March 2010 Case Law Reports
JESSICA BROWN (A MINOR BY HER MOTHER & LITIGATION FRIEND CAROLE BROWN) v LIAM EMERY (2010)
Where there was a real dispute about the future appropriateness of private accommodation in respect of the care of a victim of a road traffic accident, the court ordered an interim payment of £250,000 without taking into account the costs of such accommodation.
The Claimant had suffered a serious head injury as a rear seat passenger in a motor vehicle driven by the Defendant. As a result of the injury she was only capable of very basic interaction at a very limited level. She remained hospitalised in a rehabilitation unit. An interim payment was applied for in order to fund the purchase of suitable accommodation where she could live with her family once discharged, an appropriate vehicle to transport her to and from hospital and certain case management costs.
However, there would be a dispute at trial as to whether it would be in the Claimant's best interests for her to remain in publicly funded accommodation or for her to be cared for at a home with her parents. It followed that if the application was granted there was the possibility that there would be an "unlevel playing field", which was a factor that had to be taken into account in determining the application. Nevertheless, there was no dispute that the likely capital sum to be awarded in respect of pain, suffering and past losses, assessed on a conservative basis, would be in the order of £220,000, plus damages for loss of future earnings in the region of £175,000.
Accordingly, the Claimant was granted an interim payment of £250,000, which was about 75-80 per cent of the sum likely to be awarded at trial.
(1) ELLIOTT GROUP LIMITED (2) ALGECO SAS (3) ALGECO SA BELGIQUE (4) ALGECO GMBH (5) ALGECO HOLDINGS BV v (1) GECC UK (FORMERLY GE CAPITAL CORPORATION) (2) GE EQUIPMENT SERVICES HOLDING BV (3) EURO-TREC (FRANCE) SAS (4) GE RAIL SERVICES GMBH (FORMERLY GE MODULAR SPACE GMBH) (2010)
A delay of nearly six weeks to the original date for disclosure in the timetable of a trial with a fixed hearing date did not prejudice any of the parties and it was not appropriate to adjourn the trial where the case could properly and fairly be prepared in the time remaining before the trial date.
The applicants sought an adjournment of their trial on the basis that at the time of the case management conference they had underestimated the amount of documents, particularly electronic material, which they were likely to have in their possession. Furthermore there had been delays to their experts' testing regime; and they contended that a delay to the trial would allow a structured alternative dispute resolution to take place.
The application to adjourn was refused. It would require a very strong case for a trial to be adjourned merely because a party's disclosure was a more extensive task than was originally contemplated. No such case existed. Moreover, the opportunity to allow parties to settle a case was not a good ground for an adjournment of a fixed trial date. It was held that the case could properly and fairly be prepared in the time remaining before the trial.
PAUL WYNNE JONES v SUE KANEY (2010)
The defendant was an expert witness in a road traffic accident in which the claimant was the injured party. She was instructed as a forensic expert in psychology on behalf of the claimant.
There was a dispute between experts as to whether the claimant was suffering from Post Traumatic Stress Disorder (PTSD) or was consciously or unconsciously exaggerating his injuries. Whilst the defendant had initially reported that the claimant had symptoms that suggested a diagnosis of PTSD, the Consultant Psychiatrist, instructed by the defendant’s insurance company in the road traffic claim, concluded that he was exaggerating his physical symptoms.
The District Judge ordered a joint meeting of experts, following which a joint statement was produced signed by the defendant and the other expert. The statement concluded that the claimant was not suffering from PTSD. Moreover, it described the claimant as "very deceptive and deceitful in his reporting". The claimant's solicitors wished to know why the expert had changed her opinion of the claimant and corresponded with her. She admitted that the joint statement had not been reflective of her views but that she had signed it 'under some pressure'. She was of the opinion that the claimant had suffered from PTSD which had now resolved. In addition, her true view was that the claimant was 'evasive' rather than 'deceptive'.
The claimant’s solicitors then tried to persuade the District Judge that the defendant should no longer act as an expert in the RTA proceedings. This was rejected and the matter was settled for a sum that was considerably less than would have been the case if the defendant had not signed the Joint Statement in the terms that she did.
The claimant sued the defendant in negligence. The defendant did not defend on the merits but raised the witness immunity defence. The defendant sought summary judgment to strike out the claim.
The judge said that it was very difficult to see why an expert who owed a duty of care to a claimant when first advising and preparing reports, should not continue to owe that duty when signing a joint statement, when ordinary principles of professional competence would suggest that she needed to read it, and ensure herself that it reflected her true opinion, and was based upon proper facts or professional judgment.
However he accepted the defendant’s witness immunity defence and granted summary judgment to the defendant expert and struck out the claim. But he also granted a certificate to appeal directly to the Supreme Court.
CRAIG LEE GREENHOUGH v JUGINROY GROUP (2009)
The claimant, a 24-year-old man, received £6,270 for the whiplash injuries to his neck and lower-back sustained in a road traffic accident in June 2007 and the associated psychological injuries suffered on the basis that he would make a full recovery within 25 months from the date of the accident.
The claimant was travelling in the front passenger seat of a marked police car that was pursuing a vehicle owned by the defendant along the motorway, after the driver had persistently refused to stop D's vehicle. During the pursuit, the driver drove the vehicle into the rear near-side of the police car.
The defendant was found to be 100 per cent liable.
The Claimant injured his neck and lower-back and was diagnosed as having myofacial pain in his neck, and lower-back strain. He underwent a course of physiotherapy of six treatment sessions, for approximately two months he did not exercise at the gym and for approximately six months he was unable to continue with his hobby of playing non-competitive five-a-side football.
C also experienced a psychological reaction of mild to moderate severity involving psychological
distress, flashbacks and nightmares. Most symptoms resolved within two months after the accident.
The Claimant was awarded £6,000 for pain, suffering and loss of amenity and special damages and interest of £270.
GOULDBOURN v BALKAN HOLIDAYS LTD & ANOR (2010)
In a claim for damages for personal injury sustained in ski resort in Bulgaria, a judge had been entitled to hold that the question of whether a ski instructor had exercised reasonable care and skill in respect of his instructions to a novice skier had to be judged against relevant local standards. In the absence of such evidence, the skier had failed to establish a claim in negligence.
The claimant skier appealed against a decision dismissing her claim for damages for personal injury sustained during a skiing holiday in Bulgaria which had been organised by the tour operator. As part of the holiday package, she was provided with an experienced ski instructor who provided her and others in her group with skiing lessons.
It was common ground that liability arose under the Package Travel, Package Holidays and Package Tours Regulations 1992 reg.15(2). An issue arose as to whether the instructor had exercised reasonable care and skill in respect of his instructions to G. The trial judge held that the ski slope in question was not inappropriate for the claimant.
The appeal was dismissed. The Court of Appeal determined that the judge had been entitled to hold that the conduct of the instructor had to be judged against the relevant local standards in Bulgaria, and that, in the absence of such evidence, the claimant failed to establish negligence. The crucial finding of the judge was that the ski slope in question was not inappropriate for the claimant on the day in question.
TOMASZ KRYSZTOF KMIECIC v NADIA FRANCE ISAACS (2010)
A householder did not owe a duty of care under the Work at Height Regulations 2005 and the Construction (Health, Safety and Welfare) Regulations 1996 to a worker who had fallen off a ladder whilst attempting to repair her roof, as she did not assume control in the sense of being able to direct how the worker carried out his work. In the light of her position as a householder, she could not owe a duty of care under the Provision and Use of Work Equipment Regulations 1998.
The claimant claimed damages against the defendant for personal injury loss and damage, sustained as a result of an accident at the defendant's home. The accident had happened whilst the claimant was carrying out work as a casual labourer on the roof of the defendant's garage.
The court held that the defendant did not owe the claimant a duty of care under the 2005 or the 1996 Regulations. The 2005 Regulations applied, in the case of a non-employer, to "work by a person under his control, to the extent of his control". The 1996 Regulations imposed a duty on a non-employer who "controlled the way in which the construction work was carried out by a person at work" to comply with the Regulations "insofar as they related to matters which were within his control".
The defendant did not assume control over the claimant, in the sense of being able to direct how he carried out his work. She had no right to instruct him or direct him in his work. Accordingly, there was no evidence of negligence on the defendant's part and therefore judgment was given for defendant
MURPHY v SMITH NEWS TRADING LTD & ANOR (2010)
For the purposes of a personal injury claim arising out of a road traffic collision, the court determined which one of the two drivers had caused the accident as a result of crossing a junction against a red traffic light.
The court had to determine liability in a claim for damages for personal injury arising out of a road traffic collision between a lorry and a car in which the claimant passengers were travelling. The lorry driver told police officers both at the scene and in interview that he had entered the junction on a green light. He had also told a witness that the car driver had "jumped the lights".
Two road traffic accident investigators agreed that it would have been impossible for northbound traffic and westbound traffic to have been shown a green light simultaneously, and that one of the drivers must have entered the junction against a red light.
It was held that the traffic lights had been working correctly on the day of the collision and as the lorry approached the junction the lights were green in his favour. They were still green when he entered the junction. The lorry driver had been clear at the scene that the car had jumped the lights, and remained consistent on that fact throughout his conversations with the police and in his oral evidence. Moreover, the available circumstantial evidence supported the proposition that, on the balance of probabilities, the car driver had crossed the traffic lights against a red light. The car driver was therefore deemed wholly responsible for the road traffic accident as a result of crossing the junction against a red light.
SIMON EDWARDS (BY HIS FATHER & LITIGATION FRIEND KEITH EDWARDS) v STUART MARTIN (2010)
The court assessed damages in relation to injuries resulting from a road traffic accident by reference to the Judicial Studies Board Guidelines, including damages for pain, suffering and loss of amenity in the sum of £90,000 taking into account the claimant's moderate brain damage and the small residual risk of epilepsy.
The court was required to assess the amount of damages owed to the claimant, aged 41 at the date of award, as against the defendant in respect of injuries arising out of a road traffic accident. The claimant had sustained a severe and life-threatening head injury resulting in a permanent loss of cognitive functioning with permanent emotional and behavioural problems, diagnosed as an organic personality disorder.
Liability was admitted, subject to a deduction of 15 per cent for the risk of finding contributory negligence for a failure to wear a seat belt.
It was held that this was a case that fell within the "moderate brain damage" category of the Judicial Studies Board Guidelines. There was no more than modest intellectual deficit, but the personality change was sufficiently severe and multi-faceted that an award towards the upper range of the second level was appropriate. Moreover, there remained a residual small risk of epilepsy and an appropriate figure for pain, suffering and loss of amenity was £90,000.
The court assessed the claimant's past loss of earnings against the background of annual increases having been awarded to his employee comparators throughout the years since the accident. The claimant was also entitled to his past miscellaneous expenses, past care and case management costs and costs of the Court of Protection and appointment of a financial deputy. The psychiatric effects of E's head injury made it impractical for him to continue to live with his family. Such a situation was reasonably foreseeable as a consequence of the injury that he suffered. Consequently, he was entitled to the expenses incurred in the purchase and furnishing of his new property.
CATHERINE ROGERS v ANGELA STANLEY (2009)
The claimant, a 39-year-old woman, received £55,000 for fractures to both wrists, bruising and post-traumatic stress disorder sustained in a road traffic accident in June 2007. She was left with weakness and intermittent pain in her wrists and suffered loss of congenial employment and earning capacity, and disadvantage in the labour market.
The claimant was a passenger in a vehicle when it was struck by a car driven by the defendant who pulled out from a drive directly into the path of the vehicle the claimant was travelling in. Liability was admitted.
The claimant was admitted to hospital and underwent surgery to treat her wrist fractures. The cast and wires were removed in the fracture clinic approximately six weeks after the accident. The bruising resolved within a few weeks. C was then referred to her GP for a physiotherapy referral.
The claimant also sustained post-traumatic stress disorder in the form of nightmares, flashbacks and active avoidance of the site of the accident. She remained an anxious driver and it was recommended that she undergo a course of Cognitive Behavioural Therapy. However, she was involved in a further accident which exacerbated the symptoms from the first accident and made her recovery more problematic. The claimant was married with three young children and during her period of incapacity she required a significant amount of care and assistance in caring for her family, which was provided gratuitously by family members.
Prior to becoming a part-time teaching assistant in a school, the claimant was a qualified midwife and she had always contemplated a return to midwifery when her children were older. She claimed that she would no longer be able to return to her former profession due to the nature of the work involved and therefore claimed loss of congenial employment. Further C would have achieved a significantly higher income and pension benefit through the NHS and claimed loss of earning capacity.
The case was settled on a global basis with no particular breakdown of damages. However, the following breakdown was estimated by the claimant's solicitors:
Pain, suffering, and loss of amenity: £20,000; Future care and assistance: £20,000; Loss of congenial employment and earning capacity, and disadvantage in the labour market: £10,000. Breakdown of Special Damages: Past treatment costs: £5,000.