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Harrington Hearsay Newsletter

10th June 2009

TORT

Dobson v Thames Water Utilities Ltd
[2009] EWCA Civ 28
Nuisance - Damages

CA: the Claimant brought a claim and sought damages for loss of amenity after he was affected by odours and mosquitoes caused by the negligent operation of the working by the Defendant, Thames Water Utilities Ltd. The Claimant brought proceedings in private nuisance caused by the negligence and additionally sought damages under s8 Human Rights Act 1998.

The case considered awarding damages to not only the occupiers but to other residents of the same household. It was considered whether it was just and appropriate and necessary to award damages to a non property owner member of the same household within a claim brought by the occupier who had a right to sue in nuisance. The Court of Appeal considered whether an award for damages included damages recovered by the property owner on behalf of any non-property owner member of the same household.

It was established by the majority, that damages in nuisance was for injury to the property and not to the "sensibilities" of the occupiers. There was no support for the view that the person who had the right to sue in nuisance was recovering damages on behalf of other occupiers of the property. The Court held that on the state of the law it was not possible to give an answer as to whether it was just and appropriate and necessary to award damages to a non-property owner member of the same household.

Yearworth and others v North Bristol NHS Trust
[2009] EWCA Civ 37
Negligence - Damage to bailed chattel

CA: the Court allowed an appeal by the Claimants who were six males diagnosed with cancer who had accepted the advice of clinicians to produce sperm samples for frozen storage. The storage in liquate nitrogen failed and the sperm perished.

At first instance it was held that damage to a Claimant's sperm sample in itself did not constitute a physical injury to him and the sperm was not of the Claimant's property and there was no entitlement to damages therefore.

The Court of Appeal held that the judge at first instance had rightly held that damage to sperm did not constitute a personal injury. In order to claim for loss or damage to properly a person must have had legal ownership or a possessor in title to the property when damage occurred.

On the facts however there was bailment of the sperm by the Claimant's to the hospital unit and as a result the unit was liable under the law of bailment as well as under that of tort. The law of bailment provided the Claimant's with a remedy under which in principle they were entitled to compensation for any psychiatric injury.

X and Another v Hounslow London Borough Council
[2009] EWCA Civ 286
Negligence

CA: The Court of Appeal allowed the Defendant's appeal and held that a local authority did not owe a common law duty of case to protect tenants from criminal acts by a third party.

The Claimants lived in a council flat with two daughters and befriended a couple of youths who later imprisoned them, abusing both them and their two children.

A council social worker was involved before the said incident and became aware of the relationship between the Claimants and the youths. The Council social worker knew of the youth's previous activities and wrote to the housing department to consider rehousing the Claimants as a matter of urgency.

On appeal, the question raised was whether a local authority owed a common law duty of care to protect tenants living in one of its flats from criminal acts from third parties. The facts within the case did not show that there was an assumption of responsibility by the council which could give rise to a duty of care to the Claimants but merely that the council's social services and housing departments were carrying out their statutory functions and no more.

It was held by the Court of Appeal that it would not be fair, just or reasonable to impose a common law duty of care on the council. If anyone assumed responsibility it would be the social worker, but it had already been held that she had not been negligent.

Orchard v Lee and another
[2009] EWCA Civ 295
Negligence

CA: the Court of Appeal dismissed an appeal by the Claimant, on the basis that a child at school playing a game in an authorised play area, not breaking any rules, was not acting to any significant degree beyond the norms of that game and would not therefore be held liable for damages in negligence.

The Claimant at first instance brought a claim for personal injury after being injured when the 1st Defendant ran into her during a game of tag in the playground. Waller LJ held that the test was whether an ordinarily prudent and reasonable 13 year old would have realised that his actions gave rise to a risk of injury. The question would be assisted by what injury the child could foresee as likely to be caused by his conduct. Waller LJ stated that the judge at first instance had followed guidance in Mullin v Richards [1998] 1 WLR 1304.

The Court of Appeal agreed with the court at first instance, that the 1st Defendant could not be held liable for personal injury.

Wills and Probate- Mental Disorder

In re P
[2009] EWHC 163 (Ch)
Mental Disorder

Court of Protection: the Court of Protection held when directing that a statutory will be executed on behalf of P, who lack mental capacity that when making decisions about property and welfare, the overreaching principle pursuant to the Mental Capacity Act 2005 was that any decision made on behalf of that person must be made in his best interests. That approach was not the same as inquiring what that patient would have decided if he had had capacity, namely the 'substituted' judgement approach.

Accordingly, the guidance given under the Mental Health Act 1959 and 1983 about the making of settlement of wills would no longer be directly applied to a decision made under the 2005 Act. While the patient's wishes must be given weight, they were only one part of the balance.

It was held that when deciding what provisions should be made in a will to be executed on a patient's behalf, while a patient's best interests would be served by giving effect to his wishes, the decision maker was also entitled to take into account how the patient would be remembered after his death.

CHILD LAW

R (Liverpool City Council) v Hillingdon London Borough Counsel
[2009] EWCA 43
Children - Welfare services and children in need

CA: AK, a child within the welfare services had wished to move to Liverpool however the responsibility for looking after a child in need fell on the local authority where the child was living and could not be fulfilled by sending the child on to another local authority even if the child wanted to live in that area.

The Court of Appeal allowed an appeal brought by the Claimant, Liverpool City Council. The Defendant, Hillingdon London Borough Council maintained it had no responsibility for the child under s20 of the Children Act 1989. Section 20 of the Act did not provide that the child's wishes and feelings were determinative in the assessment of the child's welfare needs. The Defendant had not given any consideration of the child's welfare needs, they did not make any assessment of what kind of accommodation would meet those needs. They took the view that the fact the child said that he wanted to live in Liverpool was enough.

The Court of Appeal held that this was not a proper discharge of s20 duties.

COSTS

R (Mendes and another) v Southwark London Borough Council
[2009] WLR (D) 108

CA: Court of Appeal allowed the appeal brought by the Claimants on the basis that the local authority had conceded that it did have a duty to house the Claimants.

The Court of appeal held that the local authority had "erroneously" informed the Claimants that they were not entitled for housing assistance. The Claimant's Solicitors issued proceedings for judicial review but the proceedings were withdrawn after the local authority admitted that the Claimants were eligible for housing; however the issue of costs remained.

At first instance, the judge did not make any Order for costs and provided no reasons or justification for this.

The Court of Appeal subsequently held that it was plain that the Claimants would have won their case in judicial review and as a result the judge at first instance had erred in not awarding the Claimant's costs.

DAMAGES

Peters v East Midlands Strategic Health Authority and another (Nottingham City Council, part 20 defendant)
Damages
[2009] EWCA Civ 145

CA: the Court of Appeal dismissed the appeal brought by the 1st and 2nd Defendant and held that there was no reason in policy or principle why the Court cannot hold that a Claimant who wished to opt for self-finding and damages in preference to reliance on the statutory obligations of a public authority should not be entitled to do so.

There was no dispute that the Claimant was severely disabled and had suffered a loss caused by the Defendants and she was therefore entitled to have that loss made good, which included the provision of accommodation and care.

It was held that provided there was no real risk of double recovery there was no reason why the Claimant should give up her right to damages to meet her wish to pay for her care needs herself rather than to become dependent on the state.

The Court of Appeal held that the judge at first instance was right to conclude that it was reasonable for the Clamant to opt for self-finding and damages rather than seek provision for care and accommodation at public expense.

CRIMINAL LAW

R v Wood (No 2)
[2009] EWCA Crim 651
Crime

CA: the Court of Appeal held that the fact a Defendant was convicted of manslaughter on the grounds of diminished responsibility did not preclude a sentence of imprisonment for life with a minimum term of 13 years.

The Court raised questions as to the link between s269 of the Criminal Justice Act 2003 for the determination of the minimum term in cases of murder, and the assessment of the minimum term where the Defendant was convicted of manslaughter.

The Court of Appeal held that just because the case was one of manslaughter did not preclude a sentence of imprisonment for life. They did acknowledge that in reality such a sentence would be rare however stated that the striking feature of the present offence was that the victim was killed in a prolonged murderous, unprovoked attack of repeated violence.

R v Evans
[2009] EWCA Crim 650
Crime

CA: the appellant appealed her conviction of gross negligent manslaughter and the Court of Appeal was faced with inconsistencies between the authorities in relation to whether the judge or jury was responsible for deciding whether a Defendant owed a duty of care to the deceased.

The appellant had persuaded her 16 year old half sister to take heroine and for fear of getting in to trouble neither she nor her mother sought medical assistance when the half sister showed signs of a heroin overdose.

The question was whether the appellant was under a duty to take reasonable steps for her half sister's safety once she appreciated that the heroin could prove fatal. For the purposes of gross negligence manslaughter, the link between civil and criminal liability leads to the general test that when a person had created a state of affairs which he knew, or ought to have reasonably known would become life threatening, a consequent duty on him to act by taking reasonable steps to save the other's life would normally arise.

The Court of Appeal held that such a duty of care was a question of law for the judge whilst the question of whether the facts established the existence of the duty was for the jury.

R (Tait) v Criminal Injuries Compensation Appeals Panel
Criminal Injuries Compensation Authority
[2009] EWHC 767

QBD: the Claimant, a police officer, was travelling as a front passenger of a police car which was engaged in the pursuit of a stolen car. During the pursuit, the claimant sustained a whiplash injury when the stolen car rammed into the police vehicle.

The claimant brought a claim for compensation but his application was rejected by the Criminal Injuries Compensation Authority on the grounds that his injuries were not serious enough to qualify for the minimum compensation. The claimant appealed this decision.

On appeal the question arose as to whether the claimant was even eligible for an award under the Compensation Scheme. It was held by Stadler J that the Claimant's injury did fall within the definition of "criminal injury" under the 2001 Scheme however the exclusion contained within paragraph 8(c) of the 2001 scheme was raised, whereby an injury attributable to the use of a vehicle was not a criminal injury for the purpose of the scheme, unless the vehicle was used so as to deliberately inflict or attempt to inflict injury on any person. The state of the driver's mind was therefore questioned.

It was held that the panel at first instance erred in concluding that the stolen car was not being used so as to deliberately inflict injury on the Claimant. The panel's decision was quashed and an order made remitting the Claimant's appeal to the first tribunal for determination of the amount of compensation payable.

EMPLOYMENT

Kirklees Metropolitan Council v Radecki
[2009] EWCA Civ 298
Employment

CA: an employee of Harshead Moor School brought proceedings against the employer for unfair dismissal. The employees' skill and experience was brought into question.

A propose settlement including a payment in lieu of notice, the giving of a reference for the employee and an agreed termination date was negotiated "without prejudice and subject to contract" on 31 October 2006. The employee signed that agreement but later sort legal advice and brought proceedings against his employer.

The employee argued the settlement was of no effect because it was expressed to be without prejudice and subject to contract.

The Court of Appeal allowed an appeal by the employer on the basis that the employee's claim for compensation for unfair dismissal was submitted more than 3 months from the effective date of termination and therefore out of time for the purpose of s111(2) of the Employment Rights Act 1996.

The employment contract was however unequivocally terminated when the employer ceased paying the employee's salary and that should be held to be the effective date of termination regardless of the without prejudice settlement.

DISCRIMINATION

Matuszowicz v Kingston upon Hull City Council
[2009] EWCA Civ 22
Discrimination

CA: the Claimant, who was disabled after having his right arm amputated, worked for the Defendant at Hull Prison as a teacher. The Claimant had difficulty however coping with the heavy doors in the prison and as a result was transferred to Everthorpe Prison where it was hoped the situation would improve. The situation however did not improve, and he was moved several times to lighter duties which consisted of gardening by late 2005, two years after initially working as a teacher.

The Claimant aired his grievances to the Defendant in October 2006 in relation to matters occurring up to 31st July 2006 and put forward several grounds which included the failure to transfer him to suitable employment. The Defendant said the complaint was out of time according to Para 3(4) of the Disability Discrimination Act 1995.

The Court of Appeal however concluded that a failure by the Defendants to make adjustments was an omission, not an act. The allegation was one of a continuing omission which continued until 1 August 2006. If the start date did not occur until that date the claim was in time, the appeal by the Claimant against the Employment Appeal Tribunal was allowed and the matter was remitted to the tribunal to proceed on the merits.