Legal Watch:Personal Injury8th August 2014Issue: 030

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

In This Issue:

• Liability/RTA• Damages/fatal accident• Costs/QOCS• Watch this space – ‘Whiplash’ reform

Liability/RTAIn this publication’s predecessor, Greenwoods’ PI Alert 370, we reported the first instance decision in Landau v Big Bus Co Ltd and another. The case has now been to the Court of Appeal and is reported at (2014) EWCA Civ 1102.

The first defendant’s driver had been driving a tourist bus, the second defendant had been driving a car and the claimant had been riding a motor scooter when they approached a junction. They had all stopped at traffic lights before negotiating a sharp left-hand turn. The claimant’s scooter became trapped between the rear nearside of the bus and the rear offside of the car. He sustained a serious injury which necessitated a below-knee amputation. The judge found that he had not been in the position he said he was at the lights so that it was more likely that he was in both of the drivers’ blind spot. He found that neither defendant had been negligent and that, even if they had seen the claimant at the lights, they would have been entitled to rely on him to have had regard to the developing situation and to have held back.

The claimant appealed, submitting that the judge was wrong to have found that he was in the drivers’ blind spot when such a scenario had not been canvassed and was not supported by the evidence; that both defendants had taken all reasonable care when turning into the junction, as the first defendant’s driver should have seen him sooner and the second defendant’s position on the road had created the danger; and that even if the claimant had been visible, they were entitled to assume that he would hold back.

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‘…there was a well-recognised reluctance of appellate courts to interfere with findings of primary fact which depended on a judge’s assessment of witnesses...’Dismissing the appeal, the Court of Appeal held that there was a well-recognised reluctance of appellate courts to interfere with findings of primary fact which depended on a judge’s assessment of witnesses he had heard give evidence. The judge had made it clear that he was unable to make any positive finding as to the claimant’s position at the lights albeit that he considered it more likely than not that he was in a blind spot. The crucial finding was that the claimant was not in the position where he said he was, which meant that he had failed to prove his case that the defendants should have seen him at the lights. It was not a case where the judge’s conclusion was based on an alternative scenario introduced by him and not canvassed with the parties. The evidence did not undermine the judge’s suggestion of a blind spot.

There was nothing in the judgment or the evidence to justify the conclusion that the first defendant’s driver ought to have seen the claimant’s scooter sooner than she did. The judge was correct to conclude that she drove with reasonable care. The overall evidential picture was not clear-cut but the judge had grappled with it conscientiously and there was no proper basis for interfering with his evaluation. He was not wrong to find that the second defendant’s driving had not fallen below a reasonable standard.

The judge was not mistaken in his view that the drivers would have been entitled to assume that the claimant would hold back as they negotiated the turn.

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Damages/fatal accidentIn Knauer v Ministry of Justice (2014) EWHC 2553 (QB) we have a relatively rare but helpful report of the assessment of damages in a fatal accident case.

The deceased died from malignant mesothelioma in August 2009 at the age of 46. She had contracted the disease through exposure to asbestos while working as an administrator for the defendant between 1997 and 2007. She was diagnosed in March 2009, when she developed a hydro-pneumothorax and had to have a chest drain inserted. As she deteriorated she developed pleuritic aching, underwent an incomplete left pleurectomy and lung decortications, and was treated in hospital for vomiting, sickness and pain. The claimant claimed as the deceased’s widower and as the administrator of her estate. During the course of the marriage the deceased had managed the household and had been responsible for cleaning, cooking, laundry, ironing, shopping, walking the dogs, gardening and decorating. Liability was not in issue.

The High Court judge assessed general damages for pain, suffering and loss of amenity at £80,000. The J C Guidelines gave a bracket of £51,500 to £92,500. Although there were no appellate decisions on quantum, two broadly comparable first instance decisions were taken into consideration.

The cost of the deceased’s care was agreed at £11,520, disbursements at £3,587.91, and loss of her income during her illness at £2,313.

£5,749.60 was awarded for the loss of the deceased’s services during her illness. That was broken down into £4,669.60 for general household tasks, £780 for gardening and £300 for decorating.

There were agreed awards of £11,800 for bereavement and £2,283 for funeral expenses. There would be no award in respect of a wake (£725).

Had she not died, the deceased would have worked for many more years. The claimant therefore claimed for income

dependency and for loss of domestic services. He urged a departure from the conventional method of calculating the multiplier. He submitted that losses up to the date of trial should be treated as special damages, with a small discount for the uncertainties of life but none for accelerated receipt and that the multiplier for future loss should be calculated from the date of judgment. The court would have followed that route had it been able to do so. However, it was bound by Cookson v Knowles (1979) and Graham v Dodds (1983) to adopt the conventional approach. For income dependency from 2009 to trial, there was an award of £23,182. A dependency ratio of 75% was be applied to past loss of income, and one of 66% to future loss, to reflect the fact that the youngest of three sons was 21 and was at university. Allowing a three-month deduction for uncertainties, the deceased’s income up to trial would have been £59,522. The claimant’s would have been £85,837. Between 2007 and 2009, they had run a public house together, planning to sell it in 2011 whereupon the deceased would have returned to paid administrative work without much difficulty. In fact, they disposed of it when the deceased became ill.

For future income dependency there was an award of £82,136. Up to the deceased’s retirement age there was an annual loss of £5,835 with a multiplier of 10.93; from the deceased’s retirement age to the claimant’s retirement age there was an annual loss of £7,026 with a multiplier of 1.34; and from the claimant’s retirement age onwards there was an annual loss of £1,521 with a multiplier of 5.88.

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For past services dependency there was an award of £88,160 calculated using a multiplier of 4.86 and a multiplicand of £18,140. The deceased had spent 20 hours per week on household tasks (for which the judge allowed £8.98 ph), excluding gardening and decorating (£12 ph each). In calculating the multiplicand for future services dependency, the claimant sought an amount equivalent to the annual cost of engaging a resident housekeeper. However, it would not be reasonable to require the deceased to meet such a cost if broadly similar services could be obtained by other means. Such continuity of services could be provided by an agency for £16,640 per annum. Gardening and decorating services would cost a further £1,500 per annum (£900 for gardening and £600 for decorating). There would be no award for travel costs or online shopping delivery charges. It was irrelevant that since the deceased’s death the claimant had not engaged a housekeeper, gardener or decorator; he was entitled to the value of what he had lost (Hay v Hughes (1975)).

‘…It was irrelevant that since the deceased’s death, the claimant had not engaged a housekeeper, gardener or decorator...’For future services dependency there was an award of £329,241, calculated using the same multiplicand with a multiplier of 18.15. The appropriate award for loss of intangible benefits was £3,000, Fleet v Fleet (2009). The total award excluding interest was therefore £642,972.51.

CommentFrom a defendant perspective the most significant aspect of this judgment was the judge’s flat refusal to take into account that in the five years since the deceased’s death

the claimant had not engaged any of the services for which he claimed. While the judge acknowledged that he could have taken into account the claimant’s death prior to the assessment of damages he was otherwise bound by Hay v Hughes and the claimant was entitled to the value of what he had lost.

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Costs/QOCSQualified one-way costs shifting was always going to cause problems and Wagenaar v Weekend Travel Ltd and another (2014) EWCA Civ 1105 is probably just the first of many cases on the subject.

The claimant had been injured in a skiing accident whilst on a package holiday arranged by the defendant. It denied negligence and joined a ski instructor as a third party. The judge dismissed the claimant’s claim against the defendant and the defendant’s claim against the third party. He ordered that the claimant should pay the defendant’s costs and that the defendant should pay the third party’s costs. He applied the rules on qualified one-way costs shifting (QOCS) introduced by the Jackson reforms directing that, pursuant to CPR 44.13 and 44.14, neither costs order was to be enforced. In doing so he held that although the costs had been incurred before the QOCS rules came into force, the rules had retrospective effect. He also held that they applied to CPR Part 20 claims in the same way as they applied to primary claims between claimant and defendant.

The defendant and third party appealed. The defendant submitted that the judge had erred in applying the QOCS rules to the case. First, it argued that the rules were ultra vires S51(3) Senior Courts Act 1981. Secondly, it argued that they did not have retrospective effect. Finally, it argued that it had in place a pre-commencement funding arrangement within the meaning of CPR 48.1, to which the pre-QOCS rules should have been applied. The third party submitted that the judge had erred in holding that the QOCS rules applied to Part 20 proceedings.

The Court of Appeal held that the QOCS rules were not ultra vires S51(3) of the 1981 Act. The defendant’s case was that S51 did not allow secondary legislation to restrict the High Court’s power, set out in S51(3), to determine by whom or to what extent the costs of litigation were to be paid. However, that power had to be read as being subject to the power of the rules committee to make rules of court about the availability of an award of costs, the amount of

costs and the exercise of the court’s discretion in relation to costs. The costs jurisdiction was set out in the widest terms in S51(1) and was expressly subject to the power of the rules committee to make rules of court. The basic rule was that costs were in the discretion of the court, subject to rules of court. The power in S51(3) had to be read as being subject to the qualifications in S51(1) and S51(2).

The defendant’s argument that the QOCS rules should not have been applied retrospectively was unsound. It was true that, had the matter been litigated two months earlier, the costs consequences would have been different. However, that was an inevitable consequence of procedural reform; there had to be a cut-off point and somebody would always be on the cusp of it. Moreover, the presumption against retrospective effect did not apply to legislation concerned with matters of procedure. Provisions concerning procedure were to be construed as being retrospective absent some clear indication that that was not the legislature’s intent. There was nothing in CPR 44.1-44.17 to indicate that they were not intended to be retrospective. Indeed, they were clearly intended to be retrospective.

CPR 48.1 and 48.2 did not take the pre-commencement funding arrangement outside the QOCS regime. The QOCS regime had only one specific transitional provision, which was contained in CPR 44.17 and provided that the QOCS rules did not apply to proceedings where the claimant had entered into a pre-commencement funding arrangement. The claimant had not entered into any such arrangement. CPR 48.1 disapplied the provisions of CPR 43-48 “relating to funding arrangements”, not relating to costs generally. The QOCS provisions related to costs orders in personal injury claims, not to funding arrangements.

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The judge had erred in holding that the QOCS rules applied to the Part 20 claim against the third party. The proper meaning of the word “proceedings” in CPR 44.13 had to be divined primarily from the QOCS rules. CPR 44.13 – 44.16 concerned claimants who were making a claim for damages for personal injury, whether in the claim, in a counterclaim, or by an additional claim. In the context of the QOCS regime, the word “proceedings” in CPR 44.13 did not mean the entire umbrella of litigation in which commercial parties disputed responsibility for the payment of personal injury damages. Rather, it was used because the QOCS rules were intended to catch claims for damages for personal injuries where other claims were also made by the same claimant. CPR 44.13 applied QOCS to a single claim against a defendant in which the claimant sought damages for personal injury but might also be making claims for damaged property and the like. It did not apply QOCS to the entire action in which a claim for damages for personal injury was made.

‘In the context of the QOCS regime, the word “proceedings” in CPR 44.13 did not mean the entire umbrella of litigation...’The defendant’s appeal would be dismissed. The third party’s would be allowed. The defendant would be ordered to pay the third party’s costs to be assessed on the standard basis if not agreed.

CommentAs with so many of the recent reforms, unintended consequences are beginning to appear. CPR Part 20 expressly provides that “the purpose of this Part is to enable…additional claims to be managed in the most convenient and effective manner.” That is why in a case

like Wagenaar the appropriate course was to run the claim and third party action effectively as one. With this ruling in mind, however, defendants are bound to think differently. If the defendant feels sufficiently confident it will fight the claimant’s claim and if successful suffer the consequences of QOCS. If, however, it is unsuccessful it will now bring fresh contribution proceedings against a third party, resulting in additional cost, delay and the use of court resources if there is a second trial.

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Watch this space – ‘Whiplash’ reformThe next stage in the government’s assault on whiplash claims comes in the form of amendments to the Civil Procedure Rules that will take effect on 1 October and will relate to soft tissue claims started under the RTA ‘Portal’ protocol on or after that date.

There is little real change as yet to the process: the amendments relate largely to costs. Primarily the cost of the first permitted report will be fixed at £180 (irrespective of the medical discipline form which it comes) and if permission is given for further medical evidence the fees will also be fixed, depending on the nature of the evidence:

• Consultant Orthopaedic Surgeon £420• A & E Consultant £360• GP £180• Registered Physiotherapist £180An additional medical report will only be commissioned on the recommendation of the expert providing the initial fixed fee report.

Outside of these fields medical expert evidence is permitted but both the use of the expert and the cost must be justified.

There are also fixed fees for:

• Addendum reports £50• Responses to Part 35 questions £80 • Obtaining of medical records £30 plus provider’s

charges but capped at £80 per set of recordsAlthough the revised rules effectively prohibit obtaining a report from a treating expert, they do not otherwise restrict who is instructed to prepare a report and there is no sign yet of the panel of independent experts or any attempt to control the use of agencies (beyond the restricted costs). Further progress in this regard is promised by the end of the year when a new scheme is to be introduced based on ‘random allocation’, peer review and auditing.

Similarly, the attack on pre-med offers has been dealt with through costs. Defendants may still make such offers but even under Part 36 they have no impact on costs until 21 days after the defendant has received the fixed cost medical report.

There will be consequential amendments to the pre-action protocol for low-value RTA claims and to the Practice Direction. The protocol will contain a definition of a soft tissue injury claim as one “brought by an occupant of a motor vehicle where the significant physical injury caused is a soft tissue injury and includes claims where there is a minor psychological injury secondary in significance to the physical injury.”

In a limited number of cases, primarily where the factual circumstances of an accident are disputed, the defendant’s representative will be able to provide the medical expert with his version of events. The defendant must provide a written authority to do so.

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: 8 Bedford Park, Croydon, Surrey CR0 2AP. Parabis Law LLP is authorised and regulated by the SRA.

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

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