Modern technology and advances in medical sciences have helped develop a new generation of prostheses, for both upper and lower limb amputees. The purpose can be cosmetic or functional (or both). Often the question arises as to whether the court will allow the cost of prosthetics, and if so to what extent.

In the case of Miller v Imperial College Healthcare NHS Trust the claimant underwent a below knee and then above knee amputation following negligent treatment at the hospital. She claimed the cost of an expensive sophisticated prosthetic leg and a cheaper (reserve) leg.

The claimant, age 63 at the time, argued for her more sophisticated limb on the basis that compared to the cheaper NHS version (argued for by the hospital) it felt lighter, enabled her to move better, increased her stability and limited the risk of falls and water blisters. She provided the court with DVD evidence showing the judge a range of activities performed with the limb she contended for, compared to the one contended for by the hospital.

The judge said “in every respect in which a test was performed [the more expensive limb] was significantly more effective in restoring the mobility and confidence which the claimant would have had before the injury. Neither limb, of course, is in any way a substitute for the lost leg.”

In making his decision, the judge was guided by the approach taken in A v Powys Local Health Board which confirmed that the basis of assessment is the test of reasonableness. A claimant, it was said, is entitled to damages to meet her reasonable requirements and reasonable needs arising from her injuries, following an objective assessment. Accordingly, if the treatment claimed by the claimant is reasonable, it is no answer for the defendant to point to cheaper treatment which is also reasonable. In determining what is required to meet the claimant’s reasonable needs, it is necessary to make findings as to the nature and extent of those needs and then to consider whether what is proposed by the claimant is reasonable having regard to those needs.

In favouring the claim for the more sophisticated limb, the judge in Miller held that the claimant was entitled to prostheses which put her more closely in the same position as she would have been had she not suffered the amputation.

There is good argument therefore that claimants who are claiming the cost of better and more expensive artificial limbs should recover the same. Evidence to support the need gives the claimant a greater chance of a decision in their favour. Provided the claim is reasonable, the court’s objective assessment is likely to fall in their favour and rightly so given the serious nature of the injury sustained.

* 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.*

The Court of Protection recently considered the important issue of refusing serious medical treatment on behalf of a mentally incapacitated adult R (serious medical treatment) [2016] EWCOP 60.

The leading authority in this highly complex area of the law suggests that there remains a strong legal presumption that it is generally in a person’s best interests to receive life-sustaining treatment Aintree University Hospitals NHS Foundation Trust v James.

 

In the Matter of R (serious medical treatment) Mr Justice Baker took a contrary view to the legal presumption declaring that it was lawful and in R’s best interest not to receive medical treatment but instead to be provided with palliative care only.

R was in his early 40’s when the declaration was made.  He suffered from mental health issues throughout his life that saw him detained under the Mental Health Act and living in a secure ward for the last 6 years prior to this case being heard.

R’s illness meant that he presented as extremely paranoid with “abnormal perceptions, including the belief that he was being interfered with by other people”.   This case was determined by reference to its very specific facts which are summarised below: –

• R had an asymptomatic brain tumour that was considered not to be curable.
• The aim of any treatment would be to prolong R’s life and maintain his quality of life.  R would not be cured.
• Life expectancy for this type of tumour ranged from 18 months to 10 years.
• Surgery carried high risk of complications and side effects such as paralysis and a decline in cognitive function.
• Chemotherapy and radiotherapy would require R to be compliant with the treatment for numerous treatment sessions both pre-and post-operatively.  It was widely agreed that R would be unlikely to comply with treatment and that the hospital would “lack the resources to manage” R’s behaviour.
• R’s family all agreed that R should not undergo treatment.

Mr Justice Baker considered paragraphs 5.31 to 5.33 of the Mental Capacity Act Code of Practice in detail alongside the treating hospital’s balance sheet of considerations both for and against proceeding with medical treatment of the tumour.  The balance sheet was strongly weighted in favour of declining medical treatment, as follows: –

• The tumour could not be cured;
• The treatment would be exceptionally difficult for R to endure alongside his mental health problems;
• R was unlikely to cooperate with the pre-and post-operative treatment such as radiotherapy, making it difficult to implement that course of treatment, with the likely need to apply force or physical restraint to ensure compliance with the treatment;
• The surgery itself carried risks and may have diminished R’s quality of life;
• R indicated that he did not want treatment (although he was inconsistent about his wishes and feelings in that regard).

The Court of Protection weighed up the significant adverse effects that were anticipated in subjecting R to treatment (in particular the chemotherapy and radiotherapy) against the fact that R would never be cured, albeit his life extended for a period.  It was ultimately decided that it was “lawful and in R’s best interests not to undergo surgery and/or radiotherapy and/or chemotherapy and that he provided with palliative care only”.

Whilst the starting point is often that life sustaining treatment should be given, that is not absolute. The Court of Protection will declare that it is not in a person’s best interest to receive treatment if the facts of the case suggest that that is the indicated solution.  The Court of Protection will consider “welfare in the widest sense…the nature of the medical treatment in question, what it involves…its prospects of success [and] what the outcome of that treatment for the patient is likely to be” when making decision in these most serious of cases.   

* 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.*

Headway East London News

I have written many times before about how we at Anthony Gold are enthusiastic supporters of Headway East London (“HEL”) and the fantastic work it does.

HEL is a charity supporting people affected by brain injury. Working across 13 London boroughs, HEL offers specialist support and services for survivors and their families.

We are particularly happy to be supporting HEL during its 20th anniversary year.

Submit to Love:  pop-up shop

We are only a few days away now from Headway East London’s first ever pop-up shop. The excitement at Headway House is building in anticipation of what looks to be an exciting week.

The shop will be opening its doors on Monday 8 May 2017 and each day thereafter until Friday 12 May between 11 am and 7 pm with a host of events planned each evening.

You can read more about the shop by clicking here with details of how to sign up for some of the events running during the week.

Anthony Gold Superheroes

On Sunday 14 May 2017, Anthony Gold’s very own superheroes will be running  (or flying) around Regent’s Park as they take place in the London Superheroes run to raise money for Headway East London and to raise awareness during Action for Brain Injury Week. All support whether financial or vocal would be much appreciated.

Headway East London/Anthony Gold Annual Quiz Night

Our annual quiz night takes place on Friday 19 May 2017 in Romford, Essex.

Tickets are £10 per person and include a meal (fish or chicken and chips), with all the proceeds going straight to Headway East London. If you’ve got a team ready to compete or would like to join an existing team, please email  Rosy Ross

* 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.*

The current regime of fixed costs for personal injury claims was introduced in July 2013 along with a whole raft of other civil justice reforms. Claims valued no more than £25,000 must be started on an online portal. Claims that remain within the portal attract very limited fixed costs and those claims which fall out of the portal, but continue to be valued at £25,000 or less, attract a separate regime of fixed costs. The small claims limit remained at £1,000, below which no costs can be recovered from the negligent party, which in and of itself is prohibitive for individuals wishing to bring a claim. Unfortunately, the fixed fees regime does not make allowances for complications and difficulties in a claim, often attributable to a difficult insurer as well as a plethora of other reasons. A fixed fee regime that does not allow for necessary further work required due to complicating factors in a difficult case means one of two things: – (1) the work is not done or (2) lawyers end up working for free. This cannot be in the interests of the injured party with a legitimate claim.

It is well known that the government are not finished with civil justice reforms and there are more on the way. Regarding injury claims and the way in which individuals can bring claims, broadly speaking, the government plans to increase the small claims limit for injury cases up to £2,000 and to introduce a tariff based system for whiplash injuries, though such reforms are now to be delayed until the new government is in place after the results of the snap election, see Ian Peters’ article on this.

So, what is the justification for reforms further restricting access to justice? Many reasons have been expounded by the government for the reforms and, certainly, an appetite to utilise technology to increase the efficiency of claims has been a big driving factor. However, it is also true that reforms to injury claims have been, and continue to be, aggressively lobbied for by insurance companies. The narrative, the pervasive and pejorative undertones of which are regularly regurgitated by the mass media, is that such changes are justified and necessary in order to combat the rise of a crisis of a compensation culture, a “whip-cash” industry and the gross increase of fraudulent claims made by dishonest people. Reform must happen, the narrative follows from the insurers, to prevent the increase in insurance premiums paid by honest and law abiding citizens.

So, is there a crisis of fraudulent claims and a ‘compensation culture’ that require curtailment?  From statistics released by the Office for National Statistics on 19 January, insurance fraud reduced by 13% for the year ending September 2016, which would indicate that there is no such crisis. In addition, insurance companies have been criticised in the media for raising premiums with little justification.  On average last year, motor insurance premiums increased by 12%; so, insurance premiums are rising irrespective of the number of claims and in circumstances where fraudulent claims are reducing. Suffice to say, the smokescreen that has been created by lobbying insurance companies is an effective one and one in which they are the winners in the existing and proposed reforms.

Let’s hope that this, presumably brief, hiatus on reforms as a result of the snap election will lead to some measured and responsible decision making by the government (whoever that government may be) with regards to injury claim reforms.

* 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.*

Theresa May’s decision to call a snap general election last week has disrupted the Government’s plans to “reform” the bringing of injury claims.

The government’s plan for  changes to injury claims is to increase the small claims limit for road traffic cases to £5,000, to institute a tariff based system for whiplash damages, and to increase the small claims limit for all other claims to £2,000. The planned reforms were part of the Prison and Courts Bill which is yet to go before the House of Lords. The snap general election means that all parliamentary business must be concluded by 3 May 2017 and there is simply not enough time to do it, and thus the bill has been shelved (for the moment).

So, the Bill and the reforms must wait until the country has its say on their next government.  The claimant sector has welcomed the delay hoping it gives a new government an opportunity to reconsider the proposed reforms and to file them away never to be pursued. There is no doubt the reforms will strip away a large part of the injury claims market raising major concerns for many firms.

Surprisingly the insurance industry has not reacted with significant opposition to the delay. This is most probably as they believe it gives them an opportunity to lobby the government on other areas of reform they would like the Bill to deal with, such as a change in the way the discount rate is calculated and Lord Jackson’s likely recommendation to extend fixed costs to higher value cases. They will see this an opportunity to deal with everything at the same time.

If the political pundits are correct and the Conservative government is re-elected it is likely that the delay will be short lived. It will be high on their agenda to push through the bill when parliamentary business resumes. The reforms are likely to proceed with gusto and may be more wide reaching than initially planned, to the significant disadvantage of injured people and their representatives.

In the meantime there will be significant uncertainty especially for catastrophic injury lawyers dealing with claims for significant future losses. The ongoing uncertainty about the discount rate is causing insurers to retreat from settlement negotiations in view of a potential change. What happens next is anyone’s guess.

* 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.*

It’s fair to say that most people were very surprised last week when the Prime Minister called a snap general election to be held on 8 June.  MPs then voted, by a margin of 509, in favour of the poll.  It would appear that Theresa May considers that a general election will bring stability at a time of considerable political and economic upheaval as she prepares to start negotiations for a hard Brexit.  Whether that in fact proves to be the case is another matter, but what will it mean for changes already on the table?

It was hoped that years of uncertainty for the victims of personal injury would be brought to a close on 27 February 2017 when the Lord Chancellor Elizabeth Truss finally announced the result of the discount rate review.  However, Ms Truss’ decision to cut the rate from 2.5% to – 0.75% (in force from 20 March) was met with horror and criticism by the insurance industry and NHS representatives.  The Lord Chancellor said at the time:

‘The law is absolutely clear – as Lord Chancellor, I must make sure the right rate is set to compensate claimants.  I am clear that this is the only legally acceptable rate I can set.’

The discount rate refers to the percentage by which lump sum compensation is adjusted to take account of the real net rate of return a claimant can expect to earn by investing it.  Claimants are supposed to be treated as risk averse investors and therefore the discount rate should reflect that.   However, with the discount rate unchanged at 2.5% since 2001, and interest rates at an all-time low, this was clearly unfair and leading to the undercompensating of those with serious and life-changing injuries.

The change was of course welcomed by claimants and their representatives but with the insurance industry up in arms about the likely increased costs for them, the Government pledged to do the following:

• Ensure that the NHS Litigation Authority has funding to meet increased NHS clinical negligence costs;
• See that the Department of Health work with GPs and their defence organisations to ensure that they also have sufficient funding to meet increased costs;
• Launch a consultation in the near future to consider whether there is another framework, an alternative to the discount rate, which could work better for all parties and to move forward with any necessary legislation.
• Chancellor Philip Hammond met with insurance industry representatives to discuss the impact of the rate change.

So what happens now in the wake of the shock call for a general election?  It seems inevitable that no decisions are going to be made on the discount rate until after 8 June. The Prisons and Courts Bill has already fallen by the wayside since the announcement.  We can only speculate on what might happen after the election.

All of this means more uncertainty for claimants.  Whilst the new rate will be applied in those claims which are due to go to trial imminently, other claimants will likely be left in limbo.  Insurers and the NHS Litigation Authority may well refuse to engage in settlement negotiations until after review of the consultation on the rate which could be many months away now.  All of this leaves claimants in an invidious position.

Uncertainty in the political sphere should not be used to derail the purpose of the new rate.  That is of course, to ensure that those with serious and life-changing injuries are properly compensated for their injuries and are able to utilise that compensation to, for example, pay for much needed care or treatment, without fear that it will run out whilst they are still alive.

* 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.*

As a clinical negligence lawyer I am familiar with the nightmare that medical records can present. Rarely do they arrive in one complete set, copied appropriately and legible.  Often it can take several attempts before a nearly complete set is  available and useable. Some NHS trusts are better than others but ultimately it is the responsibility of the trusts to maintain and allow access to proper records.

The importance of maintaining documents can often be overlooked in proceedings.  However a failure to maintain can  damage a case or a defence.

In the recent case of  RE v Calderdale & Huddersfield Foundation Trust EWHC 824  there were numerous irregularities in the evidence presented by the trust.  The witness evidence was conflicting  to such a degree it wasn’t  accepted by the court.  However, by far one of the more important issues of the case was the apparent alteration of records and destruction of the pertinent ones.

In accordance with usual practice and the court rules, cop medical records were provided. These were not complete and it became apparent that the originals had  then been destroyed after being “digitalised”.

There was a considerable confusion over what had happened to the records in this case. The trust destroyed the records after the claim began and the claimant then had to rely on the digitalised records which were unsatisfactory. The legal services manager provided a statement which did not accurately record events and appears not to have ensured that the records were returned safely to the department after the digitalisation process had been completed. There was however  no  finding of deliberate destruction  in the case.

The end result, however was that the accuracy of the records which did exist couldn’t be guaranteed. The copies of some were poor and  there were differences between the copies of original records that had been provided  and the digitalised versions.  Some records appear to have been over-written which is not necessarily sinister but when the original records were not available there was no mechanism to examine how and why this had occurred.

The claimant’s solicitor conscious of the problems had put the trust on notice that they had to prove the records as contrary to general assumptions they are not automatically  admissible  as  beyond doubt contemporaneous records. In addition the claimant argued that where the records were uncertain, ambiguous or just plain inconsistent, the court ought to resolve any dispute in the claimant’s failure.

The court determined that this was the correct way to deal with these issues.  Ultimately the claimant was successful in the claim and the  problems of the defendant’s evidence – both witness and documentary – clearly had a significant  impact on that decision.

* 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.*

An analysis of Darnley v Croydon Health Services NHS Trust [2017] EWCA Civ 151; Court of Appeal

Most of us will have been to A&E in our lifetime. Equally, most of us will have spent a considerable amount of time waiting in A&E, either to been seen or to be ushered through to the next stage of the filtration process.

According to statistics published by NHS England, in February 2017 there were a total of 1,739,169 attendances at A&E and, of those admissions, 54,492 people had to wait over 4 hours from the decision to admit to admission, whilst 339 people waited over 12 hours. With the media reporting that the NHS is in crisis, due in part to waiting times purportedly being the worst on record, is it any wonder that when faced with such a wait some people are simply walking away?

That is exactly what Michael Darnley did at Mayday University Hospital, now Croydon University Hospital, in May 2010. Mr Darnley attended the A&E Unit at 8.26pm on Monday 17 May 2010 having been the victim of a violent assault. He had received a violent blow to the head and his friend drove him to A&E. On arrival at A&E the receptionist, who was not medically trained, completed an admission card and advised Mr Darnley when he complained of severe pain and a fear of collapse that the wait time could be between 4 and 5 hours. Mr Darnley waited approximately 19 minutes before deciding to return home and take paracetamol for the pain. Neither he nor his friend advised the receptionist of their decision to leave. He was called in to triage by the nurse shortly after but had, by this point, left the hospital.

Later that night Mr Darnley’s condition deteriorated. At 9:42pm his family called an ambulance and he was taken back to Mayday Hospital where a CT scan of his head revealed an extradural haematoma (a build-up of blood between the skull and the outer surface of the brain, usually caused by trauma). Tragically, it was then too late to prevent permanent injury and Mr Darnley suffered left hemiplegia and long term disabilities.

The claimant’s case

The claimant’s case was that:

1. The hospital had delayed too long in assessing him;
2. The hospital staff had given him incorrect information about waiting times;
3. If Mr Darnley had been told he would have been seen in 30 minutes he would have waited and not left;
4. If he had been seen, Mr Darnley’s treatment would have been prioritised, he would have received treatment and, he would have avoided all injury.

The defendant’s case

The defendant denied breach of duty but admitted that had the claimant been present when called for triage his treatment would have been prioritised and the claimant would have made a full recovery.

In summary the main point of dispute between the parties was the nature and extent of any duty of care owed by a non-medically trained receptionist to individuals attending A&E.

First instance decision

HHJ Robinson, sitting as a judge of the High Court, gave judgment at the end of July 2016[2]. In summary, he found as follows:

1. The claimant’s presentation on arrival was not such that a non-medically trained staff member would or should have realised he needed priority triage;
2. On the facts, given the pressures on A&E that evening the failure to triage the claimant within 15minutes in accordance with NICE guidelines was not a breach of duty;
3. Had the claimant stayed, there would have been a duty to triage him within 30minutes;
4. Reception staff were not under a duty to provide waiting times and therefore they were not in breach of duty by:
   – Failing to provide accurate waiting information;
   – Providing inaccurate waiting information;
5. It would not be “fair, just and reasonable” to impose such a duty of care upon the reception staff;
6. Alternatively, even if the receptionist was in breach of duty, the inaccurate information did not cause the claimant’s injuries. The claimant took the decision to leave and must accept responsibility for the consequences

The appeal

The claimant appealed on 4 grounds:

1. The defendant’s failure to triage the claimant within 15 minutes was a breach of duty, even if he was not assessed as a priority;
2. Contrary to the judge’s finding of fact, the claimant’s presentation was such as to merit priority triage;
3. The judge erred in the assessing the scope of duty owed by reception staff;
4. The judge erred in the assessing the scope of duty owed by reception staff;The judge erred in his application of the “fair, just and reasonable” test.

The Court of Appeal dismissed the first two grounds as findings of fact which the first instance judge had been open to make on the basis of the evidence before him. Consequently, the first two grounds were dismissed and the appeal primarily centred around grounds 3 and 4.

It was here, that the appeal court judges differed in their opinion with the appeal being dismissed 2:1 (Lord Justice McCombe dissenting).

The main point of disagreement centred around the correct interpretation of Kent v Griffiths [2001] QB 36  and whether the role of untrained A&E reception staff is analogous to that of an ambulance service telephonist. Lord Justice Jackson and Lord Justice Sales were of the opinion that there was an important distinction between the two; namely that, the non-medically trained A&E receptionist is there to serve a clerical function only; whereas, the ambulance telephonist passes live information to paramedics and patients in order for them to decide whether to wait for an ambulance or make their own way to A&E. As a consequence, the ambulance telephonist is under a reasonable duty of care to pass on correct information. In contrast, the A&E receptionist is not, as there is no requirement for them to give any wider advice or information to patients.

For Lord Justice McCombe the above was an artificial distinction and one which, upon the particular facts of this case, was incorrect. In his judgment A&E reception staff perform a similar function in that patients need to understand that in truly urgent cases hospitals can act quickly and initial assessments will occur much sooner than the well-known average A&E waiting times. In this particular case the A&E receptionist incorrectly advised Mr Darnley that the wait was 4 to 5 hours, when in fact he would be seen by a triage nurse well before that, usually in 30 minutes. Lord Justice McCombe considered that a hospital’s duty of care should be considered in the round and could not be hived off by classifying a person’s role as simply “clerical”, as, had a medically trained professional provided the same information to Mr Darnley, this would have been a breach of duty.

In relation to the fourth ground Lord Justice Jackson and Lord Justice Sales were both of the opinion that such an extension to the scope of a hospital’s duty of care would add an additional layer of responsibility to clerical staff who operate in an already pressurised A&E system. Furthermore, it could have the otherwise unwanted effect of hospitals instructing staff to provide no information to patients at all and simply to act as a conduit for patient information which would be unhelpful. Again, Lord Justice McCombe was not sympathetic to such an argument, stating that his conclusions were “fact specific”.

Comment

This is an incredibly harsh outcome for the claimant and one wonders whether the outcome would have been different had he said to the receptionist “I’m not going to wait that long” or some other words to that effect. Furthermore, I wonder whether a different set of judges would have reached the same decision, or, whether they would have followed the reasoning of Lord Justice McCombe.

What is particularly difficult for the claimant is that they had arguably proved the more difficult parts of their case: namely that earlier intervention would have made a difference. As many practitioners know, when an individual suffers a brain injury whilst the body can compensate there is only a diminishing window of opportunity before irreversible damage occurs. Mr Darnley’s initial presentation occurred within that window and he could have been treated. Furthermore, it was also accepted that it was reasonably foreseeable that people who are given a lengthy waiting time may leave and that this may cause very serious consequences. I fail to understand why, if a consequence is well known, hospital staff are not under a duty to at least attempt to mitigate against that consequence by warning patients of the potential consequences of self-discharge, or, advising them that the wait for triage assessment is much shorter.

On the back of the comments made by Lord Justice McCombe and on the particular facts of this case it is very difficult to see why a receptionist who is an employee of the defendant Trust ought not to have a duty imposed upon them to provide accurate information. Whilst there may be practical difficulties with this, with the national press publishing statistics about long waiting times at A&E, people who are in real need may be deterred from waiting when the actual processes of A&E mean they would be seen quickly. As Lord Justice McCombe noted, it would not be beyond the capabilities of hospitals to provide leaflets or information in A&E about the various stages you go through upon attendance at A&E and whilst you may wait 4-5hourthis is usually for admission and not to see a triage nurse and be assessed.

Accidents at work are all too common. As a firm dealing with catastrophic injury cases we will have several cases involving workplace accidents at any one time.

The Health and Safety Executive (HSE) is an independent regulator for work-related health, safety and illness.  Most businesses will be aware that if a person has died or been injured because of a work related accident then it is likely to have to be reported. A Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) report is required when:

• the accident is work-related; and
• it results in an injury of a type which is reportable (including any injury requiring a hospital stay of 24 hours or more and any injury which renders an individual unable to perform their duties for 7 day).

As a regulator, its goal is to prevent workplace death, injury or ill health. They use a variety of ways to help people manage risks at work, including:

• providingadvice, information and guidance
• raising awareness in workplaces byinfluencing and engaging
• operatingpermissioning and licensing activities in major hazard industries
• carrying out targeted inspections andinvestigations
• taking enforcement action to prevent harm and hold those who break the law to account

Recently, a contractor has been fined £600,000 after a worker was seriously injured in an accident at work while trying to replace a traffic light pole during which he came into contact with a live underground cable that immediately gave him an electric shock and set him on fire, sustaining serious burns to most of his body. The investigation by the HSE found that although a risk assessment was performed, this was not communicated to the subcontractor’s employees and despite the appointment of a cable avoidance expert  his notes had not been passed to the supply chain workers. The Court found that the contractor had successfully identified the location of the cable, but had failed to act on these findings. The highways contractor pleaded guilty to breaching Regulation 25(4) of the Construction (Design and Management) Regulations 2015.

* 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.*

Section 145(3) of the Road Traffic Act 1988 imposes a legal obligation on motor insurers to cover their insured for any liability incurred for death, bodily injury to any person or damage to property arising out of the use of the insured vehicle on the road. So what happens if death or bodily injury occurs without any actual contact with the vehicle insured?

In the recent, unreported case of Christopher Wastell v The Estate of Gordon John Woodward, Deceased (1) and Chaucer Syndicates Ltd (summarised on Lawtel on 16 March 2017), the High Court was asked to determine as preliminary issue whether the second defendant motor insurers were liable to compensate the claimant for the serious injuries he sustained when his motorcycle collided with the first defendant.

The facts of this case are rather unusual but nonetheless led the court to explore interesting arguments about what constitutes “the use of a vehicle on the road” in order for motor insurers to become statutorily liable  to meet claims under section145(3) of the Road Traffic Act 1988.

The first defendant had, unknown to the second defendant, been operating a business selling hamburgers from a hamburger van. On the day in question, he had parked his van on a lay-by and was in the process of crossing back after placing a sign for his business on the other side when he collided with the claimant motorcyclist. Sadly the impact was such that the first defendant died instantly and the claimant sustained severe injuries for which he sought compensation from the second defendant.

It transpired that the first defendant had no public liability insurance or a financially viable estate. However, his partner had a motor insurance policy for the van with the second defendant under which the first defendant was a named driver. Whilst the second defendant had no knowledge of the first defendant’s business and the actual policy had not covered the van for business, it would become responsible if the claimant could prove the accident had arisen from “the use of the van on the road.”

Finding for the claimant and following the case of Dunthorne v Bentley [1996] R T R 426, the court accepted that this was a finely balanced case and whilst the van in question was not involved in the collision, the first defendant’s conduct of putting out the sign, adjusting it and returning back to the van had been so closely connected to the business that the accident had “arisen” from that use of the van on the road so as to make the second defendant liable. It mattered not that there had been a breach of the contract of insurance between the second defendant and its policy holder.

As this case demonstrates the scope of motor insurers liability under section145(3) of the Road Traffic Act 1988 can be wider than it appears.

* 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.*