June 2009 Case Law Reports
Carol Walton v Joanne Kirk
In our April case reports we reported how the Judge gave permission for contempt proceedings to be brought against the Claimant: Ms Kirk, for allegedly deliberately exaggerating her disability in a personal injury claim. Although she was seeking £800,000.00 in damages, she subsequently accepted the other side’s offer amounting to £34,000.00 after video surveillance.
In the contempt proceedings, the Judge decided that there were 3 principles involved in considering contempt in civil proceedings:-
A. The Applicant must prove each of the 3 elements of the contempt beyond a reasonable doubt. A genuine doubt must be resolved in the Respondent’s favour.
B. The 3 elements are that…
i) The statement is false;
ii) It has or would have interfered with the course of justice and;
iii) When the false statement was made the maker had no honest belief in its truth.
C. Exaggeration of a claim is not automatic proof of contempt of court. What may matter is the degree of exaggeration and/or the circumstances in which any exaggeration is made.
The Judge found that Ms Kirk had made a false statement in an Incapacity for Work questionnaire, where she deliberately chose in her detailed answers to describe only her bad days despite the repeated requests in the questionnaire to identify whether (and if so the extent to which) the symptoms varied from day to day. The Judge considered that, in answering the questionnaire, Ms Kirk generally exaggerated her symptoms to a “significant and unconscionable degree”. The Judge found that Ms Kirk had also made statements in her application for a disability blue badge which the Judge found to be false.
Accordingly contempt was proven and Ms Kirk was subsequently fined £2,500.00 and ordered to pay half the other side’s costs, as well as her own.
Holmes v Treadwell (1) and Tesco Motor Insurance (2)
The Claimant, a 32 year old man, received £1,637.00 for neck and shoulder injuries sustained in a road traffic accident in July 2007 and the anxiety and disturbed sleep he subsequently suffered. He was unable to continue his hobbies of playing football and golf and experienced pain when turning his neck whilst driving. Due to concerns as to his 4 year old daughter who was also in the car at the time of the accident, the Claimant suffered from anxiety and disturbed sleep because of nightmares. He did not seek formal medical advice or treatment.
The bruising to the shoulder and arms settled after approximately one week. At 2 weeks after the accident he as able to resume playing football and no longer suffered from disturbed sleep. His injuries had fully resolved within approximately 9 weeks from the date of the accident.
Hamilton v O’Kane and another
A motorcyclist appealed against a decision of the Judge apportioning liability in a personal injury claim between him and a car driver. The motorcyclist was seriously injured when he was involved in a collision with a vehicle emerging from a minor road. The motorcyclist was over the drink drive limit. At trial, the pillion passenger gave evidence that they had been riding in the middle of the road and that the car driver had emerged from the minor road without stopping. An independent witness gave evidence that she saw the motorcyclist swerve to the middle of the road to avoid a parked car which was the cause of the accident. The original Judge had held that the motorcyclist should not have been riding at all, he should not have been travelling at the speed limit given the road was obstructed with parked cars and that he was not entitled to ride in the middle of the road. He also held that the car driver had not looked before emerging from the minor road. He therefore apportioned liability at 80% against the motorcyclist and 20% against the car driver.
On appeal, the Court of Appeal held that the speed at which the motorcyclist was travelling was not of causative importance. There was no evidence that the speed had contributed to the accident. Further, there was nothing in the evidence that showed that the motorcyclist’s driving was impaired by alcohol. It was also clear from the evidence that the car driver had not kept a proper look out when approaching the junction and she did not see the motorcyclist. Equally, if the motorcyclist had stayed on the correct side of the road the accident would not have happened. In the circumstances both parties were equally to blame for the accident.
Anita Shah v Wasim Ul-Haq (1) Samara Khatoon (2) Zahida Parveen (3)
Mr Ul-Haq and Ms Khatoon had issued proceedings against Ms Shah for personal injuries sustained in a road traffic accident when the car which they claimed to have been travelling in had collided with the car driven by Ms Shah. Ms Shah had admitted liability but alleged that Ms Khatoon had not been in the car at the time of the accident and that Mr Ul-Haq’s claim should be struck out as an abuse of process, due to their part in the attempted fraud. The Judge found that Ms Khatoon had not been in the car and that Mr Ul-Haq had conspired with her to support a fraudulent claim, but declined to strike out Mr Ul-Haq’s claim. He dismissed Ms Khatoon’s claim and awarded Mr UI-Haq damages, but held that he should pay two-thirds of Ms Shah’s costs of defending the claims.
On appeal, the Judge had been satisfied that there was discretion under CPR 3.4(2) to strike out a genuine claim even at the end of a hearing. He carried out a balancing test and found that the fraud had not been of the most serious kind and he declined to strike out the claims or Mr Ul-Haq’s claim.
The Court of Appeal held that the invariable rule was that, where a claim had been dishonestly exaggerated, the Judge awarded the limited damages which were appropriate to his findings. It was well established that a Claimant would not be deprived of damages to which he was entitled because he had fraudulently attempted to obtain more than his settlement. The Judge could therefore mark his disapproval of the way in which the court’s time and the parties money had been wasted, by making an order for costs but he could not mark his disapproval by depriving the Claimant of that which the Claimant had proved to be entitled. The power to strike out a claim would normally be deployed during a hearing where it became apparent that it would not be possible to have a fair trial or because, without some corrupted evidence the claim could not succeed. In the instant case, there was no suggestion of an unfair trial and therefore the claim would not be struck out.
AB and Others v Ministry of Defence
In 10 conjoined test cases the court was required to determine as a preliminary issue whether claims against the Ministry of Defence for compensation for injury due to exposure to ionising radiation, as a result of the nuclear tests carried out by the British Government in the 1950s, were statute barred under the Limitation Act 1980. The Claimant veteran servicemen alleged that the Ministry of Defence had negligently failed to protect them from exposure to radiation fall out from the tests and had also deliberately exposed them to test the effects of radiation. The Defendant denied the allegations and suggested that such illnesses were equally likely to have occurred naturally.
The court held that it was not appropriate to strike out the claims as issues of causation needed to be dealt with at trial. Until the facts had been established it was not possible to know whether the claims were governed by the general test for causation or some other test.
On the issue of limitation, on the evidence the veteran servicemen could only have knowledge that such exposure could have caused illness if they had been aware, directly or indirectly, of the findings of the Rowland study in 2007. This was the first credible scientific evidence that radiation exposure above background level could cause the claimed illnesses. When considering the discretion under Section 33 of the Limitation Act 1980, the essential question in the instant case was whether, in all the circumstances, there could be a fair trial of the primary factual issues despite the delay in issuing proceedings. Given that this would have been largely incapable of proof until the Rowland report, Section 33 discretion was exercised in each case that was statute barred and therefore the preliminary issue was determined in favour of all Claimants.
Andrew Brown and Others v Innovatorone PLC and 7 Others
The Claimant had brought proceedings against a number of Defendants and had served the Claim Form on all the Defendants except one. The Claimant’s solicitors informed that Defendant that it was intending to bring proceedings against them and enclosed copies of the Claim Form, but stated that they were not yet served and would be served within the 4 month validity period under CPR 7.5(1). The Claimant’s solicitors received correspondence from a firm of solicitors confirming that they were acting for the Defendant but they never confirmed they were instructed to accept service.
It was held that it would be ill advised to serve upon the solicitor unless a Claimant had been made aware by the Defendant or his solicitor that the solicitor was authorised to accept service. Accordingly, the Claim Form had not been validly or effectively served.
Everett v Burling
The Claimant, a 52 year old male, received £2,424.00 for elbow and chest injuries sustained in a road traffic accident in October 2006. He was cycling on a major road when the Defendant emerged from a side road and attempted to turn right but collided with him. Liability was admitted. Following the accident the Claimant was absent from work for one week. The injuries had a minor impact on his work and leisure activities. After 2 or 3 months the Claimant had fully recovered from the elbow injury. The chest injury resolved between 3 to 4 months after the accident.
Julie Copley v Kenneth Lawn: Ian Maden v D Haller
Ms Copley and Mr Maden appealed against a decision that they had failed to take reasonable steps to mitigate their loss by refusing the insurers offer to provide them with replacement cars while their cars were being repaired following road traffic accidents. Both parties had hired replacement cars while their cars were being repaired. Ms Copley had hired a replacement car before the insurers telephoned her and then sent a letter offering her one. In her case, the Deputy District Judge had allowed only 7 days car hire on the basis that at the end of that period, Ms Copley should have availed herself of the right to cancel the hire agreement and then accept the insurers offer.
In Mr Maden’s case he was offered a car by the insurers but ignored that offer. His claim to recover hire charges was dismissed on the basis that he had refused the insurer’s reasonable offer.
Both parties appealed on the basis that they had not acted unreasonably in not responding to the insurers’ offers and even if it was unreasonable to have failed to respond, they could nevertheless recover the hire charges at the rate that the insurers would themselves have had to pay.
It was held that a Claimant who had been deprived of the use of his car by the negligence of another party only had to take reasonable steps to mitigate his claim for that loss of use and he could not be said to act unreasonably if he made or continued his own car hire arrangements, unless he was made aware that that could be done more cheaply by the Defendant than his own arrangements. In the instant cases, there was loss to both Appellants because their cars had to be repaired and they needed replacement cars during the period of repair. That loss could not be wiped out by an offer from the Respondent’s insurers to provide a replacement car. Therefore the Claimant was entitled to recover at least the cost which the Defendant could show he would reasonably have incurred and should not forfeit his claim for damages altogether.
GW (a child) v Clifford Hill
The Claimant, a 10 year old boy, received £2,750.00 after sustaining whiplash injuries in a road traffic accident in March 2007. He subsequently suffered travel anxiety.
In March 2007 the Claimant was a passenger in a vehicle when it was involved in a road traffic accident. The car was hit in the rear by the Defendant’s vehicle. The Claimant suffered a whiplash injury to his neck and travel anxiety. All symptoms were resolved within 12 months.
Alan Armsden (Executor of the Estate of Rachael Cheesewright, deceased) v Kent Police
The police force appealed against the decision that a road traffic accident had been caused by the negligent driving of a police officer. The police had been responding to an emergency and had been driving fast along a main road using the blue warning light but not the siren. After driving round a bend they approached a T junction as the car driven by the deceased emerged from a minor road. The 2 cars collided and Ms Cheesewright was killed in the accident.
The Judge found that the deceased’s car had been stationary when the police officers had seen her and that the police officers had been negligent in failing to use the siren when approaching the bend, the speed at which they had been driving round the bend and at which they had come out of the bend, and in assuming that the deceased had seen them when she stopped at the junction.
It was held that if the deceased had been looking right before pulling out from the junction, she would have seen the police car approaching with its blue flashing lights and would not have moved off unless she miscalculated its speed and the time she required to clear the junction. The police were entitled to assume that a person driving a car at that junction would not emerge without keeping a look out to the right. The deceased had therefore been negligent. However the speed at which the police car was driving was found to have been excessive. The driver would have found it very difficult, if not impossible, to avoid colliding with a car that had begun to enter the junction. The fact that the police car had not been using its siren affected the speed at which it had been safe for the police car to travel, as the siren would have given greater and earlier warning of its approach. Not using the siren had exacerbated the danger that there might be a car in or about to enter the junction. It therefore followed that the excessive speed of the police car was a contributory cause of the accident and its gravity. Responsibility for the accident was attributed as 40% to the police force and 60% to the deceased