24 February – 3 March 2011
Prepared by
Victoria Kennedy and David Kidman
Contents
Case of the week
Liability
Clinical Negligence
Procedure
Quantum
Costs
Press
Contact
To request cases or the full text of articles please contact:
Helen Cafferata
National Information Services Manager
Case of the week
(1) The Court of Appeal held that the court has the power to impose a condition of disclosure of an earlier expert report where there is a change of expert pre-issue and post-issue.
Whilst it is a matter for the court’s discretion, it was held that this is normally a power which should be exercised where the change in expert comes after the parties have embarked upon the pre-action protocol, and have therefore embarked upon the process of the claim.
In this case, the respondent claimant had obtained a medical report, pre-issue, from an orthopaedic surgeon, whose identity was disclosed to the appellant defendant in a pre-action letter. When proceedings were issued, the claimant relied upon medical evidence from a different orthopaedic surgeon and the defendant sought disclosure of the report from the first expert.
Beck v Ministry of Defence (2003) EWCA Civ 1043 and Vasiliou v Hajigeorgiou (2005) EWCA Civ 236 were considered and the Court of Appeal held that there was no justification for a report from an expert not to be disclosed when the expert had been put forward to the other party, agreed as being suitable and the expert had reported. The control afforded by CPR 35.4 was in place to maximise the information available to the court and to discourage expert shopping.
Ricky Edwards-Tubb v JD Wetherspoon Plc (2011)
See Lawtel doc AC0127795
Liability
(2) In a claim for personal injury, an owner and operator of a warehouse appealed against a decision that it breached its statutory duty to the claimant, who was an electrician employed by an electrical company to carry out work in the warehouse. The key statutory duty fell under the Workplace (Health, Safety and Welfare) Regulations 1992, in particular Regulation 17 – the duty to organise the workplace in such a way that pedestrians and vehicles can circulate in a safe manner.
Although it was accepted that the warehouse owner did not have control over how the claimant carried out his electrical work, it did have control over the way in which the claimant, other individuals and traffic, moved around the premises. Accordingly it fell within ‘matters within that person’s control’ under the Regulations. The appellant was found to be in breach of its statutory duty and the appeal was dismissed.
Ceva Logistics Ltd v (1) Mark Anthony Lynch (2) Steve W Lynch t/a SW Lynch Electrical Contractors (2011)
See Lawtel doc AC0127790
Clinical Negligence
(3) In a claim for clinical negligence relating to disabilities suffered by an infant patient following open heart surgery, a health authority was found not to be liable, based upon evidence that it was not realistically possible for the injury suffered to have been a negligent consequence of surgery.
The anaesthetist involved failed to detect signs that the claimant was developing pneumothorax and was therefore in breach of his duty to the claimant. However, it was found to be not realistically possible for the hypoperfusion injury to the claimant’s brain to have been caused by an undetected pneumothorax.
Grace Ellen Mugweni (By her Mother and Litigation Friend Susan Ruth Mugweni) v NHS London (Formerly South East London Strategic Health Authority)(2011)
See Lawtel doc AC0127773
Procedure
(4) An application for a wasted costs order, made on the grounds that there had been a breach of duty to the court relating to disclosure, was refused.
The jurisdiction of the court in relation to wasted costs is compensatory rather than punitive in nature and an applicant was required to establish that they would not have incurred the additional costs if the alleged breach of duty had not occurred. In this case it had not been shown that the breach of duty had caused the claimant to incur any wasted costs.
The court commented that it was heavily reliant on a solicitor’s duty to carry out or to at least personally supervise the listing of documents and the making available for inspection.
CMCS Common Market Commercial Services AVV v Samantha Anne Taylor: Samantha Anne Taylor v (1) Terence Roy Frederick Stoutt (2) CMCS Common Market Commercial Services AVV (3) Roland Jakober (2011)
See Lawtel doc AC0127777
Quantum
(5) JSB: Ch 6 (I)
Total Damages: £6,600
PSLA: £6,600
Injury: Superficial cuts and laceration to thumb
The claimant, aged 11 at the time of accident, was injured whilst on holiday at a cottage owned by the defendant when a shower door shattered. She sustained superficial cuts and a deep laceration to the thumb and made a full recovery from all physical symptoms within 17 months of the accident.
S (A Child) v Barker (2010)
See Lawtel doc AM0201675
(6) JSB: Ch 2(c)
Total Damages: £463,401
PSLA: £85,000
Injury: Severe head injury, some permanent loss of vision, reduced senses
The 41-year-old male claimant sustained injuries whilst being detained at a mental health unit of the defendant Trust. The claimant climbed out of a window onto a flat first floor window ledge and jumped. The claimant sustained multiple injuries including a severe head injury, serious fractures of both heels which extended into the ankle, loss of the right visual field in both eyes and sustained some significant cognitive difficulties being problems with memory, attention and mental flexibility. His award was broken down as follows:
PSLA: £85,000
Future loss of earnings: £224,650
Future treatment costs: £3,000
Past care: £1,250
Past loss of earnings: £138,898
B v Lancashire NHS Trust (2009)
See Lawtel doc AM0201674
(7) JSB: n/a
Total Damages: £47,500
PSLA: £15,000
Injury: Damage to teeth
Between the ages of 25 and 52, the female claimant attended and was treated by the defendant dentist. Although examinations had been carried out, her records did not provide details of any findings or of any specific assessments of her periodontal condition. She developed periodontal disease and had to undergo significant subsequent treatment. She was advised she would lose a number of teeth and require implant treatment in the future. She was awarded £47,500 in total damages out of court including an award for PSLA in the sum of £15,000.
Greenhalgh v H (2010)
See Lawtel doc AM0201676
Costs
(8) In considering whether a costs order made in favour of the third defendant against a claimant publicly funded by the Legal Services Commission could, pursuant to the principle in Lockley v National Blood Transfusion Service [1992] 1 WLR 492 be set off against a damages or costs award to the claimant from the other defendants, it was held that the two claims were closely connected and it was equitable to set off one against the other. Lockley applied.
Almas Ahmad v (1) Brent London Borough Council (2) National Probation Service (London) (3) Ministry of Justice (4) Parole Board for England & Wales (2011)
See Lawtel doc AC0127813
Press
(9) What next?
Considers the future for costs reform following the closure of the Government's consultation period on Lord Justice Jackson’s proposals.
See NLJ, 04/03/2011, p305
(10) Come in number 43
Discusses the impact of Rule 43 of the Coroners Rules 1984 which allows coroners to report and make recommendations to prevent further deaths in similar circumstances, particularly where health and safety issues are concerned.
See NLJ, 04/03/2011, p306
(11) Sporting chance
A review of cases on duty of care in sports and recreation.
See NLJ, 04/03/2011, p312
(12) Tumbles, tussles and toggles
Comments on Uren v Corporate Leisure (UK) Ltd concerning the non-delegable duty of an employer to carry out risk assessments, Everett v Comojo (UK) Ltd which considered a manager's duty of care for the actions of third parties and Scout Association v Barnes on the need to balance an activity's risk against its social value.
See NLJ, 04/03/2011, p314
(13) Under review
Discusses the criticism of success fees in MGN v UK and Redwing Construction Ltd v Wishart.
See NLJ, 04/03/2011, p321
(14) Court of Appeal ruling could see end of ‘expert shopping’
Reports on the decision in Edwards-Tubb v JD Wetherspoon concerning the use of alternative medical reports.
See Post Magazine, 03/03/2011, p10
(15) Enforcement notice fees likely
Reports on a speech by the chair of the Health and Safety Executive in which she indicated that the HSE is considering charging for enforcement notices.
See Health and Safety Monitor, February 2011, p1
(16) RIDDOR reporting requirements likely to change
Anticipates that RIDDOR requirements are likely to drop to seven days following HSE’s consultation on proposed changes to the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995.
See Health and Safety Monitor, February 2011, p3
(17) Working Time consultation
Reports that representatives of workers and employers are being consulted about changes to the Working Time Directive.
See Health and Safety Monitor, February 2011, p3
(18) WHO indoor air quality guidelines
The World Health Organisation has released a new set of global guidelines for indoor air quality.
See Health and Safety Monitor, February 2011, p4
(19) Construction product hazardous substances labelling
The European Parliament has approved a proposal that construction products containing hazardous chemicals should be clearly labelled.
See Health and Safety Monitor, February 2011, p6
(20) Silica research
Reports on the findings of a research report from the HSE concerning workers exposed to Respirable Crystalline Silica.
See Health and Safety Monitor, February 2011, p6
(21) Daily noise exposure monitoring effects
Comments on research which suggests that monitoring daily occupational noise exposure inside hearing protection alongside regular feedback on exposure from supervisors appears to reduce the risk of occupational noise induced hearing loss.
See Health and Safety Monitor, February 2011, p8
(22) COMAH guidance for surface engineering
Discussions on HSE guidance for surface engineering companies which come within the scope of the Control of Major Accident Hazards Regulations as a result of using toxic substances such as cyanides or hydrofluoric acid.
See Health and Safety Monitor, February 2011, p9
(23) Scissor lift alert highlights fatal accidents
Comments on an HSE Safety Alert concerning the need to regularly maintain, inspect and test safety related equipment on Mobile Elevating Work Platforms.
See Health and Safety Monitor, February 2011, p10
(24) European stress survey
The European Working Conditions Observatory has carried out research into work related stress in the EU.
See Health and Safety Monitor, February 2011, p11
(25) New FSA rules highlight urgent need for EL fund, say lawyers
Comments on new FSA rules requiring insurers to publish data on employers’ liability policies from April this year.
See April press release, 01/03/2011 or online
(26) Pesticides enforcement regulation consultation
A consultation on pesticides enforcement has been launched by the Department for Environment Food and Rural Affairs.
See Croner News, 03/03/2011
(27) Crane company fined after Tyneside worker’s narrow escape
A crane company was fined £8,000 and ordered to pay costs of £7,529 after workers were nearly struck by a steel girder weighing almost four tonnes when slings used to attach it to a lifting crane failed.
See HSE press release, 28/02/2011 or online
(28) Construction company fined after fatal trench collapse
A construction company was fined £5,000 with costs of £5,000 after a man working on an extension to a house died from asphyxiation when a trench collapsed on him.
See HSE press release, 28/02/2011 or online
(29) Tyneside firm sentenced after worker’s scaffold fall
A company was fined £1,500 and ordered to pay costs of £1,500 after a worker fell more than four metres to the ground from unsafe scaffolding.
See HSE press release, 28/02/2011 or online
(30) Stoke firm fined after steeplejack fall
A maintenance firm was fined £3,334 and ordered to pay £4,000 in costs after an employee fell eight metres from the roof of a church while repairing tiles.
See HSE press release, 28/02/2011 or online
(31) Haulage partnership fined after safety breaches
A haulage company was fined £8,000 after HSE inspectors discovered that equipment being used to move wood around a worksite was unsafe and loading, unloading and storage tasks carried out by workers had not been adequately risk assessed.
See HSE press release, 01/03/2011 or online
(32) Roofing firm put town at risk from asbestos
A roofing company was fined £12,000 and ordered to pay £22,375 in costs after it exposed the public to asbestos by using pressurised water washers to clean roof panels on industrial units which blasted the harmful material into the environment.
See HSE press release, 02/03/2011 or online
(33) Spalding firm fined after agency workers harmed
A company was fined £8,500 with costs of £2,478 after three workers were taken to hospital following a chemical incident which occurred when a worker accidentally mixed two cleaning chemicals which reacted together to produce a toxic gas.
See HSE press release, 02/03/2011 or online
(34) Steel firm fined after worker crushed
A steel company was fined £20,000 and ordered to pay costs of £24,052 after a man undertaking repairs to a broken strapping machine was crushed between a large electromagnet and fixed parts of the machine’s structure.
See HSE press release, 03/03/2011 or online
(35) Worker suffers multiple injuries following roof light plunge
A farmer was fined £6,000 and ordered to pay £1,530 in costs after a builder’s labourer suffered multiple injuries when he fell three metres through a fragile roof light.
See HSE press release, 03/03/2011 or online
(36) Company sentenced after worker breaks back in lift fall
A construction company was fined £25,000 and ordered to pay £15,000 in costs after a man fell six metres down a lift shaft at a construction site.
See HSE press release, 03/03/2011 or online
(37) Maintenance firm in court after plumber suffers acid burns
A company was fined £5,000 and ordered to pay £2,965 in costs after a worker suffered acid burns to his face while unblocking a sink. He had not been given appropriate protective clothing or training prior to the incident.