Legal Watch:Personal Injury28 May 2015Issue: 064

In this issue:

• RTA/liability

• Employers’ liability

• Civil procedure/expert evidence

• Damages

• Part 36

RTA/liabilityIn Buswell v Symes and another (2015) EWHC 1379 (QB) the claimant and his friend had been riding along a rural road whenhecollidedwithatractordrivenbythefirstdefendant,whohadbeenexecutingaright-handturnfromafieldontotheroad.Thefirstdefendanthaddriventhroughagapinthefieldhedge,ratherthanfromaproperlyformedexit.Theroadhadaspeedlimitof60mph.≠

The collision occurred just beyond the brow of a hill, overwhich drivers had no visibility until they were near the top. The firstdefendantacceptedthatmovingthetractorontotheroadwouldbrieflyblockthewholeroad,butsaidthatitdidnotoccurto him that it would pose a hazard to cars coming over the hill. He argued that he could not have done anything to avoid the accident,whichwascausedbytheclaimant’sspeed.Itwastheclaimant’scasethatthefirstdefendantshouldhaveusedanalternativeaccesspointtoandfromthefield.

Due toaclericalerroron thepartof thefirstdefendant thetractor was not insured and the MIB was joined as second defendant.

Finding in favour of the claimant on primary liability the High Court judge held that the first defendant’s evidence wasunsatisfactory in material respects: he had given inconsistent versionsofhowoftenandforhowlonghehadworkedinthefield;hehad incorrectlystated that therewasnoalternativeaccesstothefield;hehadsaidthatthefieldhadbeenfencedoffbybarbedwirewhentheevidenceshowedotherwise;andhis excuses for not using alternative exits which posed less of ariskwerenotsupportedbytheevidence.Hehadappreciatedtheriskthathewastakingwhenhedrovehistractoroutontotheroadfromtheexitheused.Heknewmotorcyclistsusedthatroad.Eitherheforesawthedangerandtooktherisk,orhe did not foresee it when he should have done. He had been negligent.

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‘The claimant…had been running a very great risk of colliding with anything that might have been in the road over the hill’However, the claimant had been driving too fast; expertevidence put his likely speed as close to 70 mph. Thedangers of driving at speed over a blind summit were obvious.Theclaimanthadknown,orshouldhaveknown,thehazard.Hehadbeenrunningaverygreatriskofcollidingwith anything that might have been in the road over the hill. The court accepted that he had not been aware of the exit fromwhichthefirstdefendant’stractoremerged,butitwasnot unusual to encounter slow-moving agricultural vehicles drivingoutoffields.Thecollisionhadbeencausedbythefirst defendant’s negligence, for which the claimant wastwo-thirds contributorily negligent.

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Employers’ liabilityAlthough Vaughan v Ministry of Defence (2015) EWHC 1404 (QB) concerns a claim by a member of the armed forces,thereareanumberofissuesinitthatareofgeneralrelevance.

Theclaimant,amarine,hadattendedanadventuretrainingexercise on sailing. On the last morning of the trip the marines had been told by their superior that they were free todowhattheywanted.Theclaimantandfivecolleagueswenttothebeach,wheretheclaimantenteredtheseaandexecutedashallowdive.Hestruckhisheadonsomethingandfracturedhisspine,resultinginincompletetetraplegia.The claimant’s case was that his injury had been caused by thedefendant’sbreachofduty,thedefendantowinghimaduty of care qua employer by virtue of S2 Crown Proceedings Act 1947. The issues were whether (i) the marines had been ondutyatthetimeoftheaccident;(ii)theclaimanthadbeenactinginthecourseofhisemployment;(iii)therehadbeena breach of the duty owed to the claimant.

Inrelationtothesecondissue,theclaimantsubmittedthathe had been at the beach in order to exercise and that as thatwassomethingexpectedofamarine, itwasat leastreasonablyincidentaltohiswork.

Dismissing the claim, the High Court judge held that thedefendant’s duty covered the performance of the workdone by the claimant and anything reasonably incidental to thatwork. If his activitywas outside the course of hisemployment, the defendant owed no duty qua employer.Had the claimant been on duty that would have been indicative of a continuing duty qua employer owed by the defendant,althoughafindingthathewasnotondutywasnotdeterminativeagainsttheclaimant.However,theclearconclusion from the evidence was that the marines were not on duty at the time of the accident. Their superior had given no instruction at all as to what they should do in their free time. He had not even been sure where the marines had gone,letalonewhattheyweredoing.

‘…the general principle (was) that something reasonably incidental to the work would fall within the scope of employment’Whether the claimant was acting in the course of his “employment”wastobedecidedonthefacts,applyingthegeneral principle that something reasonably incidental to theworkwould fallwithin the scopeof employment. Thefactthatamarinewasrequiredtobephysicallyfitcouldnotmeanthatwheneverheundertookexercisehewasactingin the course of his “employment”. That would mean that thedefendanthad to takeaproper riskassessmentevenif theexercisewasbeingundertakenwhenamarinewason holiday and the scope for the defendant’s duty would bealmostlimitless.Inanyevent,theevidencewasthattheclaimant had not gone to the beach to exercise as part of hisrequirementbythemarinestokeepfit:themarineshadnot told theirsuperiorwhat theyweregoingtodo;notallof themarineshadexercised; and itwasnot clearwhichof them had entered the sea. The claimant had gone to the beach in order to relax and enjoy his free time. While some ofthemswam,theydidsobecausetheywereyoungmenwho enjoyed exercising. It did not constitute part of their “employment”.

There had been no breach of duty. The proper parallel to be drawn was that of an occupier owing a common duty ofcare.Theclaimanthadsaidthatheknewatthetimeoftheaccidentthattherewasariskofinjuryifonedivedintoshallow water. He had had a genuine and informed choice as to how he entered the sea, he was not acting in thecourseofhis“employment”,andhewasnotsubjecttoanylackofcapacity.Hehadassessedwhether itwassafe to

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do what he did before he dived into shallow water and had misjudged the situation with catastrophic results.

In view of those conclusions, the issue of contributorynegligence did not arise.

This decision may be contrasted with that in Radclyffe v MOD (2009) in which the defendant was found to be vicariously liable for the negligence of an army captain who owedadutyofcaretojuniorofficersandmeninanoffdutysituation and whose breach of duty resulted in a second lieutenantsufferinginjurywhenhejumpedoffabridgeintoalake.

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Civil procedure/expert evidenceThe case of Team Texas SAS and others v Wang [Lawtel 21/05/2015] is a reminder that expert evidence should only be permitted by a judge case managing a claim where it is ‘reasonably required to resolve the proceedings’ and assists the trial judge on matters outside his expertise.

The claimant/respondent had been involved in a road trafficaccident,which resulted in thedeathof oneof hissonsandtheothersonsufferingseverebraininjuries.Thesonthatsurvivedhadbeeninacarseat,manufacturedbythefirstdefendant/appellants,whichbecamedetached inthe collision. It transpired that the claimant had incorrectly installed the car seat. The surviving son brought a claim against theclaimant, receivinga lumpsumof £2.3mandsubstantial periodic payments.

The claimant sought a contribution from the defendants on the basis that the car seat instructions, andwarningssuppliedwere inadequate, ambiguous, lacked clarity andwere defective for the purposes of S3 Consumer Protection Act 1987. He applied for permission to adduce the expert evidenceofanergonomist,toassistthecourttoassesstheclarity of the car seat instructions and whether following those instructions the seat could be safely installed. The Master granted permission.

The defendants submitted that the question of the clarity of the instructions was not a matter on which expert evidence was not reasonably required in accordance with CPR 35.1.

‘…it was obvious that no sensible contribution that any expert made would go to the key issue...’

Allowingtheappeal,theHighCourtjudgeheldthatthecourtwas not persuaded that an ergonomist was appropriately qualified to interpret car seat instructions with a view tostating whether they enabled a car seat to be satisfactorily installedsoastoserveitsintendedpurpose.However,evenifanergonomistwasmorequalifiedthanotherexperts togive a view, it was obvious that no sensible contributionthat any expert made would go to the key issue whichwas whether a person of reasonable intelligence who was tolerably familiar with the English language could follow the car seat instructions. What was important was whether the instructions were such as to enable people of general intelligence to install a car seat. That was a question for the trial judge and one could suppose that a judge had a general level of intelligence and was tolerably familiar with the English language. The master’s decision was so plainly wrong that it was outside the wide ambit of her discretion.

The second case under this heading is another in a series inwhichcourtshavebeenaskedtoconsiderapplicationsto serve expert evidence late in the proceedings. Whereas many such applications would probably have failed in the post-Mitchell pre-Dentonperiod, it isbecomingclear thatpost-Denton each will be considered on its merits.

In the personal injury case of Marchment v Frederick Wise Ltd and another [Lawtel 26/05/2015] the claimant applied for relief from sanctions for the late service of an expert engineer’s report, and permission to rely on an amendedschedule of loss and expert medical evidence. The second defendantapplied forsummary judgmentand/or tostrikeout the claim.

The claimant had brought the claim for personal injury against the defendants arising out of his alleged exposure to asbestoswhileworkingforthem.Thetrialwaslistedfor16June 2015 and directions were given: a joint medical expert had been agreed on to give medical evidence concerning the value of lung tissue reports, and the claimantwas toserve an engineer’s report and an updated schedule of

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loss by 13 February 2015. Neither were served on time as the claimant’s solicitor had mis-diarised the due dates. An amendedscheduleof losswasservedalmost twoweekslate and included an additional claim for £4,000, and theengineer’sreportwasservedfourweekslate.

The claimant applied for relief from sanctions soon after,accepting that his breaches had been both serious and significant. The second defendant and claimant’sengineeringexpertsbothdealtwithcausationbutdifferedin their calculations of the claimant’s exposure to asbestos fibres using the Helsinki criteria. The second defendantcriticised the claimant’s expert report, stating that it wasdeficientandinadequatetoestablishliability.

Allowing the claimant’s applications the deputy High Court judge held that there was clearly a dispute between the two engineering reports as to the claimant’s level of exposure to asbestos. That was a triable issue and the level of exposure might well turn on oral evidence. For that reason the second defendant’sapplications tostrikeout theclaimant’sclaimand/or obtain summary judgment failed.

Relief from sanctions would be granted as result of:

• the non-culpable nature of the solicitor’s error

• theabilitytocomplywiththeMaster’sdirections,albeitlate,hadtheseconddefendantnotopposedtheclaimant’s applications

• thefataleffectoncausation.

Allowing relief from sanctions meant vacating the trial date. However, the trialwouldbe relativelyshortand,given thelengthyperiodof notice, thecourt couldallocate the trialdate to another case and relist the trial for a time in the not-too-distant future.

The medical report concerning the lung tissue was an importantmattergiventheweaknatureoftheevidenceoncausation in the claimant’s expert report. It was potentially of great probative importance and so permission to rely on that report was granted

The claimant’s applications were granted but he was required to pay the second defendant’s costs in his successful applications and their dismissed applications.

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DamagesAlthough HS (a minor) v Lancashire Teaching Hospitals NHS Trust (2015) EWHC 1376 (QB) is a clinical negligence case onitsownfacts,itcontainsanumberofpointsofgeneralinterest in relation to quantum.

The claimant was eight years old and had been born at a trust hospital. The hospital’s negligent failure to recognise that she had a streptococcal infection at birth led to her suffering a catastrophic brain injury. As a result, she hadno independentmobility,wasdoubly incontinentandwasentirely dependent on others for all aspects of daily living. She was profoundly developmentally and cognitively impaired,hadnospeechandlimitedsight,andmanifestedserious behavioural problems. She was expected to survive until the age of 49 with no improvement in her condition. She lived at home with her parents and two younger siblings. In March2014,acomprehensivecareregimewasintroducedwhereby an agency provided two full-time carers during the dayandoneatnight.InSeptember2014,thefamilymovedto larger accommodation.

The defendant admitted liability. Many heads of loss were agreed but the court was required to determine the damages recoverablefor(i)futurecare;(ii)caremanagement;(iii)lossofearnings;(iv)holidays;and(v)hydrotherapy.

Assessing quantum the High Court judge held that as to futurecare,itwasagreedthattwofull-time,day-timecarerswould be necessary once the claimant reached adulthood. The court determined that the cost of two full-time carers during the day was also necessary, proportionate andrecoverable throughout the claimant’s childhood and teenage years. Shewas profoundly disabled,moving herrequiredtwocarers,andthepointsatwhichtwocarersmightbe necessary were wholly unpredictable. It was unrealistic to suppose that the parents would always be available: theybothhadfull-timejobs,bothhadsufferedfromcarpaltunnelsyndromeandtwoothersmallchildrentolookafter.Twonight-timecarers,onewakingandonesleeping,wouldalsobenecessarythroughoutthechild’s life,anditwould

be neither reasonable nor proportionate to expect one of the parents to act as the sleeping carer. The judge found that the claimant was ‘entitled to recover what is reasonably necessary for her proper care and that, if that means the provision of care is not always utilised to full capacity, this is something the defendant must bear’. The cost of providing suchcarerswasthereforerecoverable,withanupliftforthedisturbanceofthesleepingcarerequivalenttofourweeksperyearuntiltheclaimantreached19,andtwoweeksperyear thereafter. A 14:10 division between day and night care after the claimant’s 19thbirthdaywas appropriate.While,theclaimantwouldnotbefunctioningasanadult,thelongerday was appropriate for an adult. Future care costs were to be paid on a periodical payment basis.

AcaremanagerhadbeeninplacesinceOctober2013,andthe care management costs from her appointment covered theperiodbeforethesettingupofthecarepackage.Takingthatintoaccount,sheestimatedon-goingcostsof£17,000peryear.Thatwassupportedbytheclaimant’scareexpert,who based continuing care management costs on 10 hours permonth plus 20 hours contingency per year. However,there was force in the defendant’s argument that if an agencywassupplyingthecarers,thecaremanagerwouldbe spending less time on that aspect of the claimant’s care. Onthetotalityoftheevidence,thecaremanagementcostsuntiltheclaimant’s19thbirthdaywouldbe£12,094peryear,withanannualcostof£15,360thereafter.

‘No deduction would be made (from the loss of earnings claim) for the cost of travelling to and from work’

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Theclaimantwouldneverbecapableofwork,but itwasimpossibletomakeanyconsideredassessmentofwhatshemight have done but for her condition. She was assessed as having been in the average to good average range of intellectual ability. Her case was therefore properly put on the basis of the most recent ASHE figures. The parties’calculationsresultedinlumpsumsofbetween£223,063and£327,511.Arelativelybroad-brushlumpsumapproachwasappropriate,andthecourtwouldthereforeaward£300,000.No deduction would be made for the cost of travelling to andfromwork.ThedecisioninEagle v Chambers (2004) did not establish any principle that such a deduction should be made.Indeed,perDews v National Coal Board (1988) such a deduction was not to be encouraged.

The claimant’s disabilities meant that holidays would cost more than they otherwise would have done. Her parents tookonelengthytriptoIndiaeachyeartovisitfamily,andthey claimed an additional annual cost of £4,000, plus£6,897 forotherholidays.While theclaimantwasentitledtotheadditionalcostofholidays, itwasdoubtfulwhetherthatcostwasashighasthepleadedfigure.£5,000peryearwas appropriate.

Theprovisionofahydrotherapypoolatthefamilyhome,atacostofsome£250,000,wasnotreasonableasaspecifichead of damage. No established therapeutic benefit wasclaimed,thecasebeingputonthebasisthatbeinginthepoolwasoneoftheclaimant’sfewpleasuresinlife.However,the guiding principle had to be her reasonable needs arising from her condition, not merely the provision of pleasure.Whiletheclaimantwouldmakesomeuseofahomepool,aprivatehydrotherapypoolwasavailablelocally,andthecostoftwice-weeklyvisitswasrecoverableforlife,capitalisedat£125,000.

General damages for pain, suffering and loss of amenitywould be approved at £305,000. Although the child’sawarenessofherpredicamentwaslimited,thescaleofherdisability called for an award at the upper end of the range for injuries of maximum severity.

Part 36The case of Purser v Hibbs and another [Lawtel 21/05/2015] looksattheoperationofPart 36 where a claimant accepted anofferafterexpiryof therelevantperiodand in the lightof surveillance evidence. It also contains some interesting comments by the judge about a defendant’s righ to recover thecostofsurveillance,eventhoughitwasnotincludedinhis costs budget.

Theclaimanthadsustainedinjuryinaroadtrafficaccidentcaused by the defendant. The defendant admitted liability. Before commencement of proceedings, the defendant’sinsurer conducted two periods of surveillance around the claimant’s home in 2011 and 2012, neither of whichdemonstrated anything inconsistent with the claimant’s account of the extent and impact of her injuries. In July 2013 the defendant made a Part 36offerof£95,000,whichfelltobe accepted in August 2013. The claimant did not accept theofferwithintherelevantperiodbutinsteadcommencedproceedings.

The defendant’s insurer conducted a third period of surveillance in spring2014,which revealed thatwhile theclaimantdisplayedphysicaldifficultywhenathomebyusingcrutchesandawheelchair,shewouldgotoa farmwhereshe would ride her horse and act with full physical ability. In October 2014 the defendant disclosed the surveillance evidence and the claimant duly accepted the extant Part 36offer.

The issue was whether the normal costs consequences of late acceptance of the Part 36 under CPR 36.13(5) should apply. It was common ground that the defendant should be entitled to his costs following expiry of the Part 36offer;thequestionwaswhether,asperthenormalrule,theclaimantshould be entitled to her costs up to that date.

The defendant argued that the court should find that theclaim had been dishonestly exaggerated to a considerable extentforaconsiderableperiod,andthatitshouldrelyonthat conclusion to disapply the normal costs rule and order

that he should be allowed his costs both before and after thedateofexpiryoftheoffer.

The deputy High Court judge held that despite the variation in wording between the old CPR 36.10(5) and the new 36.13(5),and inparticular thenewreference towhether itwas“unjust” todisapply thenormalcostsconsequences,the new rule had not materially changed the proper approachtobetakenbythecourtswhendecidinghowtodeal with costs where there had been a late acceptance of a Part 36 offer.Theappropriatetestwaswhether,bearinginmind the factors listed under CPR 36.17(5) the usual costs rule should be departed from because it would be unjust to apply it in the particular circumstances.

On the basis of the 2014 surveillance material and the defendant’s expert evidence, and in the absence of anyevidencefromtheclaimant,thecourtwassatisfiedthatinspring 2014 and thereafter the claimant had a considerable range of physical ability andwas suffering from relativelylittle, if any, disability. At that time she would have beenabletoworkandcareforherself,andshewasdeliberatelymalingering by pretending when at home that her physical condition was much worse than it was. She had been party to misleading both her own and the defendant’s lawyers and experts in order to advance a false and grossly exaggerated claim.

Itwasmorelikelythannotthatherpatternofdeceitextendedback some time before the 2014 period of surveillance,namelyasfarasAugust2013,whenthePart 36offertookeffect.However, thedefendant had failed to demonstratethatherdeceitextendedbackmaterially into thepre-Part36 offer period. Of particular relevance were the earliersurveillance evidence, which had not indicated that theclaimant displayed more physical ability in 2011 and 2012 thanshethenclaimedtohave,thefailureoftheexpertsatthattimetodetectanysignsofmalingeringorexaggeration,and the fact that the claimant’s symptoms had always been said to have some psychiatric origin. The defendant was

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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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inviting the court to infer that because the claimant had beendeceitfulin2014,itwasmorelikelythannotthatshehadalsobeendeceitful in2011,2012and2013.Thatwasundoubtedlypossible,butthedefendant’scasewasbasedonmereinferenceandwasnotsufficientlystrong.

Further, it was relevant that the defendant could haveprotected himself by withdrawing the Part 36 offer whendisclosing the 2014 surveillance evidence. Having failed toadopt thatcourse, itwasnoteasy forhim tocomplainnow that it would be unjust to apply the normal costs rule. In thosecircumstances,applying theappropriate test, thedefendant had failed to show that it would be unjust to disapply the normal costs order.

It was appropriate to stigmatise the claimant’s deceit by directing that the defendant’s costs incurred since the expiry date be assessed on the indemnity basis, plusinterest. It was also appropriate to direct under CPR 44.2 that the defendant should be allowed his reasonable costs ofthe2014surveillance,assessedontheindemnitybasis,notwithstanding that those costs had not been listed in the costs budget. The costs budgeting rules made no express provision for what should be done with regard to the costs of surveillance evidence. Whereas most litigation was conductedonacards-on-the-tablebasis,somedegreeofcunning was required in the administration of surveillance evidence. The court would not wish to do anything to discouragethejudicioususeofsurveillanceevidence,ortoalertfraudsterstotheuseofsurveillance.Inthatrespect,thecourtdifferedfromthenoteinthecurrentWhite Book which suggested that some allowance for surveillance should be made in a defendant’s costs budget.