Legal Watch:Personal Injury14th May 2015Issue: 062

In this issue:

• RTA/liability

• Civil procedure/expert evidence

• Damages/interim payments

• Occupiers’ liability

RTA/liabilityThe decision in the case of Hicks (protected party) v Young (2015) EWHC 1144 (QB) can be contrasted with that in the earlier case of Beaumont and another v Ferrer (2014) which we reported in Legal Watch: Personal Injury 29. In Beaumont the defendant driver was held not liable in negligence to two youths who had sustained serious injuries after jumping out of his taxi as it was moving, even though he had chosen to drive on from a stationary position after realising that the youths did not intend to pay. That was a case where justice was served by holding that the youths had brought about the injuries themselves. In any event, they were precluded by the doctrine of ex turpi causa from succeeding in their claims.

In the present case the 23-year-old claimant sustained a severe brain injury when he fell from a moving taxi and hit the road surface. He had hired the taxi with his then girlfriend and asked to be driven home. Once there, as he stood up and was about to follow his girlfriend out of the vehicle, the taxi drove offwith thedooropen.Despite theclaimant’sprotestations,the defendant drove on towards the taxi rank where he had come from. It was the defendant’s case that the movement of the taxi caused the door to close and he thus thought that his passenger was safely in the back of the taxi until he deliberately chose to leave it. The taxi had a locking system, which only worked intermittently and which the defendant did not try to apply. He alleged that the claimant “jumped” from the taxi about three-quarters of a mile from home when the vehicle was travelling at something over 20mph. The reason why the defendant behaved as he did was that he had formed the view that the claimant and his girlfriend were not going to pay the fare; he raised the public policy defence of illegality, relying on the decision in Beaumont. However, during the trial he accepted that he might have been mistaken. He also stated that the claimant had seemed resigned to what was happening, and that there was nothing to warn him that the claimant was going to jump out.

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The defendant submitted that the claimant’s act, in jumping out of the taxi, was not a foreseeable consequence of his driving. Alternatively, that the claimant’s decision to jump out of the taxi was an intervening event which broke the chain of causation between any breach of duty by him and the damage sustained by the claimant.

Finding in favour of the claimant, the High Court judge held that the defendant drove from the claimant’s home with the claimant in the back when he had no right to do so. That caused the claimant to try to escape, which he did making a serious error of judgement about the level of risk to himself in jumping out of a taxi at 20 mph.

The claimant was not committing the criminal offence ofmakingoffwithoutpaymentwhenhesustainedtheinjuries,and accordingly the defence of illegality did not bar his right to damages.

‘...it was foreseeable that the claimant would want to escape and an attempt to do so would involve some level of risk of injury to him...’There was no doubt that at all times the defendant owed a duty to drive his vehicle with reasonable care for the safety of the claimant, and driving away while the claimant was standing up in the rear of the taxi with the door open was a breach of that duty. However, that action caused the claimant to sit down and did not cause him any injury. The injury occurred a few minutes later, at which time the defendant was not driving in an unsafe manner. It was foreseeable that the claimant would want to escape and an attempt to do so would involve some level of risk of injury to him. Accordingly, the defendant was in breach of his duty to drive his car with reasonable care for the safety of the claimant.

The taxi was not suitable for conveying prisoners safely, whether the detention of the passenger was lawful or not. The presence or absence of working locks was not decisive of the issue, but should have operated as a warning to the defendant of the risk that his prisoner might try to escape. The reason for the detention was not relevant to the negligence claim, at least on primary liability. It was certainly foreseeable that he would try to leave the taxi and that it might be moving when he did so. The fact that he might misjudge the risk and jump out at a very dangerous speed causing catastrophic injuries was less foreseeable, but it was foresight of the kind of damage which occurred, namely personal injury, which was required and not the precise mechanism by which it occurred.

Where the conduct which resulted in detention was part of the same series of events as the incident which caused the loss then the defence of contributory negligence arose, and this was such a case. The claimant’s conduct was careless, in that it involved a serious misjudgement of the level of risk, and was done because he had been unlawfully abducted and wanted to be at liberty, as he was entitled to be. In the circumstances, it was not an intervening act but was sufficientlycareless to justifyasignificant reduction in thedamages payable for negligence. Accordingly, the damages payable in negligence were reduced by 50%.

The claimant was abducted and unlawfully imprisoned and the defendant had to pay damages for the direct consequences of that deliberate act. The defence of contributory negligence was not available in respect of those damages. The claimant was entitled to the sum of £250 in damages, which was sufficient to mark the defendant’swrongful conduct leaving the injuries aside.

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Civil procedure/expert evidenceThe case of Lee v Colchester Hospital University NHS Trust [Lawtel 5/05/2015] looks at the court’s attitude towards an application to substitute one medical expert for another when the case was already close to trial. The defendant NHS trust applied to rely upon the evidence of a new expert witness at personal injury trial which was due to start shortly. The claimant applied to rely on his experts’ supplemental reports.

The claimant had brought a claim against the defendant aftersufferingaseriousspinalinjury.Thepartieshadbeengiven permission to rely upon expert evidence, principally the evidence of orthopaedic surgeons and radiologists. The trial was due to take place in two weeks. The defendant had had the report of its expert, a consultant musculoskeletal radiologist, for some time. The defendant then became aware that the expert had been dismissed from the NHS, although he remained in private practice and was still registered. The reason for his dismissal was not known. The defendant submitted that the expert’s credibility had been compromised and so it should be allowed to rely on a different expert report. The claimant submitted that thedefendant was expert shopping. Further, that the experts would no longer be like-for-like: the claimant, on the court’s previous directions, had instructed a specialist radiologist and the defendant’s new expert was not a specialist.

‘...in a case management decision, the court had to use its discretion and endeavour to stay true to the CPR’s overriding objective...’

The deputy High Court judge held that in a case management decision, the court had to use its discretion and endeavour to stay true to the CPR’s overriding objective; the later the application the less ready the court would be to allow it. Although the defendant should have applied earlier for permission to use a different expert, at that point it didnot know that chosen expert had been dismissed. Despite being late, the application had been made as soon as the situation was appreciated, and appeared genuine. It was clear that but for the dismissal, no question of a change of experts would have arisen. It was not an expert shopping case.

The overriding objective was to deal with cases justly, for both the claimant and defendant. To refuse the application would be to compel the defendant to call an expert where there was a clear question as to his credibility. Dismissal fromtheNHSwasanunusualstateofaffairsandalthoughthe reason for dismissal was not known, the matter would be explored by the trial judge and might have an impact on the expert’s credibility. The issue of equality of arms in reverse had been raised; the claimant had argued that their expert was a specialist and so might be seen as over-qualifiedsince the alleged breach of duty had not been caused by a specialist and had taken place at a district general hospital. However, the claimant was being over-sensitive; there was no reason why his specialist expert would not be able to put himself into the appropriate doctor’s position. It was just to permit the defendant to rely upon the new report, provided that the existing expert’s report was immediately disclosed to the claimant.

As to the claimant’s supplemental reports, the expert meeting had not yet taken place and it was appropriate to allow the claimant to rely upon them. That would allow the trial judge to preside over the trial with the complete evidence.

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Damages/interim paymentsIn the case of AS (an infant) v West Suffolk Hospitals NHS Trust and another [Lawtel 8/05/2015] we have another example of an interim payment application made expressly to facilitate the purchase of a property.

The claimant/applicant had severe microcephaly and developmental delay which was likely to become more obvious as he got older. He was not physically disabled and was an active child in many respects, but he had learning difficulties and his behaviour was sometimes difficult tomanage. Liability was not in dispute. An interim payment of £175,000 had already been made voluntarily. The damages trial was unlikely to take place before the end of 2016. The claimant’s case was that his parents needed to move to larger accommodation so that outside assistance could be provided for a proper care regime. He sought a further interim payment of £700,000. The defendant/respondent maintained that £500,000 was adequate.

ThedeputyHighCourt judgeheldthatoneof thedifficultaspects of the claimant’s case was that it was currently difficulttoaccuratelyconcludewhatsumhewouldrecover.He was still too young for any long-term conclusions to be made. His prognosis was less certain than in many other cases, so the amount of damages he would eventually receive was also uncertain. It seemed unlikely that another application for an interim payment would be made.

In ordering an interim payment a judge had to assess the likelyamountof thefinal judgment leavingoutofaccountthe heads of future loss which the trial judge might wish to deal with by way of a periodical payment order. The assessment had to be carried out on a conservative basis and a risk of overpayment should be avoided.

‘the court had to start on the basis that the claimant’s parents would be assisted if they could move to larger accommodation with available care’It seemed overall that the claimant was unlikely to recover less than £900,000. The court had to start on the basis that the claimant’s parents would be assisted if they could move to larger accommodation with available care. £700,000 was too much bearing in mind that the amount had to be assessed on a conservative basis and because oftheuncertainties.£650,000wassufficienttoenabletheclaimant to obtain proper care in the context of larger and better accommodation.

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Occupiers’ liabilityBuckett (protected party) v Staffordshire County Council [Lawtel 13/05/2015] is a case involving a detailed analysis of liability in a claim by a trespasser under the Occupiers’ Liability Act 1984. It is also another in a long line of cases which draws the distinction between the state of the premises and the nature of the activity giving rise to the injury.

In so far as it is relevant to this report the 1984 Act states:

1 (1)The rules enacted by this section shall have effect, in place of the rules of the common law, to determine —

(a) whether any duty is owed by a person as occupier of premises to persons other than his visitors in respect of any risk of their suffering injury on the premises by reason of any danger due to the state of the premises or to things done or omitted to be done on them; and

(b) if so, what that duty is.

(3) An occupier of premises owes a duty to another (not being his visitor) in respect of any such risk as is referred to in subsection (1) above if —

(a) he is aware of the danger or has reasonable grounds to believe that it exists;

(b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not); and

(c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.

When aged 16, the claimant had sustained severe personal injuries while trespassing on school grounds, on a weekend afternoon, with a group of other youths. The group had entered the grounds to play football. They had then spent some time climbing on the low roofs of the school and

breaking into and stealing from the tuck shop. Finally, in the early evening, the claimant and another youth had accessed the upper roofs and climbed over fencing separatingatransversesectionofflatrooffromapitchedroof. The transverse section had a number of skylights that were raised above the surface and consisted of panes of unstrengthened “Georgian” wired glass. On his return from the pitched roof, the claimant had climbed back over the fence and perched on a diagonal brace. He then jumped onto a skylight and fell through the glass. The defendant was responsible for the school and its grounds, and occupied the same for the purposes of the Occupiers’ Liability Acts 1957 and 1984.

The court considered the disputed evidence relating to the following issues: the likelihood of trespass on the school grounds; the ease of access to the flat roofs; and theschool’s approach to security and risk assessments.

Dismissing the claim the deputy High Court judge made the followingfindingsoffact

• It was foreseeable that youths, outside school time, would gain access to and trespass on the school grounds. There had been repeated, continuing and well recorded incidents of such trespass, there was relatively easy open access to the grounds and the evidence showed that youths often played football. Unsupervised youthsmightseekaccesstothesinglestoreyflatroofs

• Once on those lower roofs, it was an easy journey ontotheupperflatroofsanditwasforeseeablethatany trespasser seeking such access would come into close proximity with the skylights. While it was not foreseeable that ordinary trespassers would climb over the fencing to the pitched roof sections, it was foreseeable that such persons would climb onto the fencing and gain access to the diagonal brace, an obvious standing point

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• The group had progressed from benign trespass, to one intent on having reckless fun and then to criminal activity. By the time the group accessed the upper roofs that period of causing deliberate damage had ended

• It was likely that the claimant jumped down on the skylight thinking it would hold his weight and not with the intention of breaking it. The skylights were obvious, not defective or in need of repair, and clearly not meant to be walked on

• Thetransverseflatroofwasnotinitselfdangerous,notwithstanding the presence of the skylights. The claimant’s injuries arose from his own actions of jumping onto the skylight pane. The defendant did not owe the claimant any duty to control that activity as a trespasser, even though his presence in the vicinity of the skylight ought reasonably to have been foreseen

‘the court did not accept that the skylight…was a danger due to the state of the premises or things done or omitted to be done on them’In the circumstances surrounding the accident, what the defendant knew or ought to have known were not the key to establishing liability. Indeed, on almost all of the key factual issues, the court had found in favour of the claimant, yet, ultimately, his claimed failed as he had not established that the duty under S1 (1)(a) of the 1984 Act was engaged. The court did not accept that the skylight, in the context of its structure, makeup and location on the roof, was a danger due to the state of the premises or things done or omitted to be done on them. As no duty was owed to the claimant under the 1984 Act, and there was no other duty owed to the claimant as a trespasser, his claim was dismissed. To avoid any doubt, in the context of roof trespassers, under

S1(3)(a), the court did not find that the defendantwas orought to have been aware that the skylights, whether generally or in close proximity to the diagonal brace, posed any real danger. While the presence of youths by or on the diagonalbracewasforeseeable,thecourtdidnotfindtherisk of a youth jumping down from the diagonal brace onto the skylight was one against which the defendant might reasonablyhavebeenexpectedtoofferprotection.

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: 12 Dingwall Road, Croydon, CR0 2NA. Parabis Law LLP is authorised and regulated by the SRA.

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