May 2009 Case Law Reports
L (a child) v L Waddell
The Claimant, a 10 year old boy, received £5,985 for abdominal injuries sustained when he was bitten by a dog in September 2005. The Defendant was walking her Alsatian dog and stood to one side to let the child and his family pass. As the Claimant walked past, the dog jumped up and bit him on the abdomen. The Claimant bought an action alleging that the Defendant was negligent in failing to control her dog and prevent injuries being caused to other people.
Liability was admitted.
The Claimant sustained a laceration and 5 puncture wounds. However the scars were expected to become less noticeable as he grew. He recovered from most of the psychological injuries after 18 months from the accident date.
Richards v Ward
The Claimant, a 35 year old woman, received £7,895 for neck and back injuries sustained in a road traffic accident in September 2005. The majority of her symptoms resolved within 3 years and she was expected to have made a full recovery within 5 years from the date of the accident.
The Claimant was involved in a rear end shunt road traffic accident. Liability was admitted. She sustained soft tissue injuries to her neck and back. She also suffered pins and needles down her left arm associated with the neck injury. For the first month after the accident, she suffered significant sleep disturbance and the other symptoms were severe. By 5 months after the accident the symptoms were intermittent.
2 years after the accident the Claimant was still experiencing neck and back pain 2 or 3 times a month and pins and needles in her arm 2 or 3 times a week. At the trial 3 years after the accident, the back pain and pins and needles had resolved, but the Claimant continued to suffer neck pain 2 or 3 times a month. She took painkillers when necessary. She also suffered from travel anxiety for approximately 12 months after the accident.
The Claimant was expected to continue to suffer occasional symptoms at a nuisance level for approximately 1 or 2 years after trial. The Claimant was awarded £7,000 for pain, suffering and loss of amenity and £895 for other expenses.
Edward Guy Tibbatts v British Airways Plc
The Claimant claimed damages against his employer for injuries sustained to his shoulder whilst unloading baggage from a flight. He was diagnosed with a small tear in the rotator cuff which did not require surgery but required physiotherapy. He returned to work but then ceased employment on the basis of stress. The Claimant’s medical expert reported that the Claimant was suffering from restricted shoulder movement and discomfort. Liability was admitted.
At trial a joint statement from both parties experts was adduced in which it was stated that the symptoms found by the Claimant’s expert were probably the consequence of a underlying degenerative change in the shoulder. The Defendant contended that the accident was caused or contributed to by the Claimant’s own negligence in lifting the heavy bag.
On the evidence the court agreed that the Claimant had fully recovered from the injury when he was judged fit to return to work. The symptoms which the Claimant’s medical expert found on examination were not the result of the continuing consequences of the original injury, but as a result of degenerative changes. The stress which the Claimant developed in the period after his return to work had nothing to do with the injury. The Claimant was therefore awarded damages which included a sum for £2,500 for pain, suffering and loss of amenity. However, he bore a substantial responsibility for the injury sustained as he new that the bag was one which should have been handled by 2 people. Accordingly the amount of damages was reduced by one-third to reflect his contributory negligence.
Julius Whiston v London Strategic Health Authority
The Claimant suffered cerebral palsy after experiencing hypoxia around the time of his birth. There was a trial of a preliminary issue to determine whether the claim for damages brought by the Claimant against the Defendant Health Authority was statute barred. The Claimant was born in 1974. In August 2006 the claim was first notified to the Defendant Health Authority and proceedings were commenced in October 2006. It was accepted that the Claimant was aware that his disability was significant for the purposes of the Limitation Act 1980. What remained in issue was when he acquired knowledge, actual or constructive , that the disability might possibly be attributed to acts or omissions by medical staff at the time of his birth. The Claimant’s case was that he did not acquire the relevant knowledge until November 2005, when his mother for the first time informed him of her belief or suspicion that his cerebral palsy was caused by medical negligence.
The court decided that for the purposes of actual knowledge, the Claimant had discharged the burden of proof by demonstrating that he was not aware that his disability might be attributable to acts or omissions by medical staff at the time of his birth. On the balance of probabilities, the Claimant could not be fixed with constructive knowledge. He had not made the leap of assuming or even apparently suspecting that cerebral palsy associated with hypoxia would be attributable to acts or omissions on the part of medical staff. Accordingly the Claimant was entitled to proceed with his claim for damages as he only acquired the relevant knowledge many years later and his claim was then brought within the statutory limitation period.
Stephanie Baker v Quantum Clothing Group (1) Meridian Limited (2) and Pretty Polly Limited (3)
The Claimant claimed damages for noise induced hearing loss caused as a result of her working in the knitting industry. The court at first instance had held that the First Defendant (employer) was not liable for the noise induced hearing loss. The Claimant appealed that decision. The Second and Third Respondent employers cross appealed against the decision that they were liable for exposing employees to noise of a certain frequency after 1985. The Claimant had been employed from 1971 until 1991. Research into hearing had produced different opinions as to whether noise levels of between 85 decibels of daily personal noise exposure (lepd) and 90 decibels (a) lepd were damaging. The employees had allegedly been subjected to noise levels of between 85 dB(A) lepd and 90 dB(A) lepd. The Claimant had been provided with ear protectors in 1989.
The Judge at first instance found that the Second and Third Defendants were liable for exposing their employees to noise levels of 85 dB(A) lepd from early 1985 and that the Claimant had suffered noise induced hearing loss. However the Judge had held that the First Defendant employer had not reached its common law duty or Section 29 of the Factories Act 1961 as the workplaces had not been unsafe by reason of the noise to which they were exposed because the standard of safety under Section 29 was governed by the general standard which should reasonably have been adopted by employers at the relevant time, and that was exposure to 90 dB(A) lepd.
The Court of Appeal found that they were bound by the decision in Larner v British Steel [1993] that the obligation under Section 29 to ensure that a place of work was safe was absolute, subject to the defence of reasonable practicability which had to be pleaded and supported by evidence, and there was no requirement on a Claimant to establish that any accident was reasonable foreseeable. In addition by the early 1970s, any employer who kept abreast of developing knowledge would have known that prolonged exposure to 85 dB(A) lepd was harmful to some people. He would have known that the place of work was unsafe for an undefined section of the workforce and that he had to do what was reasonably practicable to make and keep it safe. All employers who had noisy processes should have been aware of the Department of Employment Code of Practice 1972 and that following this, an average sized employer in the knitting industry could and should have been able to make and informed assessment of the risk arising from the noise level in its workshops. It could not then be said that it was not reasonably practicable to provide ear protectors. Accordingly from early 1977, any employer of average size in the knitting industry that exposed its employees to 85 dB(A) lepd or more without protection was in breach of its duty under Section 29. It was therefore held that the First Defendant was liable for damage to the Claimant’s hearing attributable to her unprotected exposure from 1978.
Palmer v Cornwall County Council
A local authority was negligent for personal injuries sustained by a school pupil when he was on the school field during his lunch break. The Claimant had appealed a decision that the local authority was not liable in negligence for injuries sustained when he was hit in the eye by a rock thrown by a fellow pupil. At the time, there had been one dinner lady on duty outside to supervise the children. However, she gave evidence that she had directed her attention to the pupils in years 7 and 8 whilst she had only occasionally glanced at pupils in years 9 and 10. It was common ground between witnesses who had been fellow pupils that they knew that stone throwing was prohibited and that they would not have thrown stones if they had been aware that there was a supervisor nearby. The Judge at first instance had found that it was likely that the pupils had been adequately supervised.
The Claimant appealed to the Court of Appeal. The Claimant submitted that had there been proper supervision, no stone would have been thrown.
It was held that to provide one dinner lady supervisor to supervise over 150 pupils in years 7 and 8, only glancing occasionally at years 9 and 10, was negligent. Furthermore, the purpose of appropriate supervision was not only to deter children from taking part in dangerous activities, but also to stop dangerous activities if they did occur. There was no reason not to accept the evidence of the fellow pupils that if a supervisor had been near, they would not have thrown stones because they knew that stone throwing was prohibited. The appeal was therefore allowed.