Application of QOCS in third party claims

It is almost five years since the Jackson Reforms and the introduction of qualified one-way costs shifting (QOCS) in CPR 44.13 – 44.17, but the issues surrounding the applicability of QOCS still persist.

QOCS was implemented to protect claimants in injury claims against adverse costs after the end of recoverability of premiums for insuring against this risk from defendants in successful cases. If claimants are ordered to pay the defendant’s costs, their liability cannot exceed their damages and therefore losing claimants, save in exceptional circumstances, are not required to pay anything towards the successful defendant’s costs.

That is straightforward in cases that are undertaken on conditional fee agreements (CFAs) post April 2013. It is not so clear in cases which are undertaken on pre-April 2013 CFAs but additional claims are then brought by way of Part 20 proceedings post April 2013.

The Court of Appeal in the recent case of Corstorphine (an infant who proceeds by his mother and ligation friend Ellis) v Liverpool City Council had to determine whether the claimant who brought an injury claim under a pre-April 2013 CFA with an insurance policy, but lost was liable to pay the substantial costs incurred by the second and third defendants in the additional claim which the first defendant was ordered to pay.

The claimant had brought the claim initially against the first defendant, Liverpool City Council and the CFA terms contained reference to the “matter” which was the personal injury claim. Subsequently, the first defendant brought a Part 20 claim against the second and third defendants, who were respectively the manufacturers and sellers of the defective tyre swing which was the subject of the proceedings. Later the claimant joined the second and third defendants as parties to the main action. These claims were all commenced post April 2013. Both cases were ordered to be tried together.

The main case brought by claimant was dismissed and, in consequence, the Part 20 claim brought by the first defendant against the others was also dismissed. The judge held that there was no reason to depart from the general principle that costs follow the event and that the unsuccessful party (the claimant) should pay the other parties’ costs, including those which the first defendant had been ordered to pay to the second and third defendants.

This was appealed on the grounds that the judge erred in finding the pre-Jackson CFA also covered the claims against the second and third defendants in the main action, though the claimant later agreed to pay their costs. The claimant also argued that the judge had erred in exercising his discretion in directing that the first defendant was entitled to recover as part of its own claim for costs from the claimant the costs which it had been ordered to pay the second and third defendants in respect of the part 20 claim.

It was contended by the claimant that the “matter” referred to in the CFA was the claim being brought against the first defendant and not the additional claims against the second and third defendants. The first defendant argued the “matter” meant the “underlying dispute” which was the personal injury claim and included the primary and additional claims and the pre-Jackson CFA covered all claims. This therefore meant QOCS did not apply.

It was held on appeal that proceedings involving additional parties were commenced post the introduction of the Jackson reforms on 1 April 2013 and after the QOCS regime came into effect. There was no CFA or ATE that applied to the additional claims and therefore the claimant was not liable to meet the defendants’ costs in respect of the additional claims.

The court made a point referring to the case of Wagenaar v Weekend Travel Ltd, that if QOCS had applied to the main proceedings in this matter then the claimant would not have been ordered to pay the costs ordered against the defendant in respect of third party proceedings. It would be surprising if a different rule was to be applied in the present case.

Claimants are therefore protected by QOCS in respect of third party claims as well in the post Jackson era.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Personal injury claims reform gathers pace

The Ministry of Justice announced on Tuesday 20 March 2018 their intention to proceed with the Civil Liability Bill which mainly looked to implement reforms to low value personal injury claims (especially whiplash claims) and the method of calculation of the discount rate. The expected implementation date is April 2019.

The reforms to low value personal injury claims will raise the small claims limit for road traffic accident claims to £5,000 and for all other claims to £2,000. This will mean that there no legal costs will be recoverable for those claims and as a result injured claimants will have in general will have to make claims without legal representation. There will also be measures to reduce the level of damages paid for whiplash injuries by reference to a tariff system. The levels of damages will be much lower than currently awarded. This is all against a background that the level of whiplash cases has been steadily reducing since the introduction of the Jackson costs reforms in April 2013. The Ministry of Justice’s research indicated that £32 million will be saved by insurers from claims which no longer proceed (because claimants do not wish or are unable make claims without legal assistance) and claimant personal injury firms will lose £49 million in revenue. The whole basis is that the insurance industry will save significant sums and that this will be passed onto consumers with reductions in the levels of premiums. The writing has been on the wall for low personal injury claims for some time. If any firms continue to rely on those claims as their main work source then their viability will be seriously tested.

As a catastrophic injury lawyer, my focus has been on the proposed reforms to the calculation of the discount rate. The personal injury sector has had to deal with significant uncertainty since the rate was reduced from 2.5% to minus 0.75% in March 2017. As soon as the new rate was announced the Ministry of Justice confirmed that they would undertake reform to change the way it was calculated. Practitioners on both sides of the claimant and defendant divide have been left dealing with the uncertainty of not knowing what the rate could be at the time of settlement or trial. A claim for future loss could be reduced by as much as 35% with a rate change from minus 0.75% to say 1%.

The Ministry of Justice consider that research shows that the current rate is leading to over compensation as claimants do not invest as the law assumes they do. That contention ignores the views of the select committee who say that their needs to be more proof and research before reaching this conclusion.

In my view the Ministry of Justice’s rationale for the reform is flawed. Historically injured claimants have had to ensure that their settlements last for life and they have had to deal with two significant obstacles in achieving this. Firstly, that it was assumed for many years they were able to obtain a risk-free rate of return on their settlements of 2.5% per annum. Secondly, that their settlements do not take into account inevitable inflationary increases in the costs of their care packages and other needs for example aids and equipment. A claimant would be starting at a disadvantage and would have to invest more aggressively to try and ensure they have enough money to meet their ongoing basic needs.

The basis and the speed of the reforms to the calculation of the discount rate are in my view motivated to placate the insurance industry who have had to pay significant additional funds to injured claimants since the rate was reduced.

The proposed reforms are what were announced last year. Claimants will be assumed to be “low risk” rather than “very low risk” investors. The rate will be reviewed every 3 years by an independent expert panel. The reforms are expected to result in a rate increase to 0.5% or 1%.

Fundamental dishonesty – a new defendant tactic?

What constitutes “fundamental dishonesty” has recently been the focus of attention for personal injury practitioners, particularly since Section 57 of the Criminal Justice and Courts Act 2015 come into force on 13 April 2015. The section stipulates out that where the Court makes a finding of fundamental dishonesty then the whole claim must be dismissed, not just the dishonest element of the claim. It is a draconian measure and the only discretion the Court has is where it is considered that to dismiss the claim would result in a “substantial injustice” to the claimant then the claim does not have to be dismissed. However, in practice unless the dishonesty was minor against the backdrop of a significant claim, it is unlikely the court will often exercise this discretion.

The Act itself does not define what is meant by fundamental dishonesty, with Parliament leaving the parameters to judicial discretion. Despite this, guidance on what constituted “fundamental dishonesty” was largely absent until two recent decisions.

In London Organising Committee for the Olympic and Paralympic Games (in Liquidation) v Sinfield, the High Court found that to constitute “fundamental dishonesty” the actions of the claimant must “substantially effect” the case for the defendant to succeed in an application to have it struck out, even if the dishonesty only relates relate to part of the damages sought. In this claim, the claimant advanced as a head of claim, the services of a gardener, pleading that the service was required due to an injury sustained in the accident that prevented him from maintaining his property as he had done before the accident.  The claimant submitted invoices purportedly from the gardener; At trial, evidence from the gardener brought to light the fact that the claimant had fabricated the invoices and that he had received gardening services prior to the accident. The Court found that despite the view that the claimant had got himself in to a muddle, the invoices for the gardener were found to have been created dishonestly and represented approximately 42% of the total financial loss claim. Mr Justice Julian Knowles found that this amounted to fundamental dishonesty and overturned the first instance decision in which the claimant whilst not recovering for the cost of the gardener, recovered almost £27,000 in damages and a sum for costs. The claim for damages was dismissed entirely.

The second recent case was Mervin v Stolys [2018], in which the claimant suffered injuries in a road traffic accident in which he claimed damages in excess of £1 million for catastrophic injuries he alleged left him largely immobile, unable to work and needing significant care. The defendant pleaded fundamental dishonesty, having obtained surveillance footage and medical evidence that were at odds with the disabilities described by the claimant. Upon disclosure of this evidence the claim was withdrawn with no award for damages or costs made.

As a claimant solicitor, I do not in any way condone dishonest claims. The case of Mervin v Stolys was the right outcome.   Where evidence is produced that clearly shows fundamental dishonesty, the claimant should not be allowed to continue. However, there is a risk that Section 57 could be used by insurers as a negotiating tactic in claims which they consider are valued too high, but where there is no real suggestion of dishonesty.   There does appear increasing use of video surveillance evidence. Is this because insurers are trying to find evidence which may not go as far as so to support a finding of fundamental dishonesty, but will be used to sow a seed of doubt into the minds of the claimant’s advisors so as to cause them to advise acceptance of a sum which previously would not have been attractive.

Whilst Section 57 has its place and recent Court decisions should be a shot over the bows of any claimant considering pursuing a dishonest claim (whether the claim as a whole or a substantial part of it), Section 57 must not be used by insurers as another weapon in their armoury in attempts to reduce the value of claims. All lawyers representing claimants must of course be alive to the risks of dishonest claims and they should be prevented, but equally, simply because a insurer may not agree a head of claim or consider it is not necessarily in keeping with the nature of the injury, that is not an excuse to suggest the claimant is fundamentally dishonest. Time will tell whether insurers stop alleging that the claimant’s valuation is excessive and start suggesting that a claimant is being fundamentally dishonest.   Such blanket allegations cannot be made. Fundamental dishonesty has to be pleaded; the defendant has to have evidence in support. A claimant simply putting a value on a claim which is higher than the insurers consider it to be worth on the evidence should not lead to allegations of fundamental dishonesty by a claimant and any such suggestion must be fought.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Government scheme for birth injury cases

The Rapid Resolution and Redress Scheme for Severe Avoidable Birth Injury is a proposal by the government to provide consistent and independent investigations for all instances where there may be severe avoidable birth injury, along with access to ongoing support and compensation for eligible babies through an administrative scheme.

The assessment process is proposed in two stages. Firstly, the investigating team will consider whether the babies injuries are “severe”. However, the government will be reviewing this following criticism that the definition is too limited. Secondly, the hospital will then investigate whether the injury was avoidable.

Responses to the consultation were published in November 2017, and most of the respondents considered that the investigators should be independent from the trust involved, thereby allowing families to have confidence in the investigation and its findings.

Following the responses, the government highlighted the subsequent areas which required further consideration:

  • The final scope of the scheme
  • The composition of investigation panels
  • Where the scheme/different elements of the scheme should be located
  • How compensation should be structured, including the size and timing of payments

The government has said it wants the final proposals to have the best chance of achieving their main objective: to reduce future incidents of avoidable harm. It is thought that the final policy proposal will be presented in Spring 2018, although it is not clear when the scheme will be implemented.

Part of the aim of this scheme is to provide a “rapid resolution”. However, the government acknowledges that there will be circumstances where the investigation process may take a considerable time. The long-term needs and prognosis of a child with a brain injury may not be known for several years. Therefore, this questions how “rapid” the scheme can actually be. In addition, cases of this nature require thorough investigation by experts with knowledge of the complex medical issues involved. It is hoped that the rapid response will not compromise the quality of the investigation.

It is understandable that the NHS needs to save money and the proposed scheme intends to do this, as well as reduce the time an investigation takes. However, birth injuries can be devastating to both the child and their family. In most cases the injuries are life changing. In these circumstances, it is questionable whether a “rapid response” is the correct approach.

At Anthony Gold we understand that childbirth is an emotional experience. We understand the effect that birth injuries have on the individual and their families. We understand the complex legal and medical issues involved, and most importantly, we understand the importance of obtaining the compensation our clients deserve to help support them through this most difficult time.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Case Study – Accommodation Claim

One morning, EDW was making his way to work as he usually did, walking along Station Road to catch the bus to take him to his job as a cleaner with Westminster Council. EDW is a Spanish national who had moved to the United Kingdom over 20 years ago and had raised his family here. He was a keen football fan who had settled in to life in South London.

Tragically, EDW would never make it in to work that day. As he walked along a pavement, a vehicle collided with him as he was crossing the road, causing devastating injuries. His life, as well as that of his family, would never be the same again.

He was taken hospital where he was treated on the surgical critical care unit. Unsure if he was going to survive, his family had been told that he had suffered a very serious injury to his spinal cord and that he would almost certainly be paralysed. EDW did survive, although it was clear he would be disabled for the rest of his life. EDW had suffered spinal fractures at C4/5 and T12/L1. At the age of just 40-years-old EDW was tetraplegic – with no useful movement from his neck down. He also suffered damage to his optic nerves which led to him being completely blind in both eyes.

Shortly after EDW was admitted to hospital, the family had sought help in bringing legal action against the driver that had caused the accident. It was clear that EDW would be unable to work again and with substantive care and rehabilitation needs, and with police enquiries at an early stage, it was important that they had legal assistance sooner rather than later.

The claim for compensation eventually resulted in a multi-million pound out-of-court settlement with the responsible driver’s insurance company. That settlement included a 24-hour care package for the rest of EDW’s life, ongoing rehabilitation and therapeutic support as well as the means for the family to purchase a new house with all the necessary amenities for somebody who had suffered a severe spinal cord injury.

Most of the clients represented by Anthony Gold’s Injury and Medical Claims team have suffered life-changing injuries. This will often mean that as part of any settlement, the appropriateness and practicalities of their living arrangements post-injury will be examined thoroughly. A suitably adapted property is the foundation of a sustainable rehabilitation and care package in the most serious of catastrophic injury cases. Therefore it is vitally important that home living conditions are as good as they can possibly be when the injured person is ready for life back at home.

In the case of EDW, he lived in a flat which was never going to be suitable for him to return to once he left his residential care home. Using funds from the settlement of the injury claim, the family gave Anthony Gold’s Court of Protection team permission to purchase a new house that was to be adapted to meet EDW’s care and mobility needs. We agreed a house purchase and a further £500,000 of adaptations was budgeted for to transform the property into one that best suited both EDW and his family.

Due to the scale of the renovation project in what was going to be essentially a complete overhaul of every room in the house, we brought in a specialist architect firm.

The property itself was spread over five floors and it needed to accommodate not only five bedrooms, but also a large en-suite wet room leading from EDW’s bedroom, a therapy room, and a lift through the middle of the house to enable step-free access throughout the property.

An important aspect of the renovation work was to ensure there was plenty of light coming in to the property, particularly at the rear of the house where an open plan kitchen leading to a large living area and conservatory was to be situated.

As well ensuring the home was comfortable and a pleasant place for EDW to live, it was vital that it had all of the necessary amenities and state-of-the-art technology that will help not only EDW live as full a life as possible, but also ensure that his carers are able to look after him when carrying out their day-to-day tasks.

Accessibility was the most carefully thought out part of the construction project, with a lift shaft being build that runs from basement level to fourth floor of the house.

EDW is now living at home four days a week where he received professional care around the clock and will shortly return home for good. The purchase and subsequent renovations of the property have ensured that he is able to live at home with his family, in an environment in which he feels more comfortable.

Click here to view the Case Study Images.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Do actions (actual reported profit figures) speak louder than words (conjecture from profit-hungry insurance companies)?

I wrote a blog in May last year concerning the justifications for injury claim reform, in which I concluded that such reform was rationalised, as well argued for by lobbying insurance companies, on the basis of combating a crisis of a compensation culture, a “whip-cash” industry, a gross increase of fraudulent claims made by dishonest people and to prevent the increase in insurance premiums paid by honest and law abiding citizens. However, as I wrote in my previous blog, the statistics showed a different story, with a recorded drop in the number of claims but an increase in insurance premiums.

In a similar vein, there was uproar from the insurers last year when the new discount rate was announced, reduced from 2.5% (which was set in 2001) to -0.75%.  Disproportionate and outrageous, they declared, with billions of pounds at stake in this decision. Who would be the losers in such a ludicrous drop, they asked, well the law-abiding policy holders of course, where premiums would need to rise to counteract the inevitable and crushing impact on profit margins.

Well, and as the Gazette has reported over the past week, some of the figures are now in. Direct Line Group, who estimated that profits would fall in 2017 by between £215 million and £230 million, reported to the London Stock Exchange that it expects overall operating profits for 2017 to be £610.9 million, a leap of 51.4% on 2016. Similarly, Allianz announced their figures of an increase of 26% of operating profits to £121 million on last year. However, Allianz did note that profits should have been £22 million higher but for the discount rate.

It has been suggested that the increase in profits can be accounted for by the reserves accumulated from increasing premiums to mitigate against the true impact of the discount rate, which is yet to be felt. However, Direct Line Group reported increased dividends this year to its shareholders, surely indicative of excess profit.

In view of the figures, one questions how the insurers can simultaneously claim that further reform is needed –  to restrict access to justice for those with legitimate injury claims and that the discount rate needs to be readjusted – whilst at the same time reporting huge profit increases?

It will be interesting to see what the insurers say about insurance premiums this year and whether increases will be justified on the same arguably spurious basis.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Hassell v Hillingdon – informed consent post-Montgomery

Almost three years ago, in March 2015, I wrote about the landmark decision in Montgomery v Lanarkshire Board (Scotland) [2015].

Since then, I have also written about some of the many decisions which have followed in which the principles on informed consent which were first set down in Montgomery have been applied. The latest in this string of cases is Hassell v Hillingdon Hospitals NHS Foundation Trust [2018] in which judgment was handed down by the High Court earlier this month.

Although Montgomery should be well known to all clinical negligence lawyers, a short reminder of the facts of the case is probably useful at this point. Mrs Montgomery was an insulin dependent diabetic and became pregnant with her first child in 1999.  It was well known at that time that diabetes mellitus in the mother carried a risk of a larger than average baby.  The risk of shoulder dystocia occurring during labour was also higher.  Shoulder dystocia can pose a significant risk to both the baby and the mother.  Mrs Montgomery was classed as high risk and was closely monitored throughout her pregnancy.  Despite this, she was not told of the 9-10% risk of shoulder dystocia occurring in labour or given any other options in respect of the delivery of her baby.

Mrs Montgomery attempted a natural delivery but the baby’s shoulders duly became lodged in the birth canal.  Mrs Montgomery’s treating doctor attempted to complete delivery and the baby boy was eventually pulled out some 12 minutes later.  During the course of the delivery, he was starved of oxygen, suffered a brachial plexus injury and was later diagnosed with cerebral palsy.

At paragraph 87 of its judgment, the Supreme Court stated:

“An adult of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken.  The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.  The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.

The Supreme Court found that Mrs Montgomery should have been advised of the risk of shoulder dystocia and that if she had been, she would have instead opted to give birth by caesarean section.  Her appeal was therefore allowed.

The newly decided case of Hassell v Hillingdon [2018] revolved around treatment which Mrs Hassell received at the defendant’s hospital between June and October 2011. Mrs Hassell was suffering with ongoing neck and upper arm pain and underwent C5/6 decompression and disc replacement surgery on 3 October 2011 under the care of Mr Shaun Ridgeway, spinal orthopaedic surgeon. During the course of the procedure, Mrs Hassell very unfortunately suffered a spinal cord injury which rendered her paralysed and permanently disabled. The value of the claim was agreed at £4.4 million before the trial but breach of duty and causation remained in dispute. Mrs Hassell argued that she was not warned of the risk of paralysis nor was she offered conservative treatment such as physiotherapy prior to undergoing the procedure. It was her case that has she been warned of the risk, she would have considered it too high and would not have gone ahead with the surgery. She also argued that Mr Ridgeway failed to carry out the procedure with reasonable care and skill. The Trust stated that Mrs Hassell was properly warned of the risks and that the surgery was carried out with reasonable care and skill.

The decision is an interesting one because it largely turned on what Mr Ridgeway said, or rather didn’t say, in his witness statement and during the course of his evidence at trial. In addition to this, in correspondence he had written prior to the surgery, he had not properly set out the risks of paralysis.

Mr Justice Dingemans found that Mr Ridgeway had erroneously concluded that Mrs Hassell had already undergone physiotherapy for her neck pain and because of this mistake, did not properly discuss conservative treatment with her. Had he discussed conservative treatment options with her, Mrs Hassell would have been able to correct his incorrect assumption.

Further, Mr Justice Dingemans at paragraph 68 of his judgment stated the following:

“Secondly it was apparent that, whatever Mr Ridgeway’s strengths as a surgeon when carrying out the operation, Mr Ridgeway was not a good communicator about the risks of operations. I make this finding because when he gave evidence in chief about the risks of the operation, he did not include DVT or PE which he said in his witness statement he would have mentioned…….Even making proper allowances for the fact that Mr Ridgeway was in the witness box and not talking to a patient it was plain that his belief about what he would invariably have said was not reliable……I also note that Mr Ridgeway did not identify in any of the earlier correspondence after the operation that the letter dated 1 July 2011 contained an omission about the risks of paralysis even though he said he had mentioned these when talking to Mrs Hassell. …”

Mr Justice Dingemans was of the view that Mrs Hassell had given clear evidence that she had not been warned of the risk of paralysis. At the time of the surgery, she was a mother to three young children and was working full time as head of year in a school and would have been very concerned about such a risk given her personal and professional situation. In addition, she had a good recollection of Mr Ridgeway discussing the risk of a hoarse voice following the surgery which was relevant to her as a teacher who might need to shout across the playground on occasion. The judge found that had the risk of paralysis been discussed with her, Mrs Hassell would have been concerned about it, would have recollected it and would have asked further questions.

Mrs Hassell had signed a consent form on 3 October 2011 which discussed the risk of paralysis but she was rushed in doing so and the judge found that this did not constitute informed consent.

Ultimately, Mr Justice Dingemans concluded that Mrs Hassell had not had the risks of paralysis explained to her and that had this been discussed with her, she would not have gone ahead with the surgery:

“…I accept Mrs Hassell’s evidence and find that if Mrs Hassell had been given the relevant information about the risks of paralysis and conservative treatment options, Mrs Hassell would not have had the operation on 3 October 2011. This is because Mrs Hassell said that if she had been told that having conservative treatment was an option, and that surgery carried a risk of 1 in 500 to 1 in 1,000 of permanent paralysis, she would have opted for conservative treatment….” [paragraph 77]

The judge was not able to decide what, on the balance of probabilities, had caused the spinal cord injury during the surgery. It could therefore not be established that Mr Ridgeway did not perform the surgery with reasonable care and skill. However, as the judge had already concluded that the risk of paralysis was not discussed with Mrs Hassell and that she would not have undergone the surgery if it had been, it was not necessary to show that the surgery was performed negligently.

Judgment was therefore awarded to Mrs Hassell in the previously agreed sum of £4.4 million.

This case again shows the importance of clinicians properly discussing the risks of surgery with their patients together with less invasive options for treatment (where such options exist) and of recording that they have done so. It is not enough simply to say that it would be their usual practice to discuss those risks, they must be able to show that they actually did so or informed consent is unlikely to be established.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Are police officers immune from claims if they cause injury in the course of their duties?

This was one of the questions which the Supreme Court was asked to determine in the recent case of Robinson v Chief Constable of West Yorkshire. The claimant, an elderly lady had been knocked down during a struggle between two police officers and a suspect. They all ended up on top of her, causing her injury. They claimed not to have noticed the claimant.

The case went to trial and the judge decided that the officers negligent as it was reasonably foreseeable that the suspect, a drugs dealer, would try to escape arrest and pedestrians in the vicinity (a busy town centre) would be at risk of injury. However, he held that they were immune from such claims as previously decided by the Court of Appeal in case called Hill v Chief Constable of West Yorkshire [1989] AC 53. The claimant appealed.

The Court of Appeal dismissed the appeal and held decided that the police did not owe the claimant a “duty of care”. Applying a three stage test from a case called Caparo Industries Plc v Dickman [1990] 2 A.C 605, the appeal court decided that the claim failed the third stage of the test, which is whether it would be “fair, just and reasonable” to impose such a duty. The court would only impose a duty in cases where it felt right to do so on the facts. It would not serve the public interests if police officers faced such obligations when trying to carry out their duties to protect the public. In any event, the court considered that it was the suspect whot was being detained who caused the injury and not the officers. The claimant appealed to the Supreme Court.

The Supreme Court rejected the view that the determination of duty of care always depended on the application of Caparo. It held that in this case the existence of a duty of care depended on the application of established principles of negligence. There was no general rule that the police were under no duty of care when performing operational duties. The Hill case had been misunderstood. The general law of tort applied to police officers like anyone else and so they were under a duty to avoid causing reasonably foreseeable injury or damage. Although the police cannot be held liable for failure to prevent harm caused by third parties, the officers were found to have acted carelessly and this resulted in foreseeable harm to the claimant to whom they owed a duty.

Whilst the Court of Appeal was found to have erred in dismissing the appeal, it had been correct to emphasise the importance of not imposing unrealistically demanding standards of care on police officers carrying out their operational duties.

This is a very interesting judgment, which sets out a balanced view on the obligations of the police to carry out their duties on the one hand and protecting the general public on the other but without imposing an unrealistic burden. It is certainly worthy of a read, especially in the current climate where such cases appear to be of common occurrence.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Successful claim for motorcyclist

It is well known that pedestrians, cyclists and motorcyclists are the most vulnerable road users. Whilst motorcyclists are just 1% of total road traffic, injuries to motorcyclists are out of proportion to their presence on our roads. Figures released by the Department for Transport show that in recent years that has been a fall in motorcyclists’ deaths despite an overall increase in motorcycle traffic. Despite this, there are still however a significant number of motorcycle accidents every year.

I recently acted for motorcyclist, Mr L who was involved in a road traffic accident and suffered a serious injury.

The accident occurred whilst Mr L was travelling along a main road in the left lane approaching a junction with a minor road. A driver of a car who was travelling in the opposite direction suddenly and without warning turned right into the minor road, cutting across my client’s path. As a result a collision occurred and my client was thrown off his motorcycle to the ground, landing on his left knee. The ambulance and police attended at the scene and the client was taken to hospital.

My client was diagnosed with significant ligamentous injury with avulsion fracture of the upper end of the tibia and bruising of the articular surface of the upper end of the tibia.

Several months after his accident, Mr L instructed me to pursue an injury claim on his behalf. I obtained the police report and submitted his claim to the car driver’s insurers. I obtained a supportive witness statement which confirmed my client’s version of events and was of great assistance in pressuring the car driver’s insurers to accept liability for the claim.

Once liability was accepted, I instructed a specialist consultant orthopaedic surgeon to prepare medical evidence on my client’s injuries. The medical evidence was supportive and crucial in proving the injuries suffered and the potential restrictions and limitations he would face for the future.

Mr L was a self-employed electrician and initially took only a couple of weeks off work after his accident. However, some considerable time later, he noticed a relapse of his left knee symptoms. At this stage he underwent further investigations and a further medical examination to obtain a final prognosis on his injury.

I then prepared a final schedule of his financial losses and expenses to include past and future losses including loss of earnings and limited care and assistance. Following a short period of settlement negotiation with the driver’s solicitors, my client happily agreed to accept an offer of £90,000 in full and final settlement of his claim.

As vulnerable road users, motorcyclists are likely to suffer from significant injuries which can have long lasting effects. Even when symptoms do not appear serious at the outset, they can later transpire to be more serious injuries. My client could never have imagined the extent of his injuries immediately after his accident; so it is advisable to motorcyclists seeking to claim after an accident to seek specialist advice. A specialist solicitor will always ensure that the appropriate rehabilitation and the maximum level of compensation is sought for their injured clients.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Four Seasons v Brownlie – Jurisdiction

The Supreme Court handed down its Judgment on the case Four Season Holding Incorporated v Brownlie on 19 December 2017. This long running case concerns a tragic road traffic accident on 3 January 2010 in Egypt. Lady Brownlie booked a holiday (from England) to stay at the Four Seasons Hotel in Egypt. Before travelling to Egypt, she also called a concierge at the hotel and booked a safari tour in a hired chauffeur-driven car. On the tour, the chauffeur lost control of the vehicle and crashed. Lady Brownlie and her two children were seriously injured, and sadly her husband, Sir Ian Brownlie, was killed.

Lady Brownlie brought proceedings for three claims. Firstly, a claim for the personal injuries she suffered, secondly a claim as her husband’s executrix under the Law Reform Act 1934, and thirdly a dependency claim under the Fatal Accidents Act 1976. The Four Seasons is a Canadian-based company. Lady Brownlie applied for permission to serve her claim out of the jurisdiction which was initially granted by Master Yoxall but that order was subsequently set aside by Master Cook.

The case eventually reached the Court of Appeal in 2015 which struck out Lady Brownlie’s own claim for damages and her claim as executrix of her husband’s estate. This was on the basis that the damage was suffered in Egypt and the claims should have been brought there. The Court of Appeal distinguished Lady Brownlie’s dependency claim under the Fatal Accidents Act as they considered this damage had been be suffered in England and thus the English courts had jurisdiction. The dependency claim was allowed to proceed. The Four Seasons appealed that decision and Lady Brownlie cross-appealed the decision to strike out her other claims.

The Supreme Court heard the case in May and July 2017, and handed down Judgment on 19 December 2017. The Court considered the issue of permission to serve a claim outside the jurisdiction. The claimant had to show that the case falls within one of the jurisdictional gateways detailed in paragraph 3.1 of Practice Direction 6B of the Civil Procedure Rules. Lady Brownlie contended that she satisfied the gateway outlined in paragraph 3.1(6)(a) as the contract was made in England and therefore within jurisdiction. In addition, she contended that her own claim for damages and that on behalf of her husband’s estate satisfied the gateway at 3.1(9)(a) on the basis that her damage was sustained within the jurisdiction.

The claimant’s appeal eventually failed on the facts rather than on any point of law. Unusually, the Supreme Court allowed further evidence from the Four Seasons which confirmed that they did not actually own the hotel in Egypt. It was owned another company unrelated to them. Therefore, Lady Brownlie’s claims could not proceed as the Four Seasons was not the correct defendant and the English courts had no jurisdiction.

This finding meant that the Supreme Court did not have to consider in detail where the contract for the sale of the safari tour was made and more disappointingly did not offer definitive guidance on interpretation of the paragraph 3.1(9)(a) gateway. However, I assume understanding the importance of the point, the Supreme Court did go on to consider the issue although obviously any findings were strictly obiter, and should be treated with the appropriate caution.

The majority view from Lady Hale, Lord Wilson and Lord Clarke, was that the claimant would have been able to satisfy the paragraph 3.1(9)(a) gateway. Lady Hale found that there was a line of first instance decisions which in her view had correctly decided that consequential damage i.e. the ongoing suffering and effect of injuries back in the country of domicile, was sufficient to establish jurisdiction. She also went on to consider the definition of the term “damage” in the Civil Procedure Rules. She did not consider the authors of the gateway were intending to limit the term to just the initial damage suffered because of the negligent act and that damage could be suffered by the same person in more than one place.

Lady Hale did appreciate the risk of forum shopping but stated a robust interpretation of “forum conveniens” would avoid this.

Lord Sumption and Lord Hughes offered dissenting obiter views. Lord Sumption felt that the term “damage” was limited to the initial bodily injury and the authors of the gateway would have expressly stated if it were to include consequential loss. He considered that the interpretation offered by Lady Hale would confer jurisdiction in the great majority of cases in the country of the claimant’s residence and the this would contradict the purpose of the gateways.

It is unfortunate that the Lady Brownlie’s case failed on the facts and the Supreme Court was not able to offer a definitive Judgment. This issue will be tested again given the obiter comments. There is likely to be a case where a claimant has suffered an injury with ongoing consequences in a country where there is no appropriate redress for damages seeks to bring the claim in the country of their own domicile. This will issue will eventually need to be determined definitively.

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