Legal Watch:Personal Injury6th February 2015Issue: 050

In This Issue:

• Public liability/landlord & tenant

• Public liability

• Damages

• From within Greenwoods

• From within Plexus Scotland

Public liability/landlord & tenant

Events

Plexus and Greenwoods hold a series of events which are open to interested clients. See below for those being held in the next few months:

The Major Bodily Injury Group (MBIG) | Spring

Seminar | 28.04.15 | The Wellcome Collection,

London

The case of Edwards v Kumarasamy (2015) EWCA Civ 20

considers the liability of a landlord for personal injury sustained

by a tenant when using a communal pathway, rather than as

the result of a defect within the demised premises.

The claimant/appellant rented a second-floor flat under an

assured shorthold tenancy. The defendant/respondent was

not the owner of the block of flats but had a long lease of

the flat. The accident occurred when the claimant was taking

rubbish out from his flat. He tripped over an uneven paving

stone in the pathway between the front door of the block and

the communal bins. He had not given notice of any defect to

the defendant before the accident and the defendant had given

no notice to his own landlord. A deputy district judge found

that the paved area was part of the structure or exterior of the

flat and awarded the claimant damages. On appeal, a judge

held that the defendant was not liable under the extended

covenant implied into the tenancy by S11(1A) Landlord and

Tenant Act 1985 because it was a precondition to liability that

notice of the defect had to be given.

“A landlord’s liability on his covenant to repair only required notice where the defect was within the demised property itself”Allowing the claimant’s appeal, the Court of Appeal held that

whether something was part of the structure and exterior of

a house depended on the facts. On the basis of the deputy

district judge’s findings of fact, the paved area was short and

part of the essential means of access to the front hall in which

the defendant had an estate or interest and it could properly

be described as the exterior of the front hall. In principle,

the extended covenant applied. The general rule was that a

covenant to keep premises in repair obliged the covenantor

to keep them in repair at all times, so that there was a breach

of the obligation as soon as a defect occurred. There was

an exception where the obligation was the landlord’s and

the defect occurred in the demised premises itself, in which

case he was only in breach of his obligation when he had

information about the existence of the defect such as would

put him on inquiry as to whether repair works were needed

and he had failed to carry out the necessary works with

reasonable expedition thereafter. Where a defect occurred

in the external part of the building that was not demised

to the tenant, the landlord was liable even though he had

no notice of the disrepair. The critical distinction, under

common law, was between that which was demised and

that which was not. Where, as in the instant case, there had

been an express grant of an easement the grant carried with

it an ancillary right on the part of the dominant owner to carry

out repairs on the servient owner’s land in order to make the

easement effective. A landlord’s liability on his covenant to

repair only required notice where the defect was within the

demised property itself. Parliament had not included any

requirement of notice. With implied terms, necessity rather

than mere reasonableness was the touchstone. The court

disagreed with the authors’ opinion in Dowding & Reynolds

(5th ed. para 20-37) that notice was required even in the

case of extended covenants.

Public liabilityThe case of Ford v Silverstone [Lawtel 30/01/2015] explores

the liability of an individual for injuries to a friend voluntarily

assisting with gardening.

The claimant, a friend of the defendant, had been helping

him renovate his newly-bought property. The claimant

cleared branches from the grounds and the defendant

worked a wood chipper. On one occasion the claimant was

alone and attempted to unblock the chipper by putting his

left hand inside it while the engine was running and three

fingers were severed. The claimant’s case was that he had

seen the defendant do the same thing when the machine

was blocked. He claimed that the defendant had told him

that the key to the wood chipper was lost, but that the key

to the lawnmower could be used on it instead. He said that

because the lawnmower key took five minutes to start the

chipper that the defendant did not switch the chipper off

when removing blockages. The defendant’s case was that

he had never lost the key to the chipper, which was kept in a

safe, and that he had never used the lawnmower key to start

it, or even knew that it worked. The defendant also claimed

that he would never have placed his hand in the machine

with the engine running. The claimant submitted that the

defendant owed him a duty of care.

“In no sense could it be said that the claimant was an employee”Rejecting the claim, the deputy High Court judge held that

the basis of the claim, namely that the claimant had been

shown how to unblock the chipper with the engine running,

was not borne out on the evidence. The court was not

persuaded by the claimant’s assertions regarding the key

to the chipper. The key had not been lost and was either

in use or in the safe. The defendant had appeared tidy and

meticulous; he would not have spent five minutes starting

the chipper using the wrong key. The evidence was also

that they were friends and that they enjoyed working on

the property together. In no sense could it be said that the

claimant was an employee. If the claimant had chosen not

to work that day that was a choice he was free to make.

His decision to resume branch clearance had been made

without discussion with the defendant. He had decided

to take the chipper out from behind the defendant’s car,

which would have been a surprise to the defendant, as the

claimant could not drive. When the chipper had become

blocked, he had decided to do something highly dangerous

which he had not seen the defendant doing. The machine

carried warnings about inserting hands without switching

the power off. The defendant did not owe the claimant a

duty of care. Such a duty might have arisen if the court had

accepted the claimant’s version of events, but even then the

court would have found a significant degree of contributory

negligence; on the day of the accident the claimant had

been extremely reckless.

DamagesTotham (Protected Party) v King’s College Hospital NHS

Trust (2015) EWHC 97 (QB) covers a number of points of

interest to those handling high-value personal injury claims.

The claimant, aged seven at the date of the hearing, claimed

damages for serious brain injuries sustained during her

birth, resulting in cerebral palsy. Liability was not in dispute.

Many heads of damage were agreed but a number were in

issue and were assessed by the High Court judge.

Damages for pain, suffering and loss of amenity were

assessed at £275,000, inclusive of the 10% uplift.

Past gratuitous care had been agreed at the NJC aggregate

rate but the claimant resisted the 25% discount on the basis

that her mother gave up a highly paid job and then went

back to working on a part-time basis in order to care for

the claimant and coordinate her complex arrangements

for care. In addition, the actual care rates for London were

higher than the aggregate NJC rate. The judge applied

the discount, finding that the arguments relied on by the

claimant did not make the case so unusual as to mean there

should be no discount.

The claimant’s mother had been her case manager until a

professional case manager had been appointed. The judge

allowed this also at the NJC aggregate rate less 25%.

The defendant argued that past expenditure on professional

case management had been excessive. However, the judge

was not prepared to criticise what had been done by the

claimant’s mother on the basis she acted reasonably in all

the circumstances.

The claimant’s life expectancy was reduced to age 47. But

for the accident her retirement age would have been 70 and

her life expectancy to 93.6. She was awarded £3,000 p.a.

for part-time earnings while in full time education (16 to

21). The judge then awarded a periodical payment for net

earnings of £32,694.51 from age 21 to 47. From this was

deducted £2,000 p.a. for the cost of travelling to work.

“The judge found the decision in Croke to be inconsistent with the principle of full compensation (but she was bound by it)”A claim was made for earnings during the ‘lost years’ from

47 to 70 and for loss of pension from age 70. The judge

would have allowed £32,694.51 and £12,000 respectively

as the bases for such awards but found that she could not

do so because she was bound by Croke v Wiseman (1982).

The rationale for the decision in Croke was that the court

should not speculate as to whether a very young claimant

might in future have had children who would require support.

The judge found the decision in Croke to be inconsistent

with the principle of full compensation. The defendant’s

negligence had reduced the claimant’s life expectancy so

that she would not earn the salary and pension which, on

the balance of probabilities, she would have earned. Only

the Supreme Court can resolve this issue.

A lump sum for childcare costs was refused on the basis

that it was highly unlikely that the claimant would now have

a child.

From within GreenwoodsClaimants come unstuck in induced accident claimsSA and JF v SS (Guildford County Court 7/01/2015)

This case arose out of a road traffic accident on 26/07/2012.

It was the claimants’ case that the defendant had simply

driven into the rear of their vehicle, which was stationary

waiting to turn right. However, our client’s insured disputed

the claims on the basis that the incident was deliberately

induced. The insured’s case was that the accident occurred

after he had passed the junction and that a third party

(lead) vehicle had braked sharply for no reason causing

the claimant to brake and the defendant to hit the rear of

the claimants’ vehicle. Bizarrely the lead vehicle stopped

even though it had not been involved in the collision. When

exchanging details it became apparent to the insured that

the occupants of the lead vehicle knew the claimants.

A defence was filed pleading fraud. Database searches

showed both claimants had a claims history and were linked

to other accidents that Greenwoods had dealt with, where

fraud had also been pleaded. The claimants were forced

to disclose copies of all pleadings, engineering evidence

and medical reports from previous accidents occurring in

the last four years. There were multiple inconsistencies in

the claimants’ reporting of injuries to the various medical

experts.

The matter came to trial and was listed for two days. Most

of the first day was taken up with cross examination of the

first claimant, who was forced repeatedly to admit that he

had lied in his witness statement and/or to the majority of

the medico-legal experts who had examined him in respect

of his various claims. He ultimately discontinued his claim

three quarters of the way through his evidence. However,

somewhat surprisingly, he continued to give evidence on

behalf of the second claimant because the second claimant

did not want to abandon his claim. This led to some almost

comical moments, with the first claimant refusing to answer

questions at one point and very nearly provoking the judge

to hold him in contempt of court.

On the second day, the second claimant discontinued his

claim, after cross examination, with a view to avoiding a

positive finding of fraud, having also admitted in the witness

box to lying in his statement and to his medico-legal expert.

This avoided the need for our client’s insured to give

evidence because the judge was more than satisfied that

the claimants had been shown to have lied and exaggerated

their injuries, and misled the court about previous accidents,

such that an award of exemplary damages should be

made. The judge indicated that, if the claims had not been

discontinued, he would have found positively that the

claimants had deliberately induced the accident. He also

commented that he had never encountered claimants who

had needed to admit so many times that they had lied.

However, he declined without a formal application from our

client to refer the matter to the Attorney General of his own

volition (pursuant to CPR 81.18(5)) because the claimants

were to be punished heavily in costs and damages.

The claimants were ordered to pay our client’s costs on the

indemnity basis, as well as pay £3,750 each in exemplary

damages (in addition to their share of the special damages

claimed).

The judge has also made provision for an application to

be made for a wasted or non-party costs order against

the claimants’ solicitors. However, he noted separately

that he had only known a handful of such applications

to succeed because of the difficultly proving both

negligence/misconduct and causation (that the negligence

or misconduct caused additional costs to be incurred),

particularly where ultimately the claims failed because of the

claimants’ dishonesty.

For further details please contact:

James Mansell

T: 01908 298264

E: jcm@greenwoods-solicitors.com

From within Plexus ScotlandScottish Consultation on Costs and Funding of Civil LitigationIn the light of previous consultations and the ongoing

reforms in the civil justice system the Scottish Minister for

Justice has now published proposals for funding claims in

the future. A consultation on these latest proposals is open

until 24 April 2015.

It is intended to maintain Legal Aid in Scotland but to make

it a fund of last resort. To that end the existing Speculative

Fee Agreements (no win/no fee arrangements) will be

encouraged but with the introduction of a cap on the

success fee (based on the costs recovered) that can be

charged by the pursuer’s solicitor. In addition it is proposed

that it should be permissible for solicitors to enter into

damages based agreements (DBA). Part of the consultation

is whether a cap should also be placed on what the solicitor

should recover under a DBA.

In funding arrangements in England and Wales, future

losses are ring-fenced from the calculation of the success

fee. It is not suggested that there should be an identical

provision in Scotland.

Claims management companies come under the spotlight.

They already offer DBAs. There is currently no intention to

regulate them, as in England and Wales, but they would

become subject to the same statutory controls as the legal

profession as regards DBAs. In the light of the relatively light

controls over DBAs a code of good practice is proposed

to ensure that claimants are fully advised of the terms and

conditions of an agreement and of their rights. There should

also be greater transparency about the existence of funding

arrangements.

To encourage further the use of speculative fee agreements

and DBAs it is suggested that qualified one way costs

shifting (QOCS) should be introduced in personal injury

and clinical negligence claims. There would be similar

safeguards as for England and Wales in the event of fraud or

unreasonable behaviour as defined in the Wednesbury case.

Respondents to the consultation are asked to consider if

these are sufficient to discourage all unmeritorious cases

and what impact the reforms may have on the volume of

claims and other resources, including the courts.

Counsels’ fees are also included in the consultation as part

of the attempt to control the cost of litigation. This would

see the introduction of a table of fees for counsel in the

Court of Session, to include those for solicitor advocates.

Scotland has been lacking any formal procedure for dealing

with multi-party claims. Several options are canvassed

for the future: a case management procedure (similar to a

group litigation order in England and Wales); a class action

procedure, with a single claimant bringing a claim on behalf

of a larger group; and a full class action procedure which

would allow interested parties to join a class action.

While it is anticipated that the proposals discussed above

will reduce disputes about legal expenses, the opportunity

is being taken to review the post of the Auditor of the Court

of Session, who is currently the only costs judge in the

Court of Session.

The government would also like to see legal representatives

made personally liable for expenses occasioned by their

own misconduct, something already possible south of the

border.

Legal Aid is currently available in Scotland only for

individuals. It is proposed that it should also be available

to financially eligible legal entities such as companies and

partnerships, but only as a fund of last resort.

So the process of change continues and we will keep you

up to date on all developments.

For further details please contact:

Cameron McNaught

T: 0844 245 4802

E: Cameron.mcnaught@plexuslaw.co.uk

The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 12 Dingwall Road, Croydon, CR0 2NA. Parabis Law LLP is authorised and regulated by the SRA.

www.plexuslaw.co.ukwww.greenwoods-solicitors.co.uk

Contact UsFor more information please contact:

Geoff OwenLearning & Development Consultant

T: 01908 298 216

E: gro@greenwoods-solicitors.com

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