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Legal WatchPersonal InjuryJanuary 2014
Issue 004
02
Cases relating to damages in fatal accident cases are
relatively rare and the case of Haxton v Philips Electronics
Plc (2014) EWCA Civ 4 is therefore of particular interest,
although, as the court made clear, the point in issue was
one of some novelty. The claimant had suffered a reduction
in her damages because of the operation of the Fatal
Accidents Act. Could she recover the shortfall as a head of
damage in her own claim?
The claimant’s husband had died as a result of contracting
mesothelioma through exposure to asbestos during
his employment with the defendant for over 40 years.
Subsequently the claimant, whom the defendant had never
employed, was also diagnosed with mesothelioma; as she
had come into contact with asbestos when she washed the
deceased’s work clothing. Proceedings in the claimant’s
capacity as widow and administratrix of her husband’s
estate under the Law Reform (Miscellaneous Provisions) Act
1934, and also as a dependant under the Fatal Accidents
Act 1976 were settled by consent, and damages for loss
of dependency were based on the claimant’s remaining life
expectancy being 0.7 years due to the mesothelioma. The
claimant had also issued proceedings in her own right for
damages for negligence and breach of statutory duty. Liability
was again conceded and damages agreed at £310,000, but
recovery of a further £200,000 was denied in relation to her
future dependency claim. The claimant argued that but for
the defendant’s negligence, her life would not have been cut
short and the assessment of her dependency claim in the
first action would have been significantly greater. The issue
was whether the claimant’s common law dependency claim
in her own right was a recoverable head of damage. The
claim was dismissed at first instance.
Events
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In This Issue:
• Damages/Fatal Accident
• RTA/Liability
• Civil Procedure
• Civil Procedure/Litigation Friend
Damages/Fatal Accident
03
In her appeal, the claimant submitted that it was in principle
legitimate to allow as a head of damage a diminution in
value of a chose in action resulting from a negligent act.
“...the reduction in the dependency compensation was a loss actually suffered by the claimant when her dependency claim under the Fatal Accidents Act was settled”Allowing the appeal, the Court of Appeal held that there
was no reason of principle or policy which deprived the
claimant from recovering damages which represented the
loss she had in fact suffered as a result of the curtailment
of her life by the defendant’s admittedly negligent action.
The 1976 Act conferred a statutory right to recover for the
loss of dependency and in the claimant’s claim under that
Act she could not recover more than her actual loss; but
there was no reason why the diminution in the value of
that right resulting from the defendant’s negligence could
not be recovered as a head of loss in her personal action.
That did not interfere with the principles governing the
payment of compensation under the legislation; they were
left wholly unaffected. The claimant’s claim was a common
law claim for damages for loss of dependency; it was one
for diminution in the value of a valuable chose in action,
a statutory right. There was nothing in the language of the
1976 Act or the authorities which suggested that there was
any special attribute distinguishing that particular chose in
action from any other. That head of loss was recoverable in
law. Moreover, in the same way that a loss or diminution of
a contractual right might be recoverable even though it was
not directly suffered by a claimant, a fortiori that should be
the case where, as in the instant case, the reduction in the
dependency compensation was a loss actually suffered by
the claimant when her dependency claim under the Fatal
Accidents Act was settled. The fact that the source of that
right was statutory and not contractual was not a material
distinction.
The claimant’s personal dependency claim was not too
remote: it was reasonably foreseeable that a curtailment
of life might lead to a diminution in the value of a litigation
claim and if a claimant had such a claim, a wrongdoer
must take the victim as he finds him. It had to have been
foreseeable to the defendant that the claimant would have
dependency rights which would be diminished as a result
of its negligence. The claimant was entitled to an additional
£200,000.
Haxton v Philips Electronics Plc (2014) EWCA Civ 4
04
RTA/LiabilityThere are two cases under this heading. Both were decided
on the basis of what a prudent driver would have done in
the circumstances.
“The driver’s action was a reasonable reaction of a reasonable bus driver”
In Cridland (Protected Party) v Stagecoach (South) Ltd
[Lawtel 23/01/2014] the claimant had been a passenger on
a double deck bus being driven by the defendant’s driver.
Ahead of the bus and heading in the same direction was
a youth who was riding a push scooter. When the bus was
a few feet from the youth it was braked violently and the
claimant was thrown forward suffering serious injuries.
The defendant argued that the driver had seen the youth
ahead of him, maintained observation and when he was a
car length away slowed down to 11 mph, and could not
overtake the youth because of an oncoming vehicle. He
sounded his horn so that the youth could move aside and
that his intention was to make him aware of his presence.
The youth’s unexpected reaction was to make a gesture
which appeared to be to throw his scooter into the air and
motioning to throw it at the bus’s windscreen; and that the
driver’s action in braking was to avoid that happening. The
youth then carried on and disappeared from the scene.
Evidence was given by a number of passengers and there
was a CCTV recording from the bus. The claimant himself
was too unwell to give evidence and had no memory of the
accident. Evidence was given by his partner and litigation
friend who had also been on the bus. The partner’s evidence
was that before and after the sudden braking the driver had
made abusive and obscene gestures at the youth and had
allowed himself to become cross with him. The driver gave
evidence on behalf of the defendant, along with a number
of other witnesses who had been passengers on the upper
deck. The trial was in respect of liability only.
Dismissing the claim, the deputy High Court judge held
that where the claimant’s partner’s evidence conflicted
with the defendant’s driver’s, the driver’s evidence was to
be preferred. The defendant’s witnesses evidence was not
internally inconsistent. The driver’s evidence was consistent
with that of the other witnesses whose view was that the
accident was the youth’s fault. None of those witnesses
criticised the driver. If he had not sounded the horn the
youth would have carried on. The youth’s refusal to get out
of the way was clear anti-social behaviour. The defendant
had employed the driver for seven years; at the date of the
accident he was experienced and properly trained. The driver
was a credible witness and had a good personnel record.
The defendant’s other witnesses were all on the upper deck
of the bus and had a good view of the accident. The youth
aggressively swung himself in the air bringing the scooter
near the bus’s windscreen. The driver’s reaction in those
circumstances could not be faulted. From the CCTV footage
the driver’s gestures were not provocative or abusive, in any
case the youth did not see them. It was the honking of the
horn and not the proximity of the bus that caused the youth
to make his gestures. The driver was aware of the oncoming
vehicle which was visible from the CCTV evidence. The
youth was aware of the bus but chose to remain in the road.
His reaction was not one of alarm but a threat of violence.
No reasonable driver could have predicted that the youth
would have reacted in the way he did. The driver’s action
was a reasonable reaction of a reasonable bus driver. He
was not speeding and at the critical point he slowed down
and braked. It was the youth’s gesture that caused him to
brake and he had no alternative but to brake. The driver had
not allowed himself to become cross with the youth. The
accident was caused by the youth’s anti-social behaviour in
making the gesture that he made.
05
The second case is Train v Secretary of State for Defence
[Lawtel 23/01/2014].
The claimant’s deceased husband had been riding his
motorcycle down a road on a barracks when he crashed into
the side of a minibus driven by a soldier, which had begun
to turn right in front of the deceased in order to enter a filling
station. The soldier said that he had observed the road and
seen the deceased, but had concluded that he had enough
time to make the turn as the motorcycle was far away, and
that he had not seen the deceased after that. Witnesses
at the scene gave evidence that the deceased had been
travelling very fast and that he had glanced momentarily
to the left towards a group of soldiers before seeing the
minibus ahead and braking sharply. It was conceded that
the deceased had been driving in excess of the speed limit.
The issue was who had caused the accident.
“A prudent driver would have waited until the deceased had passed unless he had been sure of the motorbike’s speed”
Finding in favour of the claimant but with a finding that the
deceased had been contributorily negligent, the deputy High
Court judge held that the starting point was that the deceased
had the right of way and that the soldier should only have
turned if it was safe to do so. The deceased was travelling
certainly in excess of 30 mph and probably in excess of 40
mph before he realised that the minibus was ahead. The
soldier had been a consistent witness throughout and his
account that he had observed the road before turning right
and genuinely believed that there was sufficient time to turn
was accepted. By driving over the speed limit and glancing
to the left at the soldiers the deceased was unable to stop in
time. Nevertheless the soldier should not have turned until
he was satisfied of the motorcycle’s speed. A prudent driver
would have waited until the deceased had passed unless
he had been sure of the motorbike’s speed. Although the
soldier had said that he was certain that he had enough time
to make the turn, the court was not satisfied that he had
assessed how fast the deceased was travelling. He should
have seen that the motorbike was going in excess of 20
mph, and if in any doubt about that, waited. The deceased
was the principal but not the only author of his misfortune.
Damages recoverable were to be reduced by 80 per cent
having regard to the deceased’s part in the accident.
CommentIt is a matter of semantics only but it is interesting that the
judges in these cases both referred to the ‘prudent’ driver.
In Stewart (Protected Party) v Glaze (2009) the trial judge
stated that a driver’s actions had to be considered by
reference to the standard of a reasonable driver, whereas
in Boyle v Commissioner of Police of the Metropolis (2013)
the judge covered both bases by using the term ‘reasonably
prudent’ driver .
Cridland (Protected Party) v Stagecoach (South) Ltd
[Lawtel 23/01/2014]
Train v Secretary of State for Defence [Lawtel
23/01/2014].
06
Civil ProcedureIn the post Mitchell era it seems inevitable that there will be
a flurry of cases confirming how in the future the courts will
approach various forms of application. In the commercial
case of M A Lloyd & Sons Ltd v PPC International Ltd (2014)
EWHC 41 (QB) it was witness statements that were under
consideration. This case also illustrates that an agreement
between the parties may not be sufficient for the court.
The claimant had brought a claim for breach of a
confidentiality agreement and passing off. The defendant
was a company incorporated under the laws of Brunei. The
claimant argued that the defendant was “legally extinct”
and had no entitlement to litigate in the United Kingdom.
The claimant was ordered to file and serve a witness
statement by 25 October 2013 dealing with matters of fact,
and a skeleton argument on matters of law, in connection
with the defendant’s existence and entitlement to litigate.
The defendant was ordered to file and serve a statement
in response. By the date of the defendant’s application in
December 2013, the claimant had failed to file a statement
or skeleton. The claimant thereafter proposed a revised
timetable which the defendant agreed. The claimant
therefore did not attend the hearing of the defendant’s
application but produced a draft statement which asserted
that it had been unable to comply with the order because
the registry for companies in Brunei would not release the
requisite information without first receiving a number of
documents from the defendant. The statement went on to
list those documents which the claimant believed it was
necessary for the defendant to disclose. The claimant’s
counsel attended court the morning before judgment was
to be handed down and made fresh submissions.
The High Court judge held that the following matters were
abundantly clear: (a) the claimant should have informed the
court of its alleged inability to provide the evidence before
the order was made; (b) if the fact that the claimant would
be unable to comply with the order only came to light after
it had been made then the claimant should have made
an application to extend time for compliance as soon as
practicable and before the deadline for compliance had
passed; (c) the claimant should have made a prompt
application for specific disclosure of the categories of
document sought and not simply incorporated a wish list of
such documents in the body of a witness statement in the
forlorn hope that the court would make an order of its own
motion (emphasis added).
“In light of the decision in Mitchell, the courts had taken a consistently robust approach to the late service of witness statements”
As the matter currently stood, the claimant was precluded
by the operation of CPR 32.10 from calling at trial any
intended witness in respect of the issues identified in the
order. The burden of proof in respect of the issues raised
about the defendant’s standing fell upon the claimant. In the
absence of evidence, the claimant’s contentions in respect
of those issues would fail unless the court was persuaded
to grant relief from sanctions under CPR 3.9. The court was
entirely satisfied that there was no realistic prospect that
relief from sanctions would ever be granted. In light of the
decision in Mitchell, the courts had taken a consistently
robust approach to the late service of witness statements.
The claimant’s delay of nearly three months was serious
and the resultant breach could not be categorised as trivial.
Further, there was no evidence of any good reason for the
delay. It was not open to the claimant to allow weeks to pass
07
without taking positive steps to comply with the order on the
basis that further disclosure, for which no formal application
had been made, was awaited. The fact that the claimant
had proposed a consent order extending time fell far short
of salvaging its position. It was clear from CPR 3.8(3) that
the time for doing acts ordered by the court could not be
extended by agreement between the parties. It followed that
even if the parties had reached a concluded agreement on
an extension of time it would not have been effective unless
the court formally endorsed it. The court declined to take
the course advocated by the defendant’s application. Its
response to the claimant’s default was unduly timid. In the
circumstances, the proper approach was to make an order
debarring the claimant from raising any issue at trial relating
either to the existence of the defendant or its entitlement to
litigate in the UK.
The court had power under CPR 23.11 to re-list an
application where it had proceeded in the absence of one
of the parties, but it was a power that was to be exercised
sparingly. As a result of the claimant’s decision not to
attend, the judgment which was to be handed down the
following day had to be re-drafted to take into account the
fresh submissions raised by its counsel. A disproportionate
amount of the court’s time had been taken up. A party could
not simply assume that it could absent itself confident in the
assumption that CPR 23.11 afforded a comfortable fallback
position if the court’s order was not to its liking.
We also mention briefly the case of Webb Resolutions Ltd
v E-Surv Ltd (2014) EWHC 49 (QB) which shows that the
Mitchell approach applies equally to an application seeking
permission to appeal out of time. A party in default seeking
an extension of time for a renewed application for permission
to appeal had to satisfy the same tests as were applied to
the default in Mitchell. In the instant case the default was
not trivial; the delay had been for a period of about three
times that permitted by the rules and there was no good
reason for the delay. Accordingly, the earlier order extending
time was set aside and permission to appeal was refused.
M A Lloyd & Sons Ltd v PPC International Ltd (2014)
EWHC 41 (QB)
08
Civil Procedure/Litigation FriendFrom time-to-time it becomes necessary for one party to
litigation to suggest that a claimant’s litigation friend may
no longer be the most suitable person to fulfil that role. The
most common situation that we have experienced is where
a mother finds it impossible to detach herself from her role
as mother to make objective decisions as litigation friend.
In M (A child) v London Borough of Lambeth and others
(2014) EWHC 57 (QB) it was the suitability of the claimant’s
father that was under scrutiny.
“It was probable that if a new litigation friend were to be appointed the claimant’s parents would remain as unco-operative as they currently were...”
The claimant had fallen from the window of a block of flats
and suffered serious injuries. He was aged four at the date of
the accident. By the date of the instant hearing he was aged
approximately 14. His medical expert stated that he had
probably suffered a brain injury and there was “significant
brain impairment” caused by the accident. However, the
defendant’s experts stated that the claimant’s impairments
“were consistent with his pre-injury functioning” and on
balance were probably “secondary to his inherent pattern
of development and may have been contributed to by social
and cultural factors”. The claimant’s father and litigation
friend was no longer prepared to co-operate with medical
experts and was not amenable to putting recommended
support in place for the claimant. He had instructed the
claimant’s solicitor to settle the claim as soon as possible.
The solicitor sought the court’s guidance upon whether
the father’s appointment as litigation friend should be
terminated, and whether the case should be settled even
though it remained unclear whether the claimant had
suffered a brain injury, and what his disabilities might be in
the future.
The High Court judge dealing with the application held that
any settlement would require the approval of the court, but
it would not be appropriate for a claimant’s legal advisers to
pursue a negotiated settlement unless there was a reasonable
prospect of the court approving it. It was probable that if
a new litigation friend were to be appointed the claimant’s
parents would remain as unco-operative as they currently
were, and that would not assist in advancing the claimant’s
best interests. Having considered the evidence, and the
claimant’s counsel’s thoughtful submissions, the best
course in the circumstances was for the claimant’s legal
representatives to seek to negotiate settlement on the basis
of the existing medical and other evidence, as instructed by
the claimant’s father.
M (A child) v London Borough of Lambeth and others
(2014) EWHC 57 (QB)
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