July 2009 Case Law Reports
Ministry of Defence v Charles Peter Timothy Radclyffe
The Ministry of Defence appealed against the decision that it was vicariously liable for the negligence of an Army Captain which resulted in Mr Radclyffe suffering personal injury. Mr Radclyffe was a Second Lieutenant and the Army Captain was in charge of the group, who were on an adventure training exercise in Germany. On a day off, the Army Captain allowed a number of soldiers to jump into a lake from a bridge. The height of the jump was about 20 metres. Both the Army Captain and Mr Radclyffe jumped from the bridge. The following day Mr Radclyffe and others went swimming in the lake again but Mr Radclyffe was badly injured after he entered the water from the bridge with his legs bent.
Mr Radclyffe’s case was that the Army Captain had been negligent in giving permission for or encouraging the men to jump and he had done this based on what the Army Captain had said and done the previous day. The Ministry of Defence case was that they were acting outside the course of employment, no duty of care was owed and Mr Radclyffe had acted of his own volition and at his own risk.
It was held that although the officers and men were off duty at the lake, rank and military discipline remained relevant. The Army Captain could not order the men to jump, but he could order them not to jump. The swimming trips were subject to military discipline. The Army Captain had owed the soldiers a duty of care when they were at the lake as he was the officer in charge and it was fair, just and reasonable to consider that he had a duty to take reasonable care to guard his subordinates against a foreseeable risk of injury and was therefore in breach of his duty of care. The Judge was therefore entitled to find that Mr Radclyffe’s decision to jump was causatively influenced by the pressure deriving from what the Army Captain had said and done on the previous day. The Judge was also entitled to assess Mr Radclyffe’s contributory negligence at 40%. The Ministry of Defence’s appeal was therefore dismissed.
David Bromley v Martin Roberts
The Claimant, a 27 year old man, received £2,255 for whiplash injuries to his neck and back sustained in a road traffic accident in March 2007 and the headaches subsequently suffered. All symptoms settled within 8 months of the accident.
James Fitzpatrick v Optima Community Association
The Claimant, a 64 year old man, received £7,875 for fractures to his tibia and fibula sustained after he fell over loose stones whilst walking his dog. He took action against the Housing Association from whom he rented his flat, alleging that it was negligent in causing or permitting the area to reach a state of dangerous disrepair.
Liability was admitted. The Claimant was only able to walk three quarters of a mile, experienced difficulty kneeling and was unable to run. He also had to give away his dog as he was unable to walk him. The injuries were expected to improve gradually. However if the level of disability had not returned to the pre-accident level within 2 years from the date of the accident, it was unlikely that it would ever do so. The medical notes suggested that the Claimant had consumed alcohol on the day of the accident although the Claimant denied this. As a result, contributory negligence of 25% was agreed.
Malcolm William Green v Sunset and Vine Productions Limited (1) British Automobile Racing Club Limited (2) Goodwood Road Racing Company Limited (3)
Mr Green claimed damages for personal injury following an accident which occurred during a car race. Mr Green was a well known and very experienced driver of historic racing cars. He had been driving in a trophy race at the Goodwood Circuit, which was owned and operated by Goodwood Road Racing Company Limited. The British Automobile Racing Club Limited had organised the race meeting and had responsibility for the track and the immediate area. Sunset and Vine Productions Limited provided outside broadcasts for the race meeting. Among the cameras they used was a “kerb cam” which took wide angle but close up road level shots of passing cars and their wheels.
During the trophy race, Mr Green suffered an accident where his car clipped the kerb and spun out of control, hitting a tyre wall, as a result of which he suffered severe leg injuries. Mr Green contended that the accident had been caused by the car’s wheels hitting the kerb cam which caused the car to veer off track, after which there was nothing he could do to stop the crash. He argued that the production company had placed a camera in the wrong place or in an insecure manner.
It was held that on the evidence, what had probably caused the car to crash was a combination of speed and the line it took whilst overtaking the car in front. The kerb cam was not an important factor. Mr Green’s driving was the principle cause of the accident and it was his own error of judgment which led him to take in the line he did around the corner. Although no driver had any reason to suspect the presence of the kerb cam on the inside of the corner, it was not the case that Mr Green would have refused to race if he had known of it and if it had not been removed. Accordingly none of the Defendants were liable for the accident.
Re: F
The Claimant, a 51 year old man received £5,375 for facial injuries sustained when he was attacked in the street in July 2006. He received a blow to the head and fell to the floor. He applied to the Criminal Injuries Compensation Authority. Initially the CICA refused to make an award as it found that F had not reasonably cooperated with the police to bring the offender to justice. Upon reviewing the matter, it refused to make an award but on the alternative basis that F had not taken reasonable steps to report the incident without delay to the police.
F appealed. The Criminal Injuries Compensation Appeals Panel found that although F had delayed in reporting the circumstances to the police, the delay had been reasonable as F had relied on police advice to make a statement when he felt able to do so. He had subsequently telephoned them approximately 10 days after the incident, following surgery, and the police had failed to follow up or contact F during that period. The CICAP also found that F had cooperated with the police in attempting to bring the offender to justice and was satisfied that F had given as much information to the police as he had been able to.
A broken left eye socket which required an operation normally attracted a level 9 award of £4,400, the fractured cheek bone requiring an operation attracted a level 6 award of £2,500 and temporary numbness lasting more than 13 weeks attracted a level 3 award of £1,500. The injuries were adjusted in accordance with the tariff.
F G Hawkes (Western) Limited v Beli Shipping Co Limited
The ship owner applied to set aside an order extending time for service of the Claim Form. The terms of the bill of lading provided for a 1 year time limit for the bringing of proceedings in respect of loss or damage to cargo. 11 months after the completion of discharge, F G Hawkes informed the ship owners’ insurer of a potential claim and sought an extension of time. They also indicated that a claim against their cargo insurers was under consideration. 2 extensions of time were granted. The Claim Form was issued on the last day for the period of extension.
F G Hawkes had 6 months in which to serve the Claim Form out of the jurisdiction. 3 weeks before the end of the period for service, F G Hawkes asked the insurer where they should serve the Claim Form and they declined to give that information. F G Hawkes then sought the same information from the managers, who did not reply. A week before service expired, F G Hawkes obtained an ex parte order for an extension of time. The Claim Form was then served on the ship owners at its registered office. The ship owners argued that the failure to serve the Claim Form within the 6 month period was due to the solicitors neglect and did not constitute a good reason for extending time.
It was held that there was no reason for the failure to serve the Claim Form within time other than incompetence, neglect or oversight on the part of the Claimant or his legal representative. It was incumbent on a Claimant to take reasonable steps to ascertain the Defendant’s address for service. In the instant case, the solicitors did nothing for 5 months while they were focusing on the claim against the cargo insurers. That was a strong reason for not extending time. To leave enquiries as to service until 21 days before the period for service expired was leaving it very late indeed. Accordingly a refusal to extend time was appropriate and not disproportionate.
Bowler v Clarke
The Claimant, a 27 year old man received £24,872 for a back injury sustained in a road traffic accident in April 2004. He was unable to pursue his chosen career as a scuba diving instructor. Prior to the accident he had obtained a range of specialist recreational scuba diving qualifications and a basic dive master qualification and had intended to qualify and work as a scuba diving instructor. However after the accident he was unable to pursue that career and instead worked as a customer services manager and then a retail assistant. He was extremely frustrated by the lost opportunity of being able to pursue his career plan which would have allowed him to live, work and travel abroad.
At the date of settlement, the pain in the Claimant’s lower back was at a level of being a nuisance. The symptoms were likely to prevent the Claimant from pursuing a career as a scuba diving instructor. The Claimant was devastated once he found out he was not going to be able to pursue diving as a career. He found it difficult to relate to his girlfriend, friends and colleagues and sought help from his GP who prescribed anti-depressants which he took for 6 months. Shortly after his partner left and he started to experience suicidal feelings for which he received counselling in 2007.
The Claimant received £11,500 plus interest for pain, suffering and loss of amenity, £9,500 plus interest for loss of congenial employment, £2,654 for future treatment and medication and £807 plus interest for past treatment and medication.