Legal Watch:Personal Injury24h June 2015Issue: 067

In this issue:

• Public Liability

• Damages

• Damages/interim payments

• Jackson/Mitchell/Denton

Public LiabilityThe case of RXDX (a minor) v Northampton Borough Council (Defendant) and DXDX (Third Party) (2015) EWHC 1677 (Admin) looks at the liability of a local authority for injuries sustained by a child visiting a swimming pool at a leisure centre which it operated.

In 2002, when he was six years old, the claimant had visited the leisure centre with his father and older brothers. They could all swim but he could not. He was found lying at the bottom of the pool by another pool user, who removed him and took him to a lifeguard for resuscitation. The claimant survived but sufferedsignificantbraindamage.CCTVfootageshowedtheclaimant climbing out of the pool with his family but becoming separated from them.

One minute later he was seen to sit on the edge of the pool on his own, to turn so that his back was towards the water, and to lower himself into the water. That was the last time he was visibleontheCCTV.Hewasliftedfromthewateraboutthreeminutes later. Medical evidence was agreed that the severity of the claimant’s brain damage indicated that he had been submerged for at least 2 minutes and 40 seconds. There had been two periods of inadequate oxygenation: first a periodof complete lack of oxygen, and second a period of relative hypoxia due to the continuing presence of water in his lungs.

The claimant alleged that the defendant was vicariously liable for the failures of the four lifeguards on duty at the time to supervise the pool and exercise appropriate vigilance over him. The defendant brought Part 20 proceedings against the claimant’s father for failing to exercise proper parental care. The court was required to determine (i) liability and (ii) causation.

Findinginfavouroftheclaimant,theHighCourtjudgeheldthattheadvicepublishedby theHealthandSafetyCommissionentitled “Managing Health and Safety in Swimming Pools” defined good practice for public pools. Although the

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publication was not a statutory code, a material breach of its recommendations would constitute common law negligence. It stated that pools should be divided into zones to ensure that all areas were covered, and that each zone should be continuously scanned, both above and below the surface, in accordance with the “10:20 system”. That was an internationally recognised practice of scanning a particular zone using a 10-second sweeping action. Lifeguards had to be close enough to their zone to reach an incident within 20 seconds.

The defendant also had its own guidance regarding lifeguard duties. It was a very substantial but totally incomprehensible document. It said there should be two lifeguards, each watching the whole pool but with one focusing on the shallow end and the other the deep end. It said where each should be stationed, but it was not clear which one had which responsibility, or how the scheme would work in practice.

‘The lifeguards had breached their duty of care by failing to identify him as a child at risk…’None of the lifeguards gave evidence and their statements did not say how they had been trained or which zone had been allocated to them. The absence of evidence as to how thelocalauthorityhadappliedtheCommission’sguidancewas most unsatisfactory. Given the positions of the two lifeguardsasseenontheCCTVfootage,therewasnodoubtthat the claimant was never more than about seven metres from them. He had also been in the zone of two other lifeguardsstationedinraisedpositions.Atleasttwopairsofeyes should have been scanning him every 10 seconds. He should have been picked up during the scanning as a child of interest, especially as he was on his own. The lifeguards could not assume that he was a swimmer, or that he was under parental supervision. The lifeguards had breached their duty of care by failing to identify him as a child at risk

and by failing to keep him under observation and to continue scanning the water and pool bottom to satisfy themselves thathehadnotgottenintodifficultiesafterenteringthepool.

There was a causal link between the lifeguards’ breach of duty and the severe injuries sustained by the claimant. If the claimant had been rescued within 30 seconds or a minute of being submerged, there would have been a rapid recovery andthebraindamagewouldhavebeenavoided.Asitwas,once the claimant inhaled water into his lungs, hypoxia continued to cause him brain damage until the point at which he was intubated at hospital 30 minutes later.

The claimant’s father had not responded to the Part 20 proceedings against him. No judgment has been entered against him, as he was not covered by any insurance and he wasnototherwiseamanofmeans.Anorderwasmadeon6 October 2014 whereby he was deemed to have admitted his fault. If in due course his circumstances radically alter it might become appropriate to revive the claim against him. At thebeginningof the trial the judgeacknowledged thatshould the claimant win against the defendant he could make no finding against the third party in this action buthe fully understand why the defendant alleged that there was a very strong case against the father for failing to exercise proper parental care over this child. He seemed to have been entirely unaware of what was happening to the claimant at any stage until after he was brought out of the pool by another pool user.

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DamagesThe case of Harman (a minor) v East Kent Hospitals NHS Foundation Trust (2015) EWHC 1662 (QB) illustrates that arguments about the public funding of a claimant’s care are still taking place. However, the case also highlights a defendant’s limited prospects of winning on this issue.

Theclaimant(14)sufferedfromsevereautismandsignificantcognitive impairment as the result of his negligent post-birth management by the defendant. Proceedings were commenced in 2011 and the defendant admitted liability in 2013. In that year, the claimant moved to a residential carehomeprovidingspecialistservicesforthosesufferingfrom severe autism. In 2014, the local education authority agreed to fund his placement. The plan was for the claimant to stay at the home until aged 25. Experts instructed by the claimantandthedefendantwereconfident, inviewoftheappropriateness of the care home, that the local authority would continue to provide funding until he reached 25. His parents wanted the care home fees to be paid from an award of damages against the defendant rather than from local authority funding. When the claimant reached the age of 25, his parents wanted him to return home.

The defendant argued that (1) as the agreed evidence was that the local authority was paying the care home fees and those payments would continue to be made in the future, it should not be required to assume responsibility for those fees; (2) after the age of 25, it was likely that the claimant would be looked after in specialist residential care and that would be in his best interests.

‘The local authority would not continue funding if the claimant did not claim funding’

Rejecting the defendant’s submissions, the High Courtjudge held that the claimant’s parents had unequivocally expressed a preference that the care home fees should be paid from an award of damages against the defendant and that is how they would fund the placement in the event that thecourtmadeprovision for thesame.TheeffectofPeters (2010) wastoconfirmthattheclaimantwasentitledto pursue the defendant for those sums rather than have to rely on the statutory obligations of the local authority. By presenting the situation on the basis that the local authority would continue to pay the fees the trust was misstating the position. The local authority would not continue funding if the claimant did not claim funding. Peters gave claimants the option to elect to pursue the tortfeaser for such funding. Simply because funding was already being paid and would continue to be available if a claimant chose to take advantage of it did not avail a defendant.

Theclaimant’sparentsfoughtalonganddifficultbattletoobtain public funding for the care home and the issue was only resolved by taking the matter to a tribunal. Their wish to elect to take private funding was entirely genuine. There was no need for the court to adjudicate on whether or not that preference was reasonable.

The claimant’s parents had stated unequivocally that they wanted their son to move back home when he left the care home. Each case must be looked at on its own facts. There might be circumstances in which, however strong the desire of the relatives might be to have the claimant home, there were good reasons for taking a contrary course. The purpose of damages was to compensate the victim and not to accommodate the wishes of the family whatever inevitable personal sympathy one might have for them. On the other hand, the wishes of loved ones were by no means irrelevant. Ultimately, the court was of the view that reasonable compensation for the claimant must involve a private regime at home and in the particular circumstances of the case, a residential solution would not be reasonable.

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The determination and enthusiasm of the claimant’s parents to welcome him back to the family home when he left the care home was entirely genuine. The particular fortitude with which they had coped with the stresses and strains of looking after the claimant over the years was a strong measure of their dedication. It was not illogical that the claimant should move from an institutional regime to a private regime at the age of 25. His time at the care home could reasonably be expected to maximize his potential and prepare him for the rest of his life to the fullest extent.

Althoughthejudgedidnotexpresslydealwiththepoint,hisunderstanding was that the risk of ‘double-recovery’ would be dealt with by way of ‘an appropriately worded indemnity from (the claimant’s) Deputy’.

Asectionofthisjudgmentwastakenupbycriticismfromthe judge that ‘the expert evidence (in this case) in some respects fell short, particularly on paper, of providing the court with a level of assistance commensurate with the seriousness of the issue’.

The judge was critical of the length of reports generally and care experts in particular. He went on to say:

‘Against the background of longer and longer reports there is, however, little sign, in some cases at any rate, that the care and attention spent on analysis and opinion, as opposed to history and narrative, is being given commensurate attention and priority...’

It will be interesting to see whether other judges begin to pick up on this.

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Damages/interim paymentsAnotherareaofconcernfordefendantsisaclaimantseekinga substantial interim payment to fund an accommodation claim in a case where the final award of damages mayinclude periodical payments. In Cousins v Julius and another (2015) EWHC 1682 (QB) the claimant applied for an interim payment of £800,000 in her claim for damages for personalinjuryagainstthefirstdefendantuninsureddriverand second defendant, MIB.

The claimant had been severely injured when the firstdefendant drove into her: one of her legs had to be amputated above the knee and the other was seriously damaged. Liability had been admitted and the second defendant accepted liability to deal with the claim.

The claimant needed appropriately adapted accommodation for the rest of her life, together with prostheses for her legs and provision for care and assistance. The total of her claim for lump sum elements was £3,503,455. She had already received interim payments of £310,000. The assessment of damages trial was nine months away. The basis of the instant application was the claimant’s contention that she was in urgent need of funds to buy and adapt a house, and to relocate herself, her husband and young daughter to it. They were living in rented accommodation, where the landlord could serve notice to quit on two months’ notice, andwheretherewasadampproblem.Anexpertsurveyor’sevidence was that the claimant should buy a bungalow for about £450,000, with purchase costs of about £20,000, and adaptation costs of £292,672. The second defendant had offeredanimmediateinterimpaymentof£400,000.

The deputy High Court judge held that, following Eeles (2009),inassessingthelikelyamountofthefinaljudgment,it was appropriate to include future accommodation costs in the interim award. The assessment should be carried out on a conservative basis and the court should make an interim award on the basis of a reasonable proportion of that assessment.

Theawardforpain,sufferingandlossofamenitywaslikelyto be at least £115,000. There was no evidence to displace themajorityoftheclaimsforpastloss.Anawardof£20,000was likely for the purchase of a car. £150,000 was a very conservative estimate of what the trial judge was likely to award as a capital sum for the cost of adapting a property. Taking into account those allowances reduced the total of capitalclaimsto£1,056,836.Ninetypercentofthatfigurewas £951,152; subtracting the sum of £310,000 already paidproducedafigureof£641,152.Therewasareal riskthat that sum, allowed under Eeles stage 1, would not be enough to fund the claimant’s pre-trial expenses and the purchase and immediate adaptation of a suitable house.

‘...the court could confidently predict that the trial judge would order a capital payment greater than the sum…available under Eeles stage 1’There was clear evidence that by the time of trial the initial purchase cost of accommodation suitable for adaptation for theclaimant’sneedswasnot likelytobesignificantly lessthan £450,000 and might be more. Relocation costs would beabout£27,000.Adaptationcostswerealmostcertaintoexceed £200,000. In those circumstances the court could confidentlypredictthatthetrialjudgewouldorderacapitalpayment greater than the sum of £641,152 available under Eeles stage 1. If such a sum was not awarded, the claimant’s needs could not be met. Her current accommodation was unsatisfactory in several respects and she had a real and present need to move to alternative purchased accommodation. There was a real need for a greater lump sum, but not as much as the £800,000 she was seeking.

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The claimant’s schedule of loss in respect of future items exceeded £2m. Even if the eventual award for future loss, in addition to past loss, amounted to a fraction of the sum claimed, it would be likely to approach a capitalised value in excess of £500,000. It would be neither restrictive of the trial judge’s powers nor in any way indulgent to the claimant totakeafigureofapproximately£60,000under Eeles stage 2 to add to the £641,152. Rounding down, an interim award of £700,000 was made.

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Jackson/Mitchell/DentonFrom the relatively large number of cases that we are reporting under this heading it is beginning to look as though the post-Denton pendulum is swinging away from the robust approach of the immediate post-Mitchell era, certainly as farasclaimantsareconcerned. Anadded featureof thiscase, however, is criticism of the defendant for delaying in engaging in without prejudice discussions

The claimant wanted to serve two witness statements concerning her night-time care and what was recoverable in her schedule of loss and damage, an updated expert report and an amended schedule of loss and damage as a result of potential changes to her night-time care and her weight loss whichaffectedherlifeexpectancy.Thedefendantopposedthe supplementary evidence on the basis that the claimant had left it too late.

Allowing the application the High Court judge held thatthe statement concerning night-time care had been raised late but dealt with a narrow issue that had already been canvassed. There would be no prejudice in admitting that evidence. It would be troubling if the court did not have all the information necessary to try the case.

The other witness statement, from the claimant’s trustee, concerned an issue of law as to whether the trustee could recover what was in the schedule of loss and damage. The trial judge would need to know what the trustee had been doing in order to make that decision and so the trustee’s witness statement was necessary.

The schedule of loss and damage served in 2014 had since been amended due to the night-care issue and the claimant’sweightloss,whichaffectedlifeexpectancy.Theamended schedule would not prejudice the defendant and the trial judge should be able to deal with the claimant as she was now, rather than on the basis of out-dated information.

‘…taking into account Denton it was clear that the claimant’s failure to comply was not serious’The reports from the claimant’s care expert would be late, as would the report from the defendant’s expert owing to her personal commitments. The timetable had gone awry in part because of the claimant’s failure to pursue matters sooner, but also in part because of the defendant’s refusal to engage in without prejudice talks until May 2015. The instantcourthadtohaveflexibilitytodealwithmattersandtaking into account Denton it was clear that the claimant’s failuretocomplywasnotserious.ThefirststageofDenton had not been passed and therefore it was not necessary to consider the second and third stages.

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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