Legal Watch:Personal Injury30th July 2014Issue: 029

In This Issue:

• Liability/RTA

• Employers’ Liability

• Civil Procedure

• Article – The outcome of the long awaited review of the guideline hourly rates (GHRs) for solicitors’ costs.

Liability/RTA

Events

Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next few months:

The Major Bodily Injury Group (MBIG) | Spring

Seminar | 28.04.15 | The Wellcome Collection,

London

The case of Beaumont and another v Ferrer (2014) EWHC

2398 (QB) sees the court considering the doctrine of ex turpi

causa in relation to claims for personal injury.

The claimants, who were both 17, had formed a plan with

four other youths to take a taxi from Salford to Manchester

city centre and make off without paying the fare. When they

reached the city centre, three of the youths got out of the taxi

and ran off without paying. The defendant then drove on. The

claimants tried to get out of the taxi as it was moving, fell and

sustained serious injuries.

They argued that the defendant owed a duty of reasonable

care to his passengers, all comparatively young people, to

ensure their safety and well being; that the doctrine of ex turpi

causa did not apply, as there was no relevant turpitude: no

offence under S3 Theft Act 1978 had been committed, as

the defendant left the scene before he gave the group time

or opportunity to pay the fare; even if they were engaged in

criminal conduct leading to their injuries, the doctrine of ex

turpi causa did not apply in the circumstances of the case;

their offending was not of such gravity that it should engage

the public policy of ex turpi causa.

Rejecting the claims the High Court judge held that the

defendant had done nothing to put the claimants in the

position where they were poised to exit the taxi, and he did

nothing to lead to their decisions to leave the moving taxi.

Further, the execution of the criminal joint enterprise, with

three youths already having left the taxi and run away, put him

in a dilemma. He drove on partly because he wanted to do

something to impede the youths left in the taxi from exiting and

making off without payment; fear also played a part (he had

been stabbed during an attack by another group of youths). It

had been argued that at that point the defendant should have

allowed all the youths to leave the taxi and resigned himself

to the inevitable loss of the fare and the great unlikelihood

of any of the offenders being apprehended and sanctioned

for their wrongdoing. Even if he should have followed that

course and in not doing so was at fault, the failure followed

from the criminal intentions and actions of the youths, and

any degree of fault was simply overwhelmed by those

intentions and actions. Even if the defendant was in breach

of his duty of care by driving on as he did, that breach did

not cause the claimants’ injuries. The conduct of each of

them in jumping or stepping out of the taxi broke the causal

connection between such fault and the damage. This was a

case where justice was served by holding that the claimants

in substance brought about the injuries themselves.

‘The correct approach…was to ask whether the criminal act was no more than the occasion for the damage or whether the damage was caused by the criminal act...’The claimants had committed an offence under S3 of the

1978 Act by participating in a joint enterprise pursuant to

which their co-conspirators had already taken off without

payment. The correct approach to deciding whether the

doctrine of ex turpi causa applied was to ask whether the

criminal act was no more than the occasion for the damage

or whether the damage was caused by the criminal act; if

the latter was the case, the doctrine would apply. This was

a plain case where the damage was caused by the criminal

conduct of the claimants. That conduct was not carried

out on the spur of the moment. There was a plan jointly to

“jump” the taxi, and that plan was put into effect. Three of

the group had already left the taxi and taken off before the

defendant drove on. The claimants at that point had every

opportunity to recognise their dishonest intent, to reseat

themselves in the taxi and to travel on safely. Instead, they

deliberately chose to follow their companions in the carrying

out of the joint criminal enterprise, and in each case chose

to jump or step out of the moving taxi. Their only reason

for doing so was to evade payment of the fare. Applying

ex turpi causa here tended strongly to promote the public

policy that underpinned the doctrine. Dishonest evasion of

a taxi fare should not be dismissed as just another inevitable

expense of the driver, but should be seen for reasons of

public policy as a pernicious and reprehensible practice

that tended to erode the efficiency, and raise the costs, of

a service that was valuable to the community. It could also

risk public disorder if taxi drivers, responding to a crime that

was easily perpetrated but difficult to police, resorted to

their own counter measures.

In the circumstances, the claimants were in any event

precluded by the doctrine of ex turpi causa from succeeding

in their claims.

Employers’ LiabilityThe case of Sloan v Rastrick High School Governors (2014)

EWCA Civ 1063 provides a very detailed analysis of a claim

brought under Regulation 4(1) Manual Handling Operations

Regulations 1992. Cases of this nature are often difficult to

defend but here the defendant was successful.

The appellant/claimant had been employed by the

respondent/defendant as a learning support assistant.

Her work involved pushing pupils between classrooms in

their wheelchairs. She began work on 1 September 2008

and spent her first five days training and shadowing. On 17

September, she experienced pain after pushing a pupil in

her wheelchair on a flat surface. She saw her GP and was

prescribed pain relief. She left the defendant’s employment

some weeks later. She claimed that she had suffered a

soft tissue injury to her neck and shoulder, that she had

ongoing pain, and that the injury was the cumulative

result of her work up until 17 September. She claimed

that the defendant had not complied with its duties under

Regulation 4(1) Manual Handling Operations Regulations

1992. The recorder found that the claimant had suffered a

strain injury on 17 September, resulting in symptoms over

the next couple of weeks, and that any further symptoms

arose from unconnected degenerative changes. She found

no breach of the Regulations and ordered the claimant to

pay the defendant’s costs.

The claimant appealed and submitted that the recorder had

misdirected herself on the burden of proof; she had failed to

make a clear finding about whether the defendant could have

provided pupils with powered wheelchairs and thus avoided

the need for her to undertake manual handling operations

involving a risk of injury; she failed to make a clear finding

that the defendant had carried out a suitable and sufficient

risk assessment; she had failed to make a clear finding that

the defendant had proved that it had taken steps to reduce

the risk of injury to the lowest level reasonably practicable;

she had failed to find that the defendant had provided

information on the combined weight of each wheelchair and

student; she had erred in disregarding evidence about the

school’s layout and gradients; she had erred in preferring

the evidence of the defendant’s medical expert; she should

have awarded the defendants its costs only from the date it

disclosed its risk assessment.

Rejecting the appeal, the Court of Appeal held that under

Regulation 4(1), the employer had to prove that it had taken

appropriate steps to reduce the risk of injury to the lowest

level reasonably practicable, and that the employee’s injury

had not been caused by any failure to do so. The recorder

had misdirected herself by saying that the claimant had to

prove that the defendant had breached their Regulation 4

duties. However, that was not a basis for setting aside her

order. She had reached her conclusions on the evidence,

without any reliance on the burden of proof. She found that

while the claimant was selective in her memory and prone

to exaggeration, the defendant’s witnesses were impressive

and credible. With that in mind, she made firm findings of

fact and reached firm conclusions, correctly applying the

burden of proof at that stage.

Pupils used their own wheelchairs in school, and their

choice of wheelchair was based on medical and therapeutic

considerations. There was no evidence about the cost to

the defendant of providing powered wheelchairs. However,

there was evidence that requiring manual-wheelchair users

to use powered wheelchairs would be contrary to their

interests. The recorder addressed that, correctly finding that

it was not reasonably practicable to avoid the use of manual

wheelchairs.

‘..it was not reasonably practicable to avoid the use of manual wheelchairs’The defendant prepared an annual risk assessment for each

pupil who used a wheelchair, and the recorder found those

assessments to be suitable. The claimant’s complaint that

she had not also said they were “sufficient” was nit-picking. It

was clear that she considered, and was entitled to consider,

that they satisfied the requirements of Regulation 4. Clearly,

risk assessments had to be prepared by somebody with the

necessary training and experience. Although the employee

who prepared the assessments for the defendant was not a

health and safety officer, she was experienced and properly

trained.

The defendant had sought to reduce the risk of injury by

training, regularly rotating staff and keeping slopes to

acceptable gradients. The training, which the recorder

found to be full and adequate, covered the practicalities

of safe moving and handling in some detail. The safe

pushing of wheelchairs was neither difficult nor complex,

and the evidence justified the recorder’s conclusion that the

defendant had not breached its Regulation 4(1)(b)(ii) duty.

It was neither necessary nor appropriate for the defendant

to provide the combined weight of each student and his

wheelchair. In any event, their failure to do so was not

causative of the injury.

The recorder had correctly disregarded the evidence about

the school’s layout and gradients. Once she rejected the

claimant’s case that the injury was a cumulative one, that

evidence was irrelevant.

The recorder was fully justified in her findings as to the

nature and extent of the claimant’s injury.

The claimant’s challenge to the costs order amounted

to a claim that the only reasonable order was one which

penalised the defendant for its late disclosure of the risk

assessment. While the court could make a costs order to

mark its displeasure at a party’s conduct, that was not the

only reasonable response in the instant case.

Civil ProcedureA procedural complication which arises from time to time

was dealt with in the case of Symes v St George’s Healthcare

NHS Trust (2014) EWHC 2505 (QB).

The claimant had been referred to a consultant working

for the defendant trust because of a lump on his face. The

consultant reported that it was a pleomorphic adenoma but

in fact it was a malignant tumour. The claimant complained

that the consultant had failed to advise him that his lump was

suspicious of malignancy, and failed to arrange for an urgent

superficial parotidectomy to be carried out within two weeks.

He contended that those failures had resulted in metastasis

of the tumour to the lungs and invasion of the facial nerve,

which were diagnosed four months later, at which point he

had the required surgery. Before proceedings were issued,

the defendant admitted that the consultant’s report had been

wrong and that the parotidectomy should have been carried

out within two weeks of the consultant seeing him rather

than four months later. However, it denied that the delay had

affected the nature or extent of the claimant’s surgery or

post-operative treatment, or his subsequent development

of lung cancer or life expectancy. The claimant issued

proceedings, and relied on the defendant’s admissions. The

defendant did not serve a defence or acknowledge service

and the court ordered judgment in default. Following agreed

directions, the claimant served a schedule of losses and

the defendant served a counter-schedule which accepted

that the delay in the claimant having the surgery caused him

pain and discomfort, but disputed the other consequences

of the delay as claimed. The Master held that it had been

contrary to the overriding objective for the defendant to

allow judgment to be entered against it and then to serve

a counter-schedule that addressed allegations of causation

that should properly have been addressed within a defence

that should have been served weeks earlier, and he

struck out those parts of the counter-schedule that were

inconsistent with the particulars of claim.

The defendant appealed and submitted that, applying

Lunnun (1999), the default judgment should be regarded

as having established nothing more than that it had acted

negligently and that as a result the claimant had suffered

some, but not specific, loss and damage; it was inappropriate

to regard it as having already been determined, by dint of

the default judgment, that the defendant was liable to the

claimant for the losses claimed since that presupposed a

causation determination which the default judgment did not

entail.

‘...the default judgment should be regarded as having established nothing more than that (the defendant) had acted negligently and that as a result the claimant had suffered some, but not specific, loss and damage’Allowing the appeal, the High Court judge held that the

defendant’s position was correct, and any other conclusion

would be contrary to authority. The starting point was the

particulars of claim, which were to be regarded as a proxy

for the default judgment, in order to work out what that

judgment had decided. That approach was consistent with

the need to scrutinise a default judgment with extreme

particularity so as to ascertain the bare essence of what it

must necessarily have decided. The court, like the Master,

was bound to follow the approach in the authorities, including

Lunnun, which remained good authorities post-CPR. No

authority had been cited that held that a defendant could

not challenge causation in the face of a default judgment

where damages had been ordered to be assessed. As the

claimant recognised, in the assessment of damages phase

of proceedings it was open to a defendant to advance

arguments that the claimant should not be permitted to

recover to the extent of the amounts claimed. A defendant

had to recognise that “some damage” had been caused,

but did not have to accept that the actual damage alleged

by the claimant in his statement of case had been caused

by the alleged breach of duty. In any event, the defendant

had accepted that the claimant had suffered at least some

of the damage that he had alleged in the particulars of

claim. Therefore, the default judgment should be regarded

as having determined merely that there was some damage.

The Master was incorrect and therefore CPR 52.11(3)(a)

applied.

Although the situation that had arisen was regrettable and

should be avoided, the Master had been wrong to hold that

the defendant had acted in breach of the CPR and contrary

to the overriding objective. The CPR did not preclude

a defendant from contesting issues of causation in the

context of an assessment of damages hearing after a default

judgment on liability had been obtained. The defendant had

not been obliged to serve a defence setting out its case on

causation, and the Master should not have criticised it for the

way in which it had acted. CPR 16.5 and CPR PD 16 - 12.1

would come into play only if it was necessary or obligatory

for a defendant to serve a defence, which was not so in this

defendant’s case. However, it would have been better if it

had served a defence, and then it would have been apparent

to the Master that it was advancing a causation case. The

claimant’s solicitors knew all along that the defendant

intended to run a causation case, so its counter-schedule

was not some sort of ambush; the defendant had not acted

contrary to the overriding objective.

ArticleThe outcome of the long awaited review of the guideline hourly rates (GHRs) for solicitors’ costs.After several false dawns the Master of the Rolls (MR)

has finally made a decision following the review of GHRs,

which have not been adjusted since 2010. The outcome

is probably not one that was predicted by anyone: he has

rejected the proposals made. The principal reason for this

is the inadequacy of the survey on which the reviewing

committee had based its recommendations. As the MR

put it: ‘A relatively small non-randomised survey cannot

be a secure basis for determining what it costs solicitors

to run their practices. This shortcoming in the evidence is

fundamental’. He also expressed concern that the impact

of the Jackson reforms could not yet adequately be taken

into account.

The MR did agree with some of the committee’s

recommendations. There will be no change to the current

banding of fee earners from A to D by the addition of A*

and E. Nor should there be separate GHR bands specific

to specialist fields of civil litigation. The old arguments will

therefore roll on as to what are the appropriate hourly rates

to be charged by claimant personal injury practitioners. He

also accepted the recommendations to amend the criterion

for Grade A fee earners to includes Fellows of CILEX with 8

years’ post-qualification experience; and that costs lawyers

who are suitably qualified and subject to regulation be

eligible for payment at GHR Grades C or B, depending on

the complexity of the work. These changes will take effect

from 1 October.

What of the immediate future? There will be no change at

present to the 2010 rates and consideration will be given ‘to

see what steps can be taken to obtain evidence on which

GHRs can reasonably and safely be based’. In the absence

of a full and therefore expensive survey of the true cost of

running legal practices, it is difficult to see how the current

impasse can be broken.

The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 8 Bedford Park, Croydon, Surrey CR0 2AP. Parabis Law LLP is authorised and regulated by the SRA.

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