What's new at 7 Harrington Street

Harrington Hearsay Newsletter

23rd January 2009

TORT

Gravil v Carroll
[2008] EWCA Civ 689
Negligence- Vicarious Liability
CA: the Claimant was punched by the First Defendant during an altercation at a rugby match. The Claimant brought a claim for personal injury against the First Defendant and against the Second Defendant, the Rugby Club, on the basis of its vicarious liability for the First Defendant’s assault. The Claimant had a contract to play with the club and consequently received a fee for playing rugby. At trial the Judge at First Instance held the First Defendant liable for the Claimant’s personal injuries but held the club wasn’t vicariously liable.

The Court of Appeal held whether the Second Defendant was vicariously liable depended on whether the tort was closely connected with the Claimant’s employment with the Club and whether it would be fair and just to hold the Club liable. The Court held that the injury the Claimant sustained constituted a breach of an express term of the employment contract with the Second Defendant. There was a very close connection between the injury and the employment. It was fair and just to hold the Club vicariously liable.

St George v Home Office
[2008] EWCA Civ 1068, [2008] WLR (D) 309
Negligence- Contributory Negligence
It was held at First Instance that the Defendant, the Home Office, was liable in negligence for the Claimant’s injury caused by a fall sustained after his withdrawal from drugs, however the Claimant was also found to be contributory negligent.

As a result of the Claimant’s withdrawal from drugs and alcohol he fell from a bunk bed in prison, suffered a seizure and found later to have suffered progressive severe brain damage and was left severely disabled.

It was held by the Court of Appeal that it was perfectly just for the Judge at First Instance to have found the Claimant at fault for becoming addicted to drugs and alcohol. However the Court applied the dicta of Lord Walker in Corr v IBC Vehicles Ltd and applied the test of S.1 Law Reform (Contributory Negligence) Act 1945 whereby the Court had to have regard to both blame worthiness but also what is called “causal potency”. Although it was true that, but for the Claimant’s addiction he wouldn’t have suffered the personal injury, the addiction was not determined by the Court of Appeal as a “potent cause” of the injury.

The Court concluded the Claimant’s error, becoming addicted to drugs and alcohol in his mid-teens, was not a potent cause. It was held to be too remote in time, place and circumstances and was not sufficiently connected to the negligence of the prison staff. It was held therefore that the Claimant’s injury was not within the meaning of s.1 of the 1945 Act and therefore it was neither just nor fair to reduce the Claimant’s award of damages.

Lindsey v Lamb
[2008] EWCA Civ 1143

The Claimant suffered serious injuries when the scooter he was riding burst into flames after it collided with a lorry and a taxi. Liability was established against the Defendant, subject to a 20% deduction for contributory negligence. The lorry driver in turn sought a contributional indemnity from the taxi driver but the claim was dismissed. The lorry driver consequently appealed.

The Part 20 claim was based on the allegation that the taxi driver had suddenly and unexpectedly braked hard and collided with the vehicle ahead of him, thereby creating an emergency situation behind him. Liability was denied on the basis that the taxi driver had had to brake sharply because the car ahead of him had braked sharply so he had had to do an emergency stop.

The Judge dismissed the Part 20 claim on the basis that the Defendant had failed to establish causation as the accident would still have happened even if the taxi driver had avoided hitting the vehicle in front of him. Moreover, the Judge was not satisfied that the taxi driver was in breach of his duty of care because it was not in itself negligent to have to engage in an emergency stop.

DISCRIMINATION

Johnson v AWE PLC
Employment Appeal Tribunal 27th June 2008
The Claimant had a road traffic accident in August 2001 and brought a claim for damages arising out of his personal injuries. In 2003 he later injured his spine at work when a window fell onto his head. He brought a second personal injury claim against his employers. The claimant medically retired in February 2007 and claimed that he had intended to work until his 65th birthday i.e. until March 2009.

Later in 2007 he brought a further claim in the employment tribunal for disability discrimination arguing that his employer had failed to comply with their duty under the Disability Discrimination Act because they could have either made adjustments or found alternative work for him until the time of his 65th birthday.

The Employment Judge concluded that the issue of reasonable adjustments had already been the subject of litigation and therefore estoppels applied and the claim should be struck out.

The Employment Appeal Tribunal held that the tribunal at first instance erred in law in concluding that the doctrine of issue of estoppel required it to dismiss the Claimant’s claim under 3A(2) of the Disability Discrimination Act 1995. It was therefore held that the appeal would be allowed and the claim remitted to the Employment Tribunal which at first considered the issue of liability, that is whether the Respondents had failed to comply with their duty under Section 3A(2) of the Disability Discrimination Act 1995 to make reasonable adjustments.

It was held that if liability was established the Tribunal should go on to make an award for injury to feelings and consider whether the claim for loss of earnings and pension from 2007 to 2009 was established. In the event it did reach that stage it would not be entitled to make an award of compensation for loss of earnings or pension insofar as either of those items were already compensated in the County Court proceedings in the two personal injury actions.

CRIMINAL

R v Porter
[2008] EWCA 1271
Criminal – Health and Safety
CA: the Defendant was a headmaster of a private school and within the school were two different playgrounds separated on different levels. In order for anyone to have access from one playground to the other they had to go down or up a set of brick steps. A child, aged 3 ¾ descended the steps and jumped from the fourth from the bottom step, losing his footing and landing face down on the bottom step. The child suffered a serious head injury and whilst in hospital contracted MRSA and consequently died.

The defendant was charged with failing, contrary to section 3 (1) of Health and Safety at Work Act 1974 (HSWA) to conduct his undertakings in such a way as to ensure in so far as was reasonably practicable that persons not in his employment, who might be affected, were not thereby exposed to risks to their health and safety.

The Court of Appeal held that in order to prosecute under s3 (1) HSWA 1974 the risk had to be real as opposed to fanciful. It was held that as all the evidence showed there had been no playground accidents in the past 29 years, a properly directed jury could not have concluded the child was exposed to risk by the Defendant’s conduct. The conviction was consequently quashed.

FAMILY

SB v A County Council, Re P
[2008] EWCA Civ 535
A Judge considering dispensing with parental consent to adoption had to focus on the child’s welfare “throughout his life”, to emphasise that adoption, unlike other forms of order, was something with lifelong implications.

WALL LJ, delivering the judgment of the court, said that the case raised points of considerable importance for the future development of the law and practice of adoption

Held (1) in contrast to s1 of the Children Act 1989, s1 (2) of the Adoption and Children Act 2002 requires a complex analysis of the child’s welfare throughout childhood, into adulthood and for the rest of his or her life.

(2) dual planning had to be permissible as a matter of welfare

(3) the ultimate responsibility for determining post-adoption contact rest firmly in the hands of the judges.

In re S (A child)
[2008] WLR (D) 308
When considering whether to revoke a Replacement Order placing a child for adoption with prospective adopters, it was wrong to focus on whether the carers were “potential” adopters. It was held that s18 (5) of the Adoption and Children Act 2002 required the Judge at First Instance to focus on a “prospective” adopter, not a “potential” adopter.

The Court of Appeal held that the Judge had reached the wrong conclusion on the law and the necessary three stage test which was required for the statutory placement of a child for the purposes of s24 of the 2002 Act was not accomplished. In this case, only the first stage was addressed i.e. whether adoption was in the best interests of the child. The further two stages, namely whether the local authority would apply for a placement order, and if granted, the respondent would consider whether there were specific people who would be appropriate adopters and if the child matched those appropriate adopters were in fact not carried out in this case.

EVIDENCE

St George v Home Office
[2008] EWCA Civ 1068
Where there was a difference between experts on a fundamental point, the Court had to justify its preference one over the other by an analysis of the underlying material and of their reasoning. It was not sufficient, in the absence of such, to accept the opinion of one expert on the ground that he had given his evidence confidently.

PROPERTY

Horsham Properties Group Ltd v Clark and another
[2008] EWHC 2327 (ch); [2008] WLR (D) 307
The claimant brought a claim for possession against the defendants who as formed registered proprietors had changed it to a third party. The defendant ell into arrears and the 3rd party appointed joint receiver over the property. The receivers sold the property to C Ltd and on the same day transferred it to the claimant. Consequently the claimant claimed that the defendant were trespassing on the basis that all their rights in relation to the property had been overreached by the receiver’s sale to C Ltd.

The court held that the main issued was whether s101 Law Property Act 1925 infringed the Convention for the Protection of Human Rights and Fundamental Freedom rights of mortgagors. The question arose as to whether it breached the Convention by allowing mortgagees to overreach the mortgagor’s rights in relation to the mortgaged property by selling it out of court, without first obtaining a court order for possession. The court held that the exercise of the power of sale under s101 of the 1925 act after a relevant default by the mortgagor was not a deprivation of possessions within the meaning of Article 1.

EMPLOYMENT

Claridge v Daler Rowney Ltd
UKEAT/188/08
In June 2006 the Claimant raised with his employers that he had been unfairly demoted. The Claimant’s grievance was not discussed until February 2007 when it was confirmed he had been demoted in July. The Claimant resigned and claimed he had been constructively dismissed as a result not of having his grievance dealt with within a reasonable period of time. The Claimant contended as a consequence his employer breached their duty not to undermine the trust and confidence in the employment relationship.

The Employment Appeal Tribunal held that when analysing the breach of trust and confidence term, if an employer acted in a way which a reasonable employer would act the employee could not be successful in claiming a breach of contract. It was held therefore that the employer’s response to the Claimant’s grievance was reasonable and consequently didn’t undermine the trust and confidence in the employment relationship.

HUMAN RIGHTS

R (F) v Secretary of State for Justice; R (Thompson) v Secretary of State for the Home Department
[2008] EWHC 3170
It was held in the Queen’s Bench Divisional Court that the placing of an offender on the Sex Offenders Register for an indefinite period, and in the absence of any mechanism for review, was a disproportionate interference with the right to respect for private and family life under art 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The Court subsequently granted a declaration of incompatibility under s4 of the Human Rights Act 1998 in respect of the decision to place the claimants on the Sex Offenders’ Register for life following their convictions for sexual offences.

PRACTICE & PROCEDURE

Gray v Thames Trains Ltd
[2008] PIWR P20
The Claimant was involved in the Ladbroke Grove rail crash and suffered severe post traumatic stress disorder causing significant personality change. The Claimant later stabbed a stranger to death and consequently pleaded guilty to manslaughter and was detained in a hospital under the Mental Health Act 1983 s37.

The Claimant brought a claim on the basis that he was unable to earn as much as he would have done but for the accident. The Defendant denied liability in respect of losses incurred after the manslaughter on the basis of ex turpi causa. The Court held that the question was whether the relevant loss was inextricably linked with the Claimant’s illegal act. It was subsequently held that the Claimant was entitled to recover the whole of his loss of earnings.

Salsbury v Law Society [2008] EWCA Civ 1285
The Court of Appeal held that The Solicitors Disciplinary Tribunal must now take into account the rights of the solicitor under arts 6 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The Court of Appeal allowed the appeal by the Law Society against a decision of the Queen’s Bench Divisional Court, quashing the Order striking Brendan John Salsbury off the Roll of Solicitors and held the Order by the Solicitors Disciplinary Tribunal to be excessive and disproportionately harsh, substituting a three year suspension.

It was held that it is an overstatement to say that a “very strong case” was required before the Court would interfere with the sentence of the Solicitors Disciplinary Tribunal in consideration of the Solicitor’s rights under art 6 and 8 of the Convention.