April 2009 Case Law Reports
Pathak v Collins
The Claimant, a 22 year old woman, received £1,670 for a whiplash injury to her cervical spine sustained in a road traffic accident in March 2007. She had fully recovered from the injury by 4 months after the accident. Prior to the issue of proceedings, the Claimant had made a global Part 36 offer in the sum of £2,362.35 and the Defendant had made a global Part 36 offer in the sum of £1,900. At the disposal hearing, the Claimant had failed to beat the Defendant’s Part 36 offer.
The Judge held that the Claimant’s offer was wholly unrealistic and that she had not complied with the rules and pre-action protocol whole heartedly. The Claimant could not recover her costs for up to 21 days after the Defendant’s offer, which would normally apply, nor even predict his costs. She was only entitled to recover the medical report disbursement. This was because of the Claimant’s unrealistic stance before the issue of proceedings and her failure to comply with the protocol. Also her costs schedule was inflated, Painting v University of Oxford [2005] considered.
Brown v Lightbowen
The Claimant, a 27 year old woman, received £1,367 after she exacerbated a pre-existing neck injury in a road traffic accident in June 2007. Several weeks before the accident she had sustained a whiplash type injury to her neck. She suffered from the exacerbated injury for 3 weeks and experienced minor travel anxiety for approximately 6 months.
Ashley Neil Haithwaite v Thomas Snell and Passmore (A firm)
The Claimant (H) claimed damages for negligence against the Defendant firm of solicitors (T). T had been instructed to investigate a potential claim against an NHS Trust arising out of the delays in diagnosing and treating H’s subdural haematoma. T admitted that it had been negligent in the conduct of the action. As a result, H lost the opportunity to pursue his claim against the NHS Trust.
The court’s task was to consider the value of H’s lost chance of pursuing his claim and assessed the prospects of establishing negligence. On the evidence, H’s chance of establishing negligence was estimated at 40%. If H succeeded in establishing negligence, he would have had a good prospect of showing that that negligence had caused him at least some loss which was more than “de minimis” or insignificant.
In the circumstances, there was a 75% chance that H would be able to prove that the negligence of the doctors had caused him some loss that was more than minimal. H’s overall prospects of success against the NHS Trust should be reduced by a further 10% points to 30% to reflect the litigation risks of not being able to establish that some harm was caused by the negligence. Accordingly, the overall value of what H lost by T’s negligence was 30% of the likely quantum award.
Alexander Stewart Darg v Commissioner of Police for the Metropolis and Venson Public Sector Limited.
The Claimant mechanic (D) suffered lacerations to his index and middle fingers of his left hand whilst repairing a car belonging to the Defendant police force. He had been working as a mobile technician and was sent to check an airbag fault on the car. The lacerations healed but 9 months later he went to see a consultant and was diagnosed as suffering from carpal tunnel syndrome and had to undergo an operation.
D claimed that since the accident he developed crippling pains throughout his body. He was diagnosed with a condition known as complex regional pain syndrome and gave up work. He claimed that the injury prevented him from living a normal life and claimed £1 million in compensation. The police force admitted liability but strongly disputed the extent of the injuries and the amount of damages claimed. They produced secretly recorded DVD evidence taken over an 11 day period, showing D engaging in everyday activities and pursuing his hobby of airgun shooting. The police force submitted that the evidence showed that D was exaggerating his disabilities.
It was held that although D had to some extent exaggerated the extent of his disability, he had not been wholly dishonest in his presentation of the claim. He had suffered from a genuine disability even though he sometimes presented the worst aspects of that disability as if they were the norm. Furthermore, the medical evidence indicated that the necessity for an operation for carpel tunnel syndrome was brought about by the accident. The court considered the Claimant’s good character, his pre-accident and post-accident work record, the fact that he suffered from carpel tunnel syndrome and thereafter complex regional pain syndrome and that he was anxious about his state of health. However, having heard the evidence and seeing the DVD evidence it was clear that the disability had been exaggerated. The Claimant was entitled to £32,500 for pain, suffering and loss of amenity. Further arguments would be heard on both past loss of earnings and future loss of earnings.
Christopher Whippey v Andrew Michael Jones
Mr Whippey (W) appealed to the Court of Appeal against a decision that he was liable for injury caused to the Claimant (J) in an encounter with his dog. J was running along a footpath in a park when W’s dog, a Great Dane, appeared from behind a bush and knocked J’s shoulder, causing him to fall and break his ankle. W’s evidence was that he would only unleash the dog when he was satisfied that nobody was in the vicinity and that on the day in question, he had checked to see if anybody was around before unleashing the dog. The dog had a tendency to approach strangers but no tendency to jump up at people. The Judge at first instance had held that W was liable in negligence stating that “the responsible carer must ensure, and take reasonable care to ensure, that a dog does not put people in a position where they might reasonably foreseeably suffer some sort of injury”.
The Court of Appeal determined that the only issue which there could be any argument on was whether the Judge was correct to conclude that W’s conduct fell below the standard to be expected of a reasonable dog handler. Accordingly, the court had to be satisfied that a reasonable person in W’s position would contemplate that an injury was likely to follow from his acts or omissions. The remote possibility of injury was not enough and there had to be a sufficient probability of injury to lead to a reasonable person to anticipate it. Had the Judge posed the correct question he could only have concluded that a reasonable man in W’s position would not have anticipated that physical injury would be caused by another person in the park if the dog made physical contact.
Accordingly the appeal was allowed.
Carol Walton v Joanne Kirk
The insurers for Ms Walton (W) applied to commit Miss Kirk (K) for contempt of court. K had claimed substantial damages arising out of a road traffic accident. The insurers believed that K was exaggerating her disability and obtained surveillance evidence showing K driving, walking and shopping. They served the surveillance evidence and K subsequently accepted the sum paid into court and made no attempt to recover a higher figure. It was agreed that K would pay the insurers costs from 21 days after the payment into court until the date it was accepted. Once the costs were agreed, K had recovered nothing from the litigation.
The insurers applied for K to be prosecuted for contempt of court as she had made false statements in documents which were verified by a statement of truth, without an honest belief it its truth. The court therefore invited the parties to make submissions as to the penalty to be imposed in consequence.
Michael James Stewart (by his litigation friend Christopher Ramwell) v David William Glaze
The Claimant (S) claimed damages from the Defendant (G) for catastrophic head injuries arising out of a road traffic accident. It fell to be determined exactly how the accident had occurred and the parties had each adduced evidence from accident reconstruction experts.
In determining liability, the court had to decide whether G’s actions were the same standard of a reasonable driver. Compliance with speed limits and proper awareness of potential hazards could often be critical in such situations. There was no doubt that the accident reconstruction evidence would be of considerable assistance. However the experts’ function was limited to furnishing the court with the necessary scientific criteria and assisting the Judge in interpreting the factual evidence. There was nothing to say that G had been speeding at the time of the accident. In the circumstances, G had not fallen below the standard of care to be expected from a reasonable driver and could not be criticised for failing to prevent his car from colliding with S in the road. He had therefore not been negligent and was not legally liable for the accident.