid (2013) EWHC 4067 (QB)

Humphrey v Aegis Defence Services Ltd

[Lawtel 15/01/2014]

Two of the considerations that the recent reforms in CPR have

brought into focus are court resources and the impact of case

management decisions in one case on the parties in other

disputes. The significance of these is illustrated in the planning

case of London & Henley (Middle Brook Street) Ltd and others

v Secretary of State for Communities & Local Government and

others (2013) EWHC 4207 (Admin).

The parties to the dispute applied for an adjournment of the

hearing of the matter to allow time to reach a settlement. They

submitted that negotiation of the settlement had been

unusually complicated and time-consuming but was close to

completion, and if the court allowed the matter to reach finality

its time would not be used needlessly and subsequent

proceedings could be avoided.

‘…the effect of theadjournment… would bedamaging to somedegree to the interests ofparties in otherproceedings’

The High Court judge allowed the application finding that it

was realistic and just to adjourn the hearing in the exceptional

circumstances of the case. However, two points had to be

made. First, the effect of the adjournment would be that the

court's time could not be used to enable any other planning

case to be heard, at what would be extremely short notice.

Thus it would be damaging to some degree to the interests of

parties in other proceedings having access to the court, and

on the effective use of the court's resources. Second, the court

had to regard the case as effectively settled: that was the only

proper basis on which the adjournment could be granted. The

case would have no priority over any others: it would be dealt

with as if proceedings had been freshly issued. That would

mean that if there was any difficulty in effecting the settlement,

it would be several months before the case could come back

into the list. Parties had to understand that there were

consequences if the court was given no sensible choice but

to adjourn at the last minute.

London & Henley (Middle Brook Street) Ltd and others v

Secretary of State for Communities & Local Government and

others (2013) EWHC 4207 (Admin)

06

Civil Procedure

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