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November 2009 Case Law Reports

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Jonathan Harvey v Plymouth County Council

The Claimant claimed damages for an injury sustained on the Defendant’s land under the Occupiers Liability Act 1957.  The case concerned an area of land owned by the local authority since the 1980’s.  The land was licensed to Tesco for a period of 2 years in 1985, the license of which expired with the effluxion of time.  The local authority alleged that they had been unaware that they owned the land until after the accident as no-one employed by the Defendant had actively considered the land.  They did however admit that they occupied the land.

It was held that the local authority should have known when the license determined and as the owner had breached its common duty of care towards the Claimant in maintaining and keeping the land safe.  It further held that it is implicit in the acceptance of occupation that the occupier either knows or ought to know the uses to which the land is or may reasonably foreseeably be put.  The court decided that the Claimant bear 75% responsibility for contributory negligence as he was intoxicated with alcohol at the time of the accident.

Karen Sienkiewicz (administratrix of the estate of Enid Costello, deceased) v Greif (UK) Ltd

This was an appeal claim for death due to mesothelioma where the deceased was subject to environmental exposure of asbestos in her local area but also exposed in her job as an office worker in a factory.  The Judge at first instance concluded that the claim failed because the Claimant had not shown that the tortious occupational risk more than doubled the non-tortious environmental exposure.

The Court of Appeal overturned this decision and said that the correct test on causation was whether or not the tortious exposure had materially increased the risk as specifically ordered by Parliament in the Compensation Act 2006, not whether the risk had been doubled.  The appeal was therefore allowed.

Vivian Imerman v (1) Robert Tchenguiz (2) Vincent Tchenguiz (3) Tim McClean (4) Nouri Obayda (5) Sarosh Zaiwalla

Following Summary Judgment against the respondents preventing them from copying confidential material in their possession, it was agreed that hard-copy documents except those subject to legal professional privilege would be delivered to the applicants.  Delivery did not occur and the applicant made an application for an Unless Order.  The respondents claimed protection for legal professional privilege, the requirement of the documents for the pending application for permission to appeal, the requirement of the documents for issued not covered by the Summary Judgment and the need for the retention of documents for insurance purposes.

It was held that legal professional privilege did not apply because the documents had been sent to Counsel as part of their instructions, that the application could be adequately covered by retention of the Summary Judgment bundles and when the documents were required, an application for disclosure could be made by the respondents.  It was also held that the documents would be kept securely by the applicant for insurance purposes.  The Judge decided that an Unless Order would be inappropriate in the circumstances and chose to issue an Order with a set date for delivery.

Stankovic V Aintree University Hospitals Nhs Foundation Trust (2009)

The Claimant suffered an injury to her finger in August 2007 and was diagnosed as having fractured her finger in December 2007 as a result of the initial injury.  She was referred to physiotherapy but returned to her GP in May 2008 as she had not received any communication regarding the physiotherapy.  Between June and July 2008 the Claimant underwent 5 sessions of physiotherapy.

She brought an action for the Defendant’s negligence in failing to organise physiotherapy within a reasonable period resulting in prolonged pain between December 2007 and June 2008.  Liability was admitted and the Claimant was awarded £1,000 for pain, suffering and loss of amenity.

Dianne Willmore V Knowsley Metropolitan Borough Council

We reported on this case in August 2009 and have now received the decision of the appeal made by the Defendant.  The Local Authority appealed as they believed that the Judge had considered whether there had been exposure to a risk of asbestos, rather than to a risk of harm.

The Court of Appeal upheld the previous decision and concluded that once exposure above a minimum level was found, a risk of harm was established.

Marc Preston v (1) City Electrical Factors Ltd (2) Thomas Adam Stockham

The Claimant was knocked down by a van driven by the second Defendant who was an employee of the first Defendant.  Liability was admitted together with agreed contributory negligence of 50% as the Claimant was drunk at the time of the accident.  It was accepted that the accident caused a brain injury but debated whether it had caused alcohol dependency syndrome.  It was also debated whether case management and support was required as a result of the brain injury or the alcohol problems.  Full causation and quantum were to be agreed at a future trial.

An interim payment of £100,000 had already been made and a second interim payment of the same amount had been requested.  The Defendants argued that a further payment of this amount could detrimentally affect the possibility of a periodical payments order in any future trial.  The Court felt that in the circumstances the periodical payments order would be too rigid as the Claimant’s future involved contingencies which could give rise to very substantial needs.  A lump sum was preferred by the Claimant so that funds could be used to guard against any contingencies or used to be able to meet needs arising from them.

It was held that a periodical payments order would not be in the best interest of the Claimant and a further interim payment was reasonably necessary.

Martine Widlake v BAA Ltd

The Claimant had succeeded in a claim for personal injuries against the Defendant but had been ordered to pay the Defendant’s costs.  The issues were that she had been found to have deliberately concealed previous related medical history in an attempt to increase her compensation but, the Defendant had also failed to make a better Part 36 offer than what the Claimant was awarded.

The Court of Appeal held that the Claimant’s exaggeration meant she should not recover her costs.  It similarly held that as the Defendant had failed to beat the Claimant’s award for damages with their Part 36 offer they should also not recover their costs.  It was concluded that in all the circumstances the right order was to make no order for costs.

Trevor Martin Horsley V (1) Cascade Insulation Services Ltd (2) C&D (Insulation Operations) Ltd (3) Pinnacle Services Ltd

The Claimant was exposed to asbestos between 1976 and 1977 working for the 1st Defendant and 8 months working for the 2nd Defendant and contracted asbestosis.  It was agreed that the total contribution towards liability for the asbestosis was 54% being 23% for the 1st Defendant and 31% for the second Defendant.  The Claimant had been a heavy smoker for 35 years and had confirmed that he did not intend to give this habit up.

It was held that the Defendant had to take the victim as he finds him but the Claimant’s smoking was considered for contributory negligence in relation to the prospects of developing lung cancer in the future.  The Court discounted 20% of the award for the Claimant’s contributory negligence.

Susan Parker V TUI UK Ltd

The Claimant booked a ski holiday with the Defendant tour operator.  The Defendant provided details of a tobogganing event with a third party which the Claimant agreed to attend.  The third party organised the entire event including transport to and from the event and all instructions regarding and during the event.

It was held that the Defendant owed a duty of care in tort to the Claimant but they had not acted in breach of any such duty.  This was upheld on appeal.