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Anthony Johnson & Tim Kevan (editors)

Summary of Recent Cases - Substantive Law

Clay v TUI Ltd [2018] EWCA Civ 1177
The Claimant appealed against an order dismissing his claim for personal injury against TUI Ltd. The Claimant and his family were staying on the second floor of a hotel in Tenerife. They occupied two adjoining rooms. The Claimant and his family became trapped on the opposite balcony when the balcony door became stuck behind them. The family attempted unsuccessfully to attract attention for thirty minutes, after which the Claimant decided to step across from one balcony to the other. In doing so he placed his weight on an ornamental ledge which gave way. The Claimant fell to the ground and sustained skull fractures. The Judge at first instance found that the door lock was defective, which was a breach of local standards. However, he concluded that the Claimant's act of stepping across to the adjoining balcony was so unexpected or foolhardy so as to break the chain of causation.

By a majority, the Court of Appeal upheld the Judge's findings at first instance. They found that the Judge had correctly directed himself as to the test for causation and remoteness. The requirement was for the Judge to determine whether the novus actus was the sole cause of the injury, rather than the tortious act. Whilst the defective door might be the factual cause, it had been eclipsed so was not an effective or contributory legal cause. The Judge had appropriately balanced the risk posed by the activity with the risk posed by remaining on the balcony (noting that the neither the Claimant nor his family were in danger). The Judge was entitled to regard the new act as unreasonable and that the conduct was not reasonably foreseeable. The Claimant chose to expose himself to a risk of serious personal injury or death.

Moylan LJ dissenting: The defect in the lock was a causative factor, and the response to being trapped outside was not so unreasonable so as to make it an intervening event.

CC (Widow and Dependent of JC (deceased), on behalf of herself and his dependents) v TD [2018] EWHC 1240 (QB)
CC was the wife of JC, who was killed in a road traffic accident in June 2014 and brought a claim under the Fatal Accidents Act on behalf or herself and her three dependent children. At the time of JC's death, he and CC were involved in divorce proceedings. They began marriage counselling in 2012, and CC obtained legal advice in 2013 on divorce. She moved out in 2014 with the two youngest children (the elder had already moved out). CC filed for divorce in February 2014. CC contended that she would have reconciled with JC and stayed the divorce proceedings, particularly once she had understood the financial implications of divorce. The Court had to determine whether the Claimant would have reconciled with her husband (and therefore would have been entitled to a larger dependency award under the FAA along with her children). The Court further had to determine whether failing to use a pedestrian crossing constituted contributory negligence.

In respect of contributory negligence, the failure to use a crossing could not in itself constitute negligence. The accident occurred in the early hours of the morning when traffic would have been light. The Deceased ought not to have been expected to anticipate a car travelling at over twice the speed limit and could not have been criticized for thinking he had time to cross when the car was over 200m away. The accident was wholly the fault of the Defendant.

In respect of the appropriate award taking into account the divorce proceedings, the marriage counselling in 2012 showed that the marriage was difficult for an extended period before the accident. It was clear when she took legal advice in 2013 that CC was intent on divorce. Neither party attempted reconciliation during the months that they were estranged. CC had discussed with her lawyer how the couple's assets might be distributed, so she was aware on some level of the financial implications of divorce. Even in the face of more comprehensive legal advice, the Court did not find that she would have changed her mind about divorce. Reconciliation was no more than a speculative possibility. Thus CC's claim was limited to what she might have received by way of maintenance payments and was assessed at £10,500 to 2020 (when the youngest child turned 18). £5,000 per child was also awarded.



Molodi v Cambridge Vibration and Aviva Insurance [2018] EWHC 1288 (QB)
See also Richards & McGrann v Morris [2018] EWHC 1289 (QB)

The Defendant to a PI claim appealed judgment in favour of the Claimant. The Claimant sought damages for whiplash sustained in a low-velocity impact in February 2015 when his car collided with a van driven by the Defendant. The Claimant attended his GP the day after (albeit he did not seek any further treatment) and indicated in his Claim Notification Form ("CNF") that he had not taken any time off work. To the medical expert he represented that he had had to take time off work and had been involved in one previous accident. In fact, he had been involved in at least five accidents in rather than one. It was also proved at trial that it cost only £400 to repair the vehicle, rather than the £1,300 the Claimant was claiming in respect of damage. The Defendant argued the Judge ought to have found that the claim was fundamentally dishonest. HHJ Main QC dismissed this submission and gave judgment for the Claimant.

The High Court held that it was unfortunate that the Defendant had not followed the procedure set out in Casey v Cartwright in respect of LVI claims. County court judges had to approach cases such as these with an element of caution, if not suspicion. A genuine Claimant would normally seek treatment for injury, would visit the GP or A&E, would have independently sought physio without being prompted by a solicitor, and would have given a relatively consistent account of their injuries. Where a Claimant was provably untruthful, or so inconsistent that the evidence could not be relied upon, the court should be reluctant to accept the claim as genuine. Medical evidence was crucial to whiplash claims of this nature and a genuine and accurate history was important so as to found a reliable conclusion to be drawn in respect of causation and attribution. In this case, the Judge had taken too kind an approach to the Claimant's evidence, which was demonstrably inconsistent, unreliable and untruthful. Given his proven dishonesty in relation to previous accidents, it was difficult to see how the Judge could have accepted the evidence. The Defendant had proved, on the balance of probabilities that the Claimant had been fundamentally dishonest. The Judge should have dismissed the claim pursuant to s57(2) Criminal Justice and Courts Act 2015 or because the Claimant had failed to prove his case. The High Court allowed the appeal, overturned the conclusion of the court below and substituted a finding of fundamental dishonesty.

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Summary of Recent Cases - Costs

Atlasjet Havacilik Anonim Sirketi v Ozlem Kupeli and others [2018] EWCA Civ 1264
It is trite that, as a general rule, an unsuccessful party in litigation pays the costs of the successful party. In this action, the appellant ('Atlasjet') was a defendant to proceedings concerning a failure to provide flights to a group of 838 customers. Atlasjet was only required to pay compensation to 14 of those customers, although a further 32 claims were to be considered on the individual facts and merits of each case. When turning to the question of costs, the first instance judge held that the passengers had been successful, and therefore that Atlasjet should pay 33% of the passengers' costs. Atlasjet appealed, arguing that it had been successful in light of how few passengers would receive compensation. The Court of Appeal held that financial payments were too simplistic a measure of success in group litigation, particularly given the extensive practice of parties seeking rulings on preliminary issues, or electing a lead claim. The Court of Appeal held that courts must instead look at the litigation as a whole. In this case, the Court noted that neither party could be said to have been successful as compared to the other, and it therefore held that a more appropriate course of action was not to make a costs order.



Travelers Insurance Company v XYZ [2018] EWCA Civ 1099
The Court of Appeal upheld a non-party costs order against an insurance company in circumstances where it had not provided insurance in relation to those claims. A group of claimants brought proceedings against a medical company who had supplied allegedly defective breast implants. The appellant insurance company ('Travelers') settled 197 out of 426 claims on the basis that it its insurance policy covered those claims, but the remainder were deemed not to be covered. The claimants in the latter category obtained default judgment against the defendant, but did not recover their damages or costs as the defendant went into administration. They therefore sought their costs from Travelers, and were granted a non-party costs order at first instance. Travelers appealed this, arguing that it had not controlled the litigation in its own interest, and had not become, in effect, a real party to the litigation. The Court of Appeal rejected this as the test for making a non-party costs order, holding instead that all that was required was an 'exceptional' case, which was to be judged in the context of all of the litigation the courts see. In upholding the order, the Court noted that Travelers: were involved in decision making in the litigation; had funded aspects of the litigation; and were represented by the same solicitors as the defendant.

Summary of Recent Cases - Civil Procedure & Evidence

Circle Anglia Limited v Mitchell (QBD, Cheema-Grubb J, 6 June 2018)
The Claimant applied to commit the Defendant for contempt of court. The Defendant had brought a personal injury claim against the Claimant arising out of disrepair of premises of which the Claimant was the landlord. The Claimant alleged that the Defendant had made untruthful statements in Part 18 questions, schedule of loss and witness statement in order to increase his entitlement to damages. The Defendant made 22 statements alleged to be false in which he claimed that he had been made an offer of employment shortly before the accident which he was unable to take up due to the accident and therefore had lost earnings. The Defendant had made no such claim at the beginning of proceedings, and the medical evidence showed he was unfit for work prior to the accident. The Defendant did not attend any part of the contempt proceedings.

The Defendant had played no part in the proceedings, even to deny his dishonesty. It was notable that the start of the proceedings contained no information in respect of the job offer. This undermined his contention that the accident rendered him unable to work. The medical evidence showed the Claimant had preexisting conditions that rendered him unfit to work notwithstanding the accident and had not worked for ten years prior to the accident. The Defendant had made a deliberate attempt to mislead the court for financial gain. All bar one of the allegations were proved and a warrant was issued for the Defendant's arrest.

Industry News

RAC says not-at-fault motorists are paying the price for collisions....
Government renews bid to make directors personally liable for nuisance calls...
'Victory for product innovation' as High Court rejects group hip implant claim...
Gardener first to be charged with 'using mobile phone while on lawn-mower'...
Self-driving Uber car which killed a pedestrian detected the woman but decided to ignore her...
MCM says holiday sickness claims activity 'much reduced'...
Opposition raise serious doubts about Civil Liability Bill...
Justice minister uncompromising on whiplash reforms and says more fixed costs are on the way...
Travel sickness claims to be subject to fixed costs...
MP says cyclists and motorcyclists should be exempt from whiplash reforms...

Striking Whilst the QOCS is Hot - Andrew Roy, 12 King's Bench Walk In XY v (1) Ingenious Media Holdings Limited (2) Ingenious Media Limited [2018] EWHC 350 (QB) HHJ Walden-Smith, sitting as a Judge of the High Court, dismissed an appeal by a litigant in person against an order striking out his stress at work claim...	FREE BOOK CHAPTER: Noise Induced Hearing Loss Claims - from 'A Practical Guide to Disease and Illness Claims' by Andrew Mckie The Small Claims Track change for personal injury cases is likely to come into effect in October 2018. This book looks at other areas personal injury practitioners have begun to focus in, including industrial disease claims. This book covers issues in relation to industrial disease, and in particular focuses on the day-to-day issues in practice that one encounters with such cases including spotting the 'winners' and 'losers' quickly and efficiently, practical tips for investigation, litigation tactics, as well as a summary of the law, the important cases, and how to run these claims efficiently.
Running The Risk: Hannah Pook v Rossall School [2018] EWHC 522 (QB) - Colin Richmond, Zenith Chambers When I was young, running in the corridor at school was essentially considered a capital offence, particularly if committed whilst carrying scissors. For the modern student-about-school, many things have changed since my day. It would seem ludicrous to a modern twelve-year-old to find that their school owned only one computer...	Caparo Revisited - Paul Jarvis, 6KBW College Hill In Robinson v Chief Constable of West Yorkshire Police [2015] EWCA Civ 15; [2014] PIQR P14), a case that concerned an action in negligence brought by a woman who was injured in the street during an attempt by police officers to arrest a man suspected of drug dealing, Hallett LJ held that in deciding whether the officers owed the woman a duty of care the three-stage test in Caparo (Caparo Industries plc v Dickman [1990] 2 AC 605, 617 - 618) "applies to all claims in the modern law of negligence" (para.40)...
Editorial: Practical Guidance on Proving Whiplash Injuries - Aidan Ellis, Temple Garden Chambers Although the problems associated with determining potentially fraudulent or exaggerated whiplash claims are well known, since such cases depend heavily on the facts and the Court's assessment of the credibility of the Claimant(s) they rarely reach the higher Courts...	Springer v University Hospitals of Leicester NHS Trust - Alexander Hutton QC This case was concerned with the requirements (and the consequences of not complying with such requirements) to notify another party pre-action that a client has "additional liabilities" which are potentially recoverable from that other party or parties, i.e. where there is a conditional fee agreement with a success fee ("CFA"), and/or an after the event insurance ("ATE") premium...
Dryden and Others v Johnson Matthey PLC [2018] UKSC 18 - Andrew Horner, Pupil Barrister, Trinity Chambers The Supreme Court recently handed down judgment in Dryden and Others v Johnson Matthew plc. The judgment addressed the correct interpretation of "damage" in the context of occupational platinum salt sensitisation (PSS), an asymptomatic condition contracted in response to exposure to platinum salt...	Why it's important to #RepairTheRightBody - Qamar Anwar, First4Lawyers We recently launched a campaign called #RepairTheRightBodywhich urges the PI community to take action against the Civil Liability Bill. At the centre of the campaign is 'Jane', who suffers painful injuries as a result of an accident caused by a 'boy racer' but is left totally exposed by the government's reforms...
CPD Information Reading PIBULJ articles can help to meet the CPD requirements for solicitors, barristers and others. For further details see our CPD Information page. One Month Trial If you haven't subscribed yet there's no need to miss out. You can join for one month for just £1. Access the trial now!
The benefits of giving the paralegals in your firm formal recognition - Amanda Hamilton, NALP Do you have Paralegals working in your firm? Are they being recognised? It can be tempting not to give Paralegals the recognition they deserve, particularly if it appears to reduce costs...	Summary of Recent Cases, May 2018 Here is a summary of the recent notable court cases over the past month...
PI Practitioner, May 2018 Each issue a particular topic is highlighted, citing some of the useful cases and other materials in that area. This month: Low-Velocity Impact Claims - Defendant's Expert Evidence: A Practice Note...
Clinical Negligence Medicine by Dr Mark Burgin
Short Notes on Contributory Negligence 2018 - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP considers the elements that should be included in a primer for clinical negligence cases involving contributory negligence...	Short Notes on Secure Environments 2018 - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP considers the elements that should be included in a primer for clinical negligence cases involving secure environments...
Short Notes on Psychological Injury 2018 - Dr Mark Burgin Dr Mark Burgin BM BCh (oxon) MRCGP considers the elements that should be included in a primer for clinical negligence cases involving psychological injury...

Episode 6: 'Masterclass on Litigating Employers' Liability Claims After the Enterprise Act' Andrew Roy, 12 King's Bench Walk A one hour practical guide on litigating employers' liability claims after the Enterprise Act. Includes: the likely effects of s69, circumventing or mitigating the effects of s69, conventional common law principles, enhanced common law duties, direct application of European legislation, Francovich actions, other duties, practical considerations.

Episode 5: 'RTA Personal Injury: a 2015 Update - What Is Happening to PI in 2015?' Andrew Mckie, Clerksroom Andrew Mckie from Clerksroom presents a 35 minute guide to the latest developments in RTA personal injury claims. Covers fundamental dishonesty, inducements in PI cases, CUE for claimants, pre-medical offers, MedCo, and further problems.

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Clinical Psychology

Prof Hugh Koch
Adults & children, all PI, employment & sport, nationwide
www.cv.hughkoch.com & www.hughkochassociates.co.uk.

Psychiatry

Dr Gaius Davies
Emeritus Consultant Psychiatrist, King's College, Bethlem Royal and Maudsley Hospitals.  Reports for PTSD and other stress related disorders and general psychiatric problems.
Email:  gaius.davies@btopenworld.com.  Tel:  020 8650 8764.

Daniel Laking (2015), Temple Garden Chambers Daniel is developing a practice in all of Chambers’ core areas and regularly appears in the County Court on applications, fast track trials and small claims hearings. He is also available to draft advice, pleadings and schedules. He is currently instructed as a junior junior counsel to the Grenfell Tower Inquiry. DanielLaking@tgchambers.com

Scarlett Milligan (2015), Temple Garden Chambers Scarlett has extensive experience in small claims hearings, fast track trials, and interim hearings, with a particular focus on personal injury, credit hire, insurance fraud, and costs. She is currently instructed as a junior counsel to the Grenfell Tower Inquiry. ScarlettMilligan@tgchambers.com

Tim Kevan, www.timkevan.com Tim Kevan is a co-founder of Law Brief Publishing. He practised as a barrister for ten years at 1 Temple Gardens (now Temple Garden Chambers) specialising in PI, credit hire and civil fraud. During that time he wrote or co-wrote ten law books. He has since written two legal comedy novels for Bloomsbury Publishing based on the BabyBarista blog which has featured on both The Times and Guardian online.