March 2009 Case Law Reports
Fitzpatrick Contractors Limited v Tyco Fire and Integrated Solutions (UK) Limited
The court was required to determine costs in litigation between the Claimant contractors (F) and the Defendant company (T). F had made a Part 36 offer in accordance with the Civil Procedure Rules 1998 to settle litigation between the parties. The relevant period for acceptance expired and there was a trial of preliminary issues on which F were substantially successful. The trial was adjourned and in the meantime, T wrote to F accepting the Part 36 offer out of time.
F contended that, had there been a trial and damages were recovered in the same amount as the Part 36 offer, it would have been entitled to indemnity costs, because of the express wording of Rule 36.14.
The usual basis on the assessment of costs was the standard basis and if there was an entitlement to seek indemnity costs then that was expressly spelled out in the Civil Procedure Rules. There was no basis under the CPR which would allow the court to order indemnity costs for any other reason or any other basis. There was a right to claim the recovery of indemnity costs but no rebuttal presumption that such costs would be recovered. Accordingly, F’s claim for indemnity costs failed as a matter of principle. Whilst the case was complex, the parties’ approach was generally reasonable on both sides and a settlement 3 months before trial, at a figure that represented about half of F’s claim, was unexceptional result. It was therefore impossible to say that there was any basis on which F could be entitled to have its costs assessed on an indemnity basis under Rule 44.3.
However as F made a reasonable Part 36 offer and it took T almost a year to conclude that the offer should be taken, the case was one where it was appropriate to order interest on costs at 1% over base rate.
William Thomas Robert Stanton (A patient proceeding by his father and Litigation Friend Robert Stanton) v Lynn Denise Collinson
The court was required to determine whether damages to be awarded to the Claimant (S) should be reduced to reflect any contributory negligence by him. The deceased Defendant (X) had agreed to drive 4 teenage passengers, including S, in his car after they had left a bar at night. S and another girl had travelled, one on top of other, in the front passenger seat whilst the two other passengers had travelled in the back. None of them had worn a seatbelt. X had exceeded the speed limit and his vehicle subsequently collided with another car. X died and S sustained a serious hand injury and a severe head injury resulting in brain damage.
One of the passengers gave evidence that he had heard S encourage X to drive fast but also agreed that X had had a tendency to drive his car fast, had modified his car and at the time of the accident had been in a hurry to get to a racing club meeting. The engineering experts agreed that, on the balance of probabilities, had Sworn a seatbelt, it would have significantly reduced the severity of his head injury but not completely prevented serious injury to his head. It was held that the negligent driver had to bear by far the greater share of responsibility, his negligence being a prime cause of the whole of the damage. The extent to which the head injury would have given rise to less severe cognitive deficits than those actually suffered by S was a medical and probably Neurological question. However, the Defendant had adduced no medical evidence and medical evidence that had been served had not addressed that issue. The burden of proving that, had a seatbelt been worn, the head injury would have been less severe lay upon the Defendant. That burden had not been discharged. Furthermore, there was no evidence that S’s hand injury would have been reduced or prevented if he had worn a seatbelt. The Claimant was therefore entitled to recover damages on a full liability basi.
Richard Lambert v Jenny Natasha Clayton (Administrix of the Estate of Paul Michael Clayton, deceased)
The Claimant (L) appealed against a decision that he was liable for a fatal road traffic accident. The accident occurred on a single carriageway with a broken white line in the centre. It was subject to a speed limit of 60 miles per hour. Although the road was straight, it crossed undulating countryside. The accident occurred when L was turning into a lane to access his farm, in a pickup towing a cattle trailer. A motorcyclist came over the summit at high speed and collided with the rear nearside of the pickup and the front nearside corner of the trailer. The motorcyclist was killed instantly.
The Judge at first instance had held that the Claimant was liable, subject to a deduction of 75% for the contributory negligence of the deceased motorcyclist. The Judge found that the Claimant was negligent in deciding to continue his turn into the lane when he saw the motorcycle coming over the summit and that he could and should have aborted the turn when he saw the motorcycle.
The Court of Appeal decided that the Judge was not critical of the Claimant’s driving in any respect other than that he made the wrong choice when faced with a split second decision. The only criticism was that, when he saw the motorcycle come over the summit, he should have chosen to abort the turn rather than to press on. The Judge did not explain that conclusion and he should have done so. Nor did he discuss the question of whether the Claimant’s split second decision was negligent at the time it was taken. Accordingly the Appeal Court had to review the matter.
The Appeal Court held that the Claimant’s decision to go on was not negligent at the time he took it in light of the position he was in and what he knew or ought to have known at that moment. In that first split second, the fact that a vehicle appeared on the summit, at a speed the Claimant could not immediately assess, did not create an imperative that the Claimant should immediately abort the turn. His duty was to take reasonable care for the oncoming vehicle’s safety and also to give it precedence. However giving precedence did not necessarily entail allowing an oncoming vehicle to proceed unimpeded at a very fast speed. It was not necessarily negligent, particularly on a country road where large slow vehicles had to use the highway causing another driver to slow down. In the circumstances, negligence could not be inferred from the fact that the collision occurred. The Claimant’s reaction and decision did not fall below the standard of reasonable competence. The overwhelming cause of the accident was that the motorcyclist was driving too fast over a blind summit and took no action to break or swerve.
The appeal was therefore allowed.
Jewel Ahmed Toropdar v D (a minor by the official solicitor as his Litigation Friend)
The Claimant (T) claimed a declaration that he was not liable for personal injuries sustained by the Defendant child in a road traffic accident. T was driving in a residential area where the speed limit was 30 miles per hour. D and his friends had been playing a game near to an education centre along that road. A bus driver gave evidence that there were always children around the centre. D had run across the street in front of a stationary bus and was struck by T’s car. As a result he suffered serious brain injury. T’s insurers instigated the claim in T’s name. Experts accepted T’s speed as having been 27.5 miles per hour at the time of the impact. The Defendant submitted that but for the speed at which T had been travelling, it was more probable than not that T could and should have avoided the collision or avoided causing the injuries the Defendant suffered.
The court held that a speed of 27.5 miles per hour was not a reasonable speed and was too fast for the street at that time. T had had no way of knowing who had been in front of the bus or along side its nearside at the front. He should have adjusted his speed as a precaution, as stated in the Highway Code. On the expert evidence, if T had been driving slower and had applied precautionary braking, the accident would not have occurred or D’s injuries would have been minor. T’s failure to adjust his speed and carry out precautionary braking were causative of D’s injury. T was therefore not entitled to a declaration that he was not liable. Accordingly the declaration was refused.
Erica Joyce Connor v Surrey County Council
The Claimant was a former employee of the Defendant and claimed damages for psychiatric injury arising out of her employment as a Head Teacher. The Claimant had been Head Teacher since 1998. The school was multicultural and most of the pupils were Muslim. As Head Teacher she was a member of the governing body. In 2003 two new members joined the body, both of whom were Muslims. Both sought to dominate the agenda at meetings and appeared to have an agenda to convert the school to an Islamic faith school. On occasions their approach extended to offensive verbal attacks and complaints of racism and Islamophobia. The problems had come to the attention of the local authority in 2003 by the leader of governor services, who was employed by the local authority. Concerns were expressed about the affect that the members’ behaviour had on the Claimant. In September 2005 the Claimant was signed off work with stress and depression which she attributed to her work environment and the lack of support by her employer.
It was held that to establish liability the Claimant had to prove that the possibility of psychiatric injury was foreseeable. On the evidence there were waning signs that the Claimant was stressed and in June 2004 concern was expressed of the affect that the new members had on the Claimant’s health. From that time the local authority ought to have considered the Claimant as someone in a vulnerable position, whose health was at risk and therefore called for more than usual consideration. The local authority should have foreseen that from June 2004 onwards, the Claimant was at risk of psychiatric injury from stress and it owed the Claimant a duty not to expose her to unreasonable risk of psychiatric injury. Accordingly it was held that the local authority had breached its duty of care and judgment was awarded to the Claimant for damages in the sum of £387,778.22 which included the sum of £25,000 for pain, suffering and loss of amenity.
Beverley Anne Barclay v British Airways Plc
The Claimant was attempting to take her seat on a flight operated by the Defendants, when her right foot suddenly slipped on a strip embedded in the floor of the aircraft. As a result she suffered injury to her knee. The Montreal Convention on International Carriage by Air 1999 enables an air passenger to claim compensation without having to establish any negligence if he or she is injured as a result of an accident. The case related to whether this was an “accident” for which the Defendant should be liable.
Article 17.1 of the Montreal Convention 1999 provides:-
“The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking”. The leading case on Article 17 of the Warsaw Convention, which was subsequently replaced by the Montreal Convention but is still applicable, is Air France v Saks in the United States Supreme Court. This case concluded that liability under Article 17 of the Warsaw Convention arises only if the passenger’s injury is caused by “An unexpected or unusual event or happening that is external to the passenger”. Accordingly in this case it was held that when the injury results from the passenger’s own internal reaction to the usual, normal and expected operation of the aircraft, it has not been caused by an accident and therefore Article 17 cannot apply. In the instant case the Court of Appeal were bound to conclude that there was no accident that was external to the Claimant, no event which happened independently of anything done or omitted by her. All that happened was that the Claimant’s foot came into contact with the strip and she fell.