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Harrington Hearsay Newsletter

18th March 2008

ISSUE 19

TORT

Smith v Chief Constable of Sussex Police
[2008] EWCA Civ 39; [2008] All ER (D) 48 (Feb)
Negligence – duty of care – investigation of crime – Art. 2, 3, 8 ECHR
CA: the claimant had complained to the police on several occasions about the threatening behaviour of a former partner. The police took no action in response to these complaints and the claimant was subsequently attacked and seriously injured by his former partner. The court considered whether a negligence claim against the police in these circumstances is affected by the Human Rights Act 1998, specifically Articles 2, 3 and 8 of the ECHR. There was no bar to actions against the police but a high degree of proximity was currently required for the existence of a duty of care. The ECHR and the common law approaches could be characterised differently and the law of negligence has to develop in the light of the incorporation of the ECHR. The question of the existence of a duty of care can therefore require a consideration of Article 2. On the pleaded facts, the case should not be struck out as there is a point at which police officers must assume responsibility towards an individual and act accordingly.

Pritchard Joyce & Hinds v Batcup and another
[2008] EWHC 20 (QB); [2008] All ER (D) 62 (Jan)
Negligence - Civil Liability (Contribution) Act 1978 – solicitor and counsel
HC: the claimant solicitor had settled a negligence claim resulting from advice given to a client. The defendants were counsel who provided advice on the same matter and the claimants alleged that they too were negligent resulting in the same loss and sought a contribution under s.1 Civil Liability (Contribution) Act 1978. Both defendants had breached their duty of care to the client because of their failure to advise of the existence of a claim and the risk that it would become time barred, something which a reasonably competent practitioner should have recognised. Under s.2 Civil Liability (Contribution) Act 1978 the court assessed the relative responsibility of the claimant and the defendants and, because the solicitors had looked to counsel for advice on major strategic issues relating to the litigation, counsel bore the greater responsibility for the negligence. The defendants were therefore liable for 75% contribution to the settlement and the costs of the client. 

Bollito v Arriva London
[2008] EWHC 48 (QB); [2008] All ER (D) 75 (Jan)
Negligence – duty of care – contributory negligence
HC: the claimant had climbed onto a slow moving bus and then, as the bus accelerated, had been trapped by the door of the bus and fallen backward into the road sustaining significant injuries. The reasons for and cause of the accident were disputed and the defendant argued that the claimant’s behaviour was such that he had created a situation of danger from which the driver could not have made him safe so the claimant’s contributory negligence was 100%. On the evidence, as the driver had closed the doors of the bus whilst the claimant was still in the way and had accelerated once he had done so, thereby endangering the claimant the defendants were liable for the whole of the damage.

EMPLOYMENT

Allison v London Underground Ltd
[2008] EWCA Civ 71; [2008] All ER (D) 185 (Feb)
Health and safety training – Reg. 9, Management of Health and Safety at Work Regulations 1999 (SI 1999/3242)
CA: Reg. 9 requiring adequate training of employees in relation to health and safety and the appropriate use of work equipment imposes a duty on the employer to investigate, with appropriate professional advice, risks relevant to the scope of his operations. What the employer ought to have known about the risks will be equated to what he would have known had he carried out an appropriate risk assessment, identifying risks against which employees need training. The adequacy of the training provided will be assessed in the light of what the employer ought to have known about the extent of these risks.

COSTS

Palmer v Palmer and others
[2008] EWCA Civ 46; [2008] All ER (D) 71 (Feb)
S.51 Supreme Court Act 1981 – costs awarded against insurer
CA: the defendant was liable for personal injuries arising from a defective product.  Costs could be awarded against the party who had insured the defendant because, in reality the insurer had defended the claim, not the defendant who had no commercial interest in pursuing the claim and had not been consulted on the conduct of the litigation.

Lobster Group Ltd v Heidelberg Graphic Equipment Ltd and another
[2008] EWHC 413 (TCC); [2008] All ER (D) 88 (Mar)
CPR Pt 25 – s. 51 Supreme Court Act 1981 – security for costs – pre-action mediation
HC: as a matter of principle, pre-action costs can be the subject of an application for security but the court should be slow to award them as the costs may be extensive if the pre-action period is lengthy. Costs incurred in a separate pre-action mediation more than two years before cannot be described as costs incidental to the proceedings under s.51 Supreme Court Act 1981 and are not recoverable. An order for security on pre-action costs would therefore not include the costs of the mediation.

DAMAGES

Thompstone v Tameside and Glossop Acute Services NHS Trust and other appeals
[2008] EWCA Civ 5; [2008] All ER (D) 72 (Jan)
S.2 Damages Act 1996 – periodic payments – appropriate index to be used
CA: under s.2 Damages Act 1996 in cases where the claimant has ongoing care needs the court is required to consider whether to issue a periodic payments order for damages. The court has to consider whether issuing this type of order is appropriate in the circumstances to meet the claimant’s needs in a broad sense, not just immediate necessities. This is an objective test based on the claimant’s needs, not what they would prefer. It will only rarely be appropriate for a defendant to call expert evidence to establish the order preferred by the claimant will not meet his needs and the court must require demonstration of this before allowing the evidence to be adduced. When considering the index used for tracking wage inflation of carers as an alternative to the RPI under s.2(9), the relevant factors include the accuracy of the match of the data with the expenditure to be compensated, the authority of the data collector, the statistical reliability, reproducibility, accessibility, consistency over time and its simplicity and consistency in application. In these cases the AHSE 6115 was an appropriate index.

Corr (Administratix of the Estate of Corr (deceased)) v IBC Vehicles Ltd
[2008] UKHL 13
Remoteness – suicide – contributory negligence – s.1, s.5 Fatal Accidents Act 1976
HL: the deceased had committed suicide whilst suffering from a depressive illness caused by a work related accident. In these circumstances under s.1(1) Fatal Accidents Act 1976 the deceased’s suicide was caused by the breach of the employer’s duty, which embraced both physical and psychological harm, and damages were recoverable as the psychological harm resulting in the suicidal act was reasonably foreseeable. However, as the deceased still had an element of responsibility for his death despite suffering from a depressive illness, the level of damages could be reduced under s.5 Fatal Accidents Act 1976.

Williams v Welsh Ambulance Services NHS Trust and another
[2008] EWCA Civ 71; [2008] All ER (D) 221 (Feb)
S.3 Fatal Accidents Act 1976 – dependents – family business remains successful
CA: the deceased had run a successful business before his death which had been taken over by his family and had thrived since his death. Under s.3(1) Fatal Accidents Act 1976 the claimant has to show that the death resulted in loss to their dependents. This may mean actual financial support has been lost, but it is sufficient to show that the claimant had an expectation of future benefit from the deceased which has been lost. Dependency is fixed at the point of death as the benefit the dependents would have received had the deceased lived and is not influenced by subsequent events.

LIMITATION

A v Hoare and other appeals
[2008] UKHL 6
Trespass to the person – limitation period – s.2, s. 11, s.14 Limitation Act 1980
HL: intentional trespass to the person is an action within the meaning of s.11 Limitation Act 1980, not s.2 Limitation Act 1980, Stubbings v Webb [1993] AC 498 overruled. For the purposes of s.11, the date of knowledge of a ‘significant injury’ under s.14(1), as defined by s.14(2),(3) Limitation Act 1980 is assessed by asking whether a reasonable person with the knowledge that the claimant had would consider the injury sufficiently serious to justify instituting proceedings for damages. The claimant’s actual psychological state can be addressed under s.33 Limitation Act 1980 when the court considers whether to exercise its discretion to extend the period of limitation, as one of the reasons for delay in issuing proceedings. However, even in cases of sexual abuse, the claimant cannot reasonably expect the court to exercise their discretion in his favour as a fair trial may not be impossible after a long delay in instituting proceedings.

PRACTICE AND PROCEDURE

Expandable v Rubin
[2008] EWCA Civ 59; [2008] All ER (D) 148 (Feb)
CPR 31.14 – disclosure of documents – waiver of privilege against inspection
CA: for the purposes of CPR 31.14, a document does not have to be referred to for any particular purpose to be ‘mentioned’ and the court should not put difficulties in the way of inspection. If a party mentions a document the other party should be entitled to inspect it; a particular type or form of document does not have to be identified. If the document that has been mentioned is privileged however, the right of privilege is not automatically lost.

 MA Holdings Ltd v R (on the Application of George Wimpey UK Ltd)
[2008] EWCA Civ 12
CPR 52.1 – permission to appeal – applicant not previously a party
CA: CPR 52.1(3)(d) does not require an appellant to have been a party to proceedings in the lower court. It does not matter that an application to be joined as a party at first instance would have failed. In this case, it would be an injustice to deny the right to appeal as although the appellant had not participated in proceedings in the lower court, it was clear that the decision would seriously affect the appellant’s property interests and that there was a real prospect of success on appeal.