26 August to 2 September 2010
Prepared by
Malcolm Keen and Paul Greaves
Contents
Case of the week
Liability
Quantum
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 claimant, born in 1958, sought compensation for sexual abuse he allegedly suffered whilst a pupil at the defendant’s school in the 1970s. He issued his claim in February 2007. Liability and limitation were tried together. The judge at first instance found that:
i) The abuse had taken place.
ii) The claim was late. It became time-barred in 1979.
iii) However, the judge exercised her discretion under section 33 of the Limitation Act 1980 and allowed the claim to proceed.
iv) Any prejudice in relation to causation was likely to be detrimental to the claimant’s case.
The defendant appealed, contending:
i) The judge was wrong to have decided whether or not the abuse had taken place before she decided whether or not to allow the claim to proceed under s33.
ii) In deciding whether the defendant had suffered prejudice in relation to causation, the judge had applied the wrong principle.
Findings
i) Section 33 discretion and whether the abuse occurred: order of the issues
Although the judge made her finding that abuse had occurred before she made her finding on s33, Thomas LJ considered it clear that, when the judge decided whether or not to exercise her section 33 discretion, she was directing her attention not to the finding she had made about the abuse occurring, ‘but to the cogency of the evidence, the claimant’s submission that the evidence was overwhelming and the [defendant’s] submission as to prejudice and in particular the impossibility of the court ascertaining the effects of the abuse.’ The judge did not adopt the approach that she was satisfied that the claimant had suffered abuse so therefore there could be no prejudice. Her analysis was based not on a finding that the abuse had occurred but on the cogency of the evidence of that abuse and the prejudice to the defendant.
Thomas LJ noted that the Court of Appeal’s requirement that judges must decide s33 before deciding liability was not the imposition of ‘a formulaic template for the construction of a judgment;’ it was a requirement that judges decide s33 ‘on an overall assessment, including cogency of the evidence and the potential effect of the delay on it.’ The judge approached s33 in accordance with this principle. There were ample grounds for concluding that the prejudice to the defendant and the general effects of delay had not materially affected the defendant’s ability to defend the claim. There was no basis for concluding that the order in which the judge approached the issues affected the way in which the s33 discretion was exercised.
ii) Prejudice in relation to causation
The judge was correct to find that prejudice in relation to causation ‘was likely to operate to the detriment of the claimant.’ Proving that the abuse had affected his university and professional career (resulting in substantial damages) ‘would be very difficult for the claimant in all the circumstances of the case.’
Raggett v (1) Society of Jesus Trust 1929 for Roman Catholic Purposes (2) Preston Catholic College Governors (2010)
See Lawtel doc: AC0125996
Sarah Murray-Smith, associate, and Jeremy Davies, partner, BLM Manchester comment:
The judgment clarifies that in assessing prejudice under s33, the court must consider the cogency of theevidence without making any findings as to liability. The assessment of cogency is not only a quantative assessment of the weight of evidence capable of being adduced by the partiesbut also a qualitative assessment. The qualitative assessment not only focuses upon the degradation of the evidence capable of being called but entitles the judge to consider thereliability of the claimant as a witness andthe strength of similar fact evidenceadduced for the purposes ofliability. The judgementreinforces the wide and unfettered nature of the courts discretionto disapply the limitation period under s33.
Liability
(2) The claimant, a labourer, suffered significant fractures to both his heel bones when he fell from a ladder seven feet from the ground. He had been removing lead flashing from a window sill when it suddenly came away and he lost his balance. A scaffolding tower was present on the site. The claimant alleged that the system of work was unsafe, the defendant had failed to act in accordance with the Work at Height Regulations 2005 and that it should have used the scaffolding tower.
The court held the defendant liable. The system of work was unsafe. It was foreseeable that the lead flashing might come away unexpectedly. Using the scaffolding tower would have been appropriate. However, the claimant was 20% contributory negligent – he was an experienced labourer who had carried out the task before and he ought to have been aware of the risk of the flashing coming away suddenly.
Limbrick v Ron Green and Son (2010) (Cardiff County Court)
See Current Law Weekly, volume 18, issue 31, 31.8.10
Quantum
(3) JSB Guidelines: Ch 6(L)(c)(i)
PSLA: £15,000 (out of court settlement)
Injury: Left leg 10mm shorter than right leg; clicking sensation and pain when walking
The claimant underwent a left hip replacement at the defendant’s hospital resulting in pain and discomfort, difficulty when walking, and her left leg being 10mm shorter than her right leg. Six weeks after revision surgery, her condition was improving and her legs were of equal length. She subsequently made a full recovery.
E v Plymouth Hospitals NHS Trust (2010)
See Lawtel doc: AM0201589
(4) JSB Guidelines: Ch 6(L)(c)(i)
PSLA: £12,000
Injury: Fractured left femur
The claimant, aged 72 at the date of the accident, fractured her left femur when she fell out of bed in hospital. She suffered severe discomfort, weakness and restricted movement in her left leg. Her mobility remained impaired, necessitating the use of a stick. She would, in future, continue to suffer symptoms and would need to use a stick.
Bowden v BMI Healthcare Ltd (2010)
See Lawtel doc: AM0201596
(5) JSB Guidelines: Ch 6(A)(c) and (B)(c)
PSLA: £5,000
Injury: Neck and back injuries
The claimant sustained soft tissue injuries to her neck and back resulting in pain and stiffness after a road traffic accident. Two years and four months after the accident she had made a 90% recovery and it was expected she would fully recover within two years and seven months from the date of the accident.
Michaela Romeo v Stuart Williams (2010)
See Lawtel doc: AM0201597
(6) JSB Guidelines: Ch 6(B) and (F)
PSLA: £80,000 (out of court settlement)
Injury: Shoulder dystocia resulting in severe right-sided brachial plexus injury
The claimant suffered shoulder dystocia during her delivery resulting in a severe right-sided brachial plexus injury. The claimant was left without any useful function in her shoulder and elbows, was only able to use her hand as a prop, and was unable to straighten her arm. She had reduced grip strength and sensation in her right arm. She experienced difficulties carrying out domestic tasks and daily activities. Her right arm was also left shorter and thinner than her left arm.
Kirsty Moore v West Midlands Strategic Health Authority (2010)
See Lawtel doc: AM0201598
(7) JSB Guidelines: Ch 6(B)(a)(iii)
PSLA: £37,500 (out of court settlement)
Injury: Fractured spine
The claimant suffered a fractured spine after an accident. However, his injury was not diagnosed at hospital and he suffered kyphosis and a prolonged period of pain. By the time the fracture was diagnosed his condition was such that he would need a transpedicular osteotomy to return to his pre-accident condition. This operation involved a risk of spinal cord damage.
McGoldrick v Gloucestershire Hospitals NHS Foundation Trust (2010)
See Lawtel doc: AM0201587
Practice and procedure
(8) The applicant applied to discharge a worldwide freezing order which had been made by the respondent without notice in relation to the respondent’s claim in respect of allegations of fraudulent transfers.
Held: The respondent had failed to make full and fair disclosure resulting in the court receiving a misleading picture of the strength of its case. The applicant also had well arguable defences to at least part of the claims. There was no real risk of dissipation of assets. The freezing order should be discharged.
Complete Retreats Liquidating Trust v (1) Geoffrey Logue (2) Hayden Holdings Foundation (Formerly Eden Holdings Foundation) (3) Emma Louise Logue (2010)
See Lawtel doc: AC0125523
Press
(9) Think tank attacks ‘impractical’ Jackson
Comments on a report for the Adam Smith Institute criticising Lord Justice Jackson’s proposal for civil litigation costs reform.
See SJ, 07/09/2010, p4
(10) Out of action
Discusses pre-action disclosure and costs.
See SJ Litigation Focus, September 2010, p11
(11) Seismic shift
Considers the impact of the implementation of Lord Justice Jackson’s proposals.
See SJ Litigation Focus, September 2010, p15
(12) Mind the trap
Accepting previously rejected Part 36 offers and Gibbon v Manchester City Council.
See NLJ, 03/09/2010, p1169
(13) Call of duty
Discusses local authorities and duty of care for unconventional forms of damage.
See NLJ, 03/09/2010, p1178
(14) Get ready… here it comes
Comments on Practice Direction 31B concerning disclosure of electronic documents, coming into force on 1 October 2010.
See NLJ, 03/09/2010, p1184
(15) What’s the alternative?
Discusses Lord Justice Jackson’s civil litigation costs proposals and alternative dispute resolution.
See NLJ, 03/09/2010, p1194
(16) Fraudulent claims: once bitten, twice shy
Comments on the Law Commission’s consultation Insurance contract law: the insured’s post-contract duty of good faith.
See Insurance Times, 02/09/2010, p25
(17) Squaring up to the bullies
Considers the impact of spending cuts on the ability of local authorities to fight rising claims.
See Insurance Times, 02/09/2010, p26
(18) Director duty prevarication continues
Reviews the HSE’s evaluation of its guidance on health and safety for directors and board members.
See HSB, August/September 2010, p1
(19) HSE prosecutions plummet to all-time low
Reviews an HSE report which indicates that the number of prosecutions that the HSE Field Operations Directorate has taken in the 12 months to April 2010 was less than half the total taken over the same period ten years earlier.
See HSE press release, August/September 2010, p2
(20) Bonkers conkers and other matters prompt PM review
Reviews responses to the announcement of Lord Young’s health and safety review.
See HSB, August/September 2010, p2
(21) Death toll reaches record low
Reports on the latest HSE fatal injury statistics.
See HSB, August/September 2010, p7
(22) Managing workplace risks – a pan-European picture
Looks at a new Europe-wide survey of safety managers and representatives, the European survey of enterprises on new and emerging risks.
See HSB, August/September 2010, p13
(23) Court digs deep to set fine
Reports on a Scottish appeal court decision, HM Advocate v Discovery Homes (Scotland) Ltd, which increased a fine by a factor of eight after a second look at the firm’s financial status.
See HSB, August/September 2010, p17
(24) Contractors call for changes at HSE
Reports that contractors have called for a change in the way the HSE operates in a paper submitted to Lord Young in relation to his review of safety legislation.
See Construction News, 02/09/2010, p5
(25) Company and director prosecuted after worker plunges 30 feet
A company was fined £20,000 and ordered to pay costs of £10,835 while its director was fined £10,000 after a worker fell nearly 30 feet from scaffolding at a building site.
See HSE press release, 01/09/2010 or online
(26) Company fined after two workers severely injured within three months
A saw milling firm was fined £28,000, £8,000 for the first incident and £20,000 for the second, after two employees were severely injured in separate events. In the first an employee fell through a gap in a raised walkway left open after work was done on a conveyor belt below. In the second an employee’s head was trapped between the metal parts of a hoist after it was switched on whilst he was working on it.
See HSE press release, 01/09/2010 or online
(27) Worker’s clothing set alight in electrical explosion
A company was prosecuted and fined £9,000 and ordered to pay an employee £4,000 after the worker suffered burns to his face and hand when a short circuit caused a localised electrical explosion. He was attempting to move a redundant electricity power supply because he wanted to fit new plasterboard behind it.
See HSE press release, 02/09/2010 or online
(28) Firm fined after worker burned
A company was fined £10,000 and ordered to pay costs of £5,227 after a worker received 60% burns following an explosion. The worker was cutting metal when a spark ignited vapours from the nearby can of thinner.
See HSE press release, 02/09/2010 or online
HSB - HEALTH AND SAFETY BULLETINIHL - IN-HOUSE LAWYER
JPIL - JOURNAL OF PERSONAL INJURY LAW
LSG - LAW SOCIETY GAZETTE
NLJ - NEW LAW JOURNAL
SJ - SOLICITORS JOURNAL
TLR - TIMES LAW REPORT
OHR - OCCUPATIONAL HEALTH REVIEW
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