October 2008 Case Law Reports
Steven Monk –v- P C Harrington Limited, HTC Plant Hire Limited and Multiplex Constructions Limited [2008] EWHC 1879(QB)
Mr Monk, a self-employed foreman, claimed damages for psychiatric injury arising out of an accident at work which happened at Wembley Stadium. During construction, a temporary platform had collapsed killing one man and injuring another. Mr Monk went to the scene to try and help. He escaped any physical injury but as a result of what he saw, he developed symptoms of post-traumatic stress disorder and had to stop work.
The First Defendant admitted liability. The issue for the Court to decide was whether Mr Monk was entitled to claim against the Defendant for any psychiatric injury. The Claimant maintained that he was a “primary victim” and his involvement was such that he fulfilled the conditions necessary to recover as a rescuer / and or as an unwilling participant.
It was held that on the evidence, although Mr Monk’s actions entitled him to be called a rescuer, it was unlikely that he really believed he was putting his own safety at risk. If he genuinely did hold that belief that it was unreasonable. Accordingly, Mr Monk could not claim to be a primary victim and recover as a rescuer. In addition, he could only recover damages as an unwilling participant if he believed he was instrumental in causing death or injury to another person. The Judge found that there was no reasonable basis for the Claimant’s belief that he might have caused the accident and it was therefore not reasonably foreseeable that someone in his position would suffer psychiatric injury.
The Judge therefore found that the Claimant was a “secondary victim” whose PTSD was caused by witnessing the aftermath of an accident in which he was not directly involved as a participant. In order to recover damages as a secondary victim, the Claimant would need to satisfy the guidelines as set out in Alcock –v- Chief Constable of Yorkshire (1992), namely that he close ties of love and affection, which he did not. Accordingly his claim failed.
Darren Garraway –v- David Shirtliff [2008]
On 21st August 2004 the Claimant was driving a motorcycle in a queue of traffic which was attempting to enter a roundabout. There was a pedestrian crossing between the traffic and the roundabout. The Claimant undertook vehicles in the queue, crossed the pedestrian crossing and entered the roundabout as the Defendant drove his vehicle out from the next exit and collided with the Claimant. The Claimant suffered injuries to his neck, chest, back, arms and legs.
The Claimant was subsequently convicted of driving without due care and attention. He brought an action against the Defendant for personal injuries and damages, claiming that the Defendant was negligent in failing to give way to him when he entered the roundabout. The Claimant argued that he was not speeding and that the Defendant would have had a clear view of the traffic to his right. Liability was disputed.
Although the Claimant was convicted in relation to undertaking vehicles at a pedestrian crossing, he succeeded in arguing that his actions were irrelevant to the accident because he had entered the roundabout correctly. The Defendant was held to be fully at fault.
Ryan St George (a patient suing by his father and Litigation Friend David St George) –v- Home Office [2008] EWCA Civ1068
In this case, the Home Office appealed against a decision that its breach of duty had caused brain damage sustained by Mr St George, a former prisoner. When Mr St George had entered the prison at the age of 29, he had been abusing alcohol and drugs since 16. He informed the prison staff that he was a heroin user who drank heavily and had previously had withdrawal seizures. He was allocated a top bunk bed. A few days later, he suffered a withdrawal seizure and fell from the bed, suffering a head wound. The seizure developed into “status epilepticus” and he sustained severe brain damage.
The Judge accepted that the head injury caused the seizure to develop into status and that, but for the head injury, the seizure could not have caused the brain damage that resulted. The Judge then held that Mr St George’s damages should be reduced by 15% because his injuries were caused partly by his addiction and therefore his “fault” within the meaning of the Law Reform (Contributory Negligence) Act 1945 s1(1).
The Home Office argued that the Judge had been wrong to prefer the evidence of Mr St George’s expert medical witness. The Home Office submitted that the lack of any support in the medical literature for the theory that the head injury could have triggered the status meant that the Judge’s conclusions had no support beyond Mr St George’s expert’s theory.
It was held that where there was a difference of opinion between experts on a fundamental point, the Court had to justify its preference for one over the other by an analysis of the underlying material and of their reasoning. It was not sufficient to accept the opinion of one expert on the ground that he had given his evidence confidently. However, it could not be said that the Judge had based his conclusion primarily on his preference for the evidence of Mr St George’s expert witness because of the confident way he gave it. The medical literature showed that withdrawal seizures on their own did not result in “status” and that there must be another factor that, taken into conjunction with the withdrawal seizure, would lead to “status”.
On the issue of contributory negligence, it was held that Mr St George’s fault in becoming addicted to drugs and alcohol in his mid-teens was not a potent cause of the status and the consequent brain damage that was triggered by his fall. It was therefore too remote in time, place and circumstance and was not sufficiently connected with the negligence of the prison staff to be properly regarded as a cause of the injury. The staff knew or ought to have known that Mr St George might suffer from withdrawal seizures, yet they placed him in a top bunk. Mr St George did therefore not have his damages reduced for contributory negligence.
Janis Williams –v- Calvin Jervis (aka Lex Komatsu) [2008] EWHC 2348(QB)
The Claimant claimed damages for personal injuries sustained following a road traffic accident. Whilst driving her car and having stopped at a zebra crossing, she was hit from the rear by a van driven by the Defendant which had failed to stop in time. The Defendant admitted primary liability but alleged contributory negligence. The Claimant alleged that as a result of the accident she had suffered, amongst other things, a brain injury that resulted in impaired cognitive function and personality change. The Claimant did not continue in her previous employment as a nurse and claimed damages for personal injuries, including loss of past and future earnings.
The Defendant submitted that the Claimant had been contributory negligent as her brake lights had not been working and she had been using a hand-held telephone. He further contended that the Claimant was not a reliable witness and that she had exaggerated her symptoms.
The Defendant also argued that the violence with which his van was struck had amounted to a minor impact, insufficient to cause such injuries.
It was held that the Defendant’s evidence about the Claimant using a hand-held telephone and the broken lights was unsatisfactory. There was no evidence of contributory negligence and the Claimant’s conduct had not played a part in causing the accident.
When considering whether the Claimant was a truthful witness as to her evidence relating to the post-accident symptoms, her evidence about the nature and intensity of the symptoms was accepted. On the evidence it was accepted that the Claimant had suffered from post-traumatic amnesia and the cognitive changes which the Claimant complained of were confirmed by witnesses from their own observations. The Claimant was a very different person from that which she had been pre-accident. Those symptoms were genuine and a consequence of the accident. Therefore on the balance of probabilities, she had suffered a brain injury that gave rise to the cognitive dysfunction complained of, for which there was little chance of improvement. Had the accident not happened, the Claimant would have stopped working at 65 years old. She was unable to return to her pre-accident nursing career and was therefore entitled to future loss of earnings until age 65.
Hames –v- Ferguson and others [2008] CA (Civ Div)
The Claimant was the back seat passenger in a car driven by the First Defendant (F). The Second Defendant (W) was friends with the occupants of F’s car and was driving close behind. Both cars were travelling at excessive speed in convoy. As they rounded a bend, F collided with a tractor and trailer that were turning into a field and the Claimant suffered severe head injuries. W also collided with the trailer.
It was common ground that the Claimant’s injuries were caused by the first collision involving F. The Judge held that both F and W’s negligence caused the Claimant’s injuries on the basis that they had both been driving at excessive speed and that F had thereby been distracted. He apportioned liability between them, finding W 40% liable.
W appealed against the decision, arguing that the Judge’s findings had been unsupported by the facts, as there was no evidential basis for concluding that his driving had had an adverse influence on F’s driving when he collided with the tractor.
It was held that the Judge was entitled to find that W’s driving had had an adverse influence on F’s driving. The Judge’s findings were plainly supported by the evidence. If two men were driving in close convoy at excessive speed down a country lane, each was bound to be distracting the other. The inferences the Judge had drawn from his findings were reasonable and proper.