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Personal Injury and Clinicial negligence winter newsletter 2015

<table id="templateContainer" style="width: 600px" border="0" cellspacing="0" cellpadding="0"> <tbody> <tr> <td style="border-collapse: collapse" align="center" valign="top"> <table id="templateHeader" style="padding: 0px;width: 600px;border-top-color: #a3adb7;border-top-width: 4px;border-top-style: none;background-color: #000000" border="0" cellspacing="0" cellpadding="0"> <tbody> <tr> <td style="border-collapse: collapse"><img style="margin: 0px;padding: 0px;border: 0px currentColor;height: auto;line-height: 100%;text-decoration: none;max-width: 600px" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/91cf6bc3-bfb2-4c1e-a483-5a705d180cea.jpg" alt="" border="0" /></td> </tr> </tbody> </table> </td> </tr> <tr> <td style="border-collapse: collapse" align="center" valign="top"> <table id="templateBody" style="width: 600px;background-color: #ffffff" border="0" cellspacing="0" cellpadding="40"> <tbody> <tr> <td style="padding-bottom: 20px;border-collapse: collapse" align="center" valign="top"> <table style="width: 100%" border="0" cellspacing="0" cellpadding="0"> <tbody> <tr> <td class="bodyContent" style="text-align: justify;color: #43404d;line-height: 150%;font-family: 'Helvetica Neue', Arial;font-size: 14px;border-collapse: collapse" colspan="3" valign="top"> <h1 class="null" style="margin: 0px 0px 10px;text-align: center;color: #000000;line-height: 100%;letter-spacing: 1px;padding-bottom: 0px;font-family: 'Helvetica Neue', Arial;font-size: 24px;font-weight: bold">e-newsletter Winter2015</h1> </td> </tr> <tr> <td class="bodyContent" style="text-align: justify;color: #43404d;line-height: 150%;padding-top: 40px;padding-bottom: 20px;font-family: 'Helvetica Neue', Arial;font-size: 14px;border-collapse: collapse" colspan="3" valign="top">In This Edition: <ol> <li><a style="color: #007fff;font-weight: normal;text-decoration: underline" href="http://us5.campaign-archive1.com/?u=144b218d797e92c5750fd17ed&id=4f4b0efbb8&e=[UNIQID]#1" target="_blank" rel="noopener noreferrer">An message from Andy Gray, clerking Director.</a></li> <li><a style="color: #007fff;font-weight: normal;text-decoration: underline" href="http://us5.campaign-archive1.com/?u=144b218d797e92c5750fd17ed&id=4f4b0efbb8&e=[UNIQID]#2" target="_blank" rel="noopener noreferrer">Hylton Armstrong takes a look at qualitative vs. Quantitative case & material contribution causation. </a></li> <li><a style="color: #007fff;font-weight: normal;text-decoration: underline" href="http://us5.campaign-archive1.com/?u=144b218d797e92c5750fd17ed&id=4f4b0efbb8&e=[UNIQID]#3" target="_blank" rel="noopener noreferrer">Georgia Nolan's article of "a tightening of the straitjacket?" enlightens readers of secondary victim claims.</a></li> <li><a style="color: #007fff;font-weight: normal;text-decoration: underline" href="http://us5.campaign-archive1.com/?u=144b218d797e92c5750fd17ed&id=4f4b0efbb8&e=[UNIQID]#4" target="_blank" rel="noopener noreferrer">Gareth Price and Abigail Telford provide us with a portal update. </a></li> <li><a style="color: #007fff;font-weight: normal;text-decoration: underline" href="http://us5.campaign-archive1.com/?u=144b218d797e92c5750fd17ed&id=4f4b0efbb8&e=[UNIQID]#5" target="_blank" rel="noopener noreferrer">upcoming events within Parklane Plowden Chambers. </a></li> </ol> <hr />  <img style="margin: 0px;border: 0px currentColor;width: 180px;height: 213px;line-height: 100%;text-decoration: none" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/94b3b465-4367-4070-b558-d4f9f9f84cfc.jpg" alt="" width="180" height="213" align="none" /> <a id="1" style="color: #007fff;font-weight: normal;text-decoration: underline" name="1"></a>1. A message from Andy Gray, Clerking Director.   Introduction Welcome to our winter edition of the Parklane Plowden Personal Injury & Clinical Negligence newsletter. I, as I suspect many of you do, wonder about the wisdom of asking the chambers Grinch to write the foreword for the WINTER newsletter but I have that honour and am delighted. With Christmas and a New Year soon upon us it is perhaps time to briefly reflect on what sort of year 2015 has been for us at PLP. We have of course had the sad loss of Tim Hirst and all our thoughts are with Linde and all the family.   The former Leader of the North Eastern Circuit and Head of Chambers for many years (on more than one occasion) Stuart Brown QC announced his retirement at our Annual conference held at Rudding Park in October. Tanto atteso you may be saying but I would like to pass on my personal thanks to Stuart for an eventful but ultimately enjoyable last 26 years - meraviglioso.  Chambers wishes you all the best in your retirement. Happily we see the return of Tom Vonberg to the PICN team and Kristian Mills joins us from another North East set. It is perhaps unsurprising to note that the theme running through previous newsletters over the years has been one of caution given the considerable changes to the legal world and how we all operate as businesses going forward. The clerks room has seen a change in personnel too which has been borne of the new structure which Michael alluded to in our spring edition. Our Executive Board and our Service Board are quite unique on this circuit and we are beginning to see the benefits of the hard work of the last 12 months. My personal thanks go to Richard Copnall for all the time and effort he has put into setting this up. What we have is a highly regarded and professional clerk’s room which is able to assist you with your enquiries and as chambers continue to grow we are confident that our relationship with you does too. In this edition Georgina Nolan looks at the approach of the courts to claims for psychiatric injury from secondary victims in clinical negligence claims. Hylton Armstrong looks at Qualitative versus Quantitative Care & Material Contribution Causation in clinical negligence. Gareth Price and Abigail Telford offer a brief update in respect of Portal cases and their impact. All that is left for me to say is that on behalf of Parklane Plowden we wish you all a very merry Christmas and we look forward to a Happy 2016. Andy Gray, Clerking Director   <hr /> <img style="margin: 0px;border: 0px currentColor;width: 180px;height: 213px;line-height: 100%;text-decoration: none" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/535b4c59-87d2-43f3-b2d7-52423315fcf5.jpg" alt="" width="180" height="213" align="none" /> <a id="2" style="color: #007fff;font-weight: normal;text-decoration: underline" name="2"></a> 2. Hylton Armstrong takes a look at Qualitative vs. Quantitative case & material. A brief look at Reaney v (1) University Hospitals of North Staffordshire NHS Trust (2) Mid Staffordshire NHS Foundation Trusat [2015] EWCA Civ 1119 Background In 2008 the Claimant was diagnosed as suffering from transverse myelitis and became paralysed below the mid-thoracic level.  The Claimant’s required 7 hours of care per week, rising to 31.5 hours per week after the age of 75.  Apart from limited assistance from family members this would have been provided by the local authority.  With this level of care the Claimant could have led a mostly independent life.   During a subsequent extended period of hospitalisation the Claimant developed a number of grade 4 pressure sores with osteomyelitis, hip dislocation, serious contractures of the lower limbs, and increased lower limb spasticity.  The Claimant’s seating posture was permanently damaged and she was unable to use a standard wheelchair safely.  As a result the Claimant required 24/7 care.   The Issue The dispute was about causation and quantification.  More specifically, did the Defendants cause (i) all of the Claimant’s care needs resulting from the pressure sores or (ii) those needs less the needs that she would have had but for the negligence.      At Trial Foskett J thought this case was a ‘reflection of the principle that a tortfeasor must take his victim as he finds him’ and concluded the Defendant’s negligence made the Claimant’s position ‘…materially and significantly worse than it would have been but for that negligence.’  This led to a finding that the Claimant was entitled to full compensation of all her care, physiotherapy and accommodation costs (note: future care was assessed at £2,194,883.29).   Foskett J confirmed that if he had any doubts about causation in the but-for sense, he would have been inclined to find that the Defendants had “materially contributed” to the condition that had led to the need for 24/7 care.   The Appeal The Defendants argued the Judge should have awarded the Claimant the costs of meeting her needs but only to the extent that the needs were increased as a result of the negligence.    It was accepted to be common ground that if the Defendants’ negligence caused the Claimant to have care and other needs which were substantially of the same kind as her pre-existing needs, then the damage caused by the negligence was the additional needs.  On the other hand, if the needs caused by the negligence were qualitatively different, then those needs were caused in their entirety by the negligence.    The Court of Appeal found that the fact the Claimant’s quality of life is now markedly worse than it would have been but-for the negligence says nothing about whether the care that she now needs is qualitatively or quantitatively different from what she would have needed but for the negligence.  Here there was no evidence the Claimant now required specialist carers who have skills which were not possessed by the carers of the kind who would have satisfied her pre-existing needs.  It followed that the Judge’s finding that all of the Claimant’s care, physiotherapy, & accommodation etc. was caused by the Defendant’s negligence could not stand.  <a style="color: #007fff;font-weight: normal;text-decoration: underline" href="/uploads/documents/Hylton%20Armstrong-%20case%20note.pdf" target="_blank" rel="noopener noreferrer">To read the rest of the article please follow this link (the link will open a new tab)</a>   <hr /> <img style="margin: 0px;border: 0px currentColor;width: 180px;height: 213px;line-height: 100%;text-decoration: none" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/41b73222-41ac-49a1-b191-0b6c7ef1524c.jpg" alt="" width="180" height="213" align="none" /> <a id="3" style="color: #007fff;font-weight: normal;text-decoration: underline" name="3"></a>3.Georgina Nolan's article of "a tightening of the straitjacket" provides readers with an insight of secondary victim claims.  What is the approach of the courts to claims for psychiatric injury from secondary victims in clinical negligence claims? Georgina Nolan takes a look at some recent decisions.   Last December the High Court handed down its judgment in the case of Wild v Southend University Hospital NHS Foundation Trust [2014] EWHC 4053 (QB), a case concerning a father’s claim for injury following the stillborn birth of his son. The Defendant trust had admitted negligence in respect of the care of his unborn child and admitted that the child’s father had suffered psychiatric illness as a consequence of witnessing events unfold at the hospital as medics came to the realisation that his son had died.  Yet Mr Wild’s claim was dismissed on the basis that he failed to qualify as a secondary victim having neither witnessed the injury or endangerment of another nor having been sufficiently proximate in time and space to the negligent event which had happened in the weeks prior to the birth rather than at the time of the delivery.   In Wild the High Court considered the case of Tredget v Bexley Health Authority [1994] 5 Med LR 178. This concerned a Claimant father who did recover damages as a secondary victim having lost his new born child after he witnessed the baby being born. The court distinguished Tredget not only because in that case the child had been born alive but also because the negligence which inflicted the (ultimately fatal) injuries on the child had taken place during labour and in full sight of the father in the context of what was described by the court as ‘chaos’ and pandemonium’ in the delivery room.   Wild was the first time that the court had applied the case of Taylor v A’Novo [2013] EWCA Civ 194 in a clinical negligence context. Taylor had come before the Court of Appeal in 2013 and was a claim by a lady who had suffered severe post traumatic stress disorder having witnessed the sudden collapse and death of her mother following an injury that her mother had sustained at work three weeks previously. In Taylor the court held that there were two distinct events - the first was the accident and injury (caused by the employer’s negligence) and the second was the death. The court held that the relevant event was the accident and the Claimant did not have sufficient proximity to this so would not qualify as a secondary victim.  <a style="color: #007fff;font-weight: normal;text-decoration: underline" href="/uploads/documents/GN-Secondary%20victim%20claims%20Nov%202015.pdf" target="_blank" rel="noopener noreferrer">To read the rest of the article please follow this link (the link will open a new tab)</a> <hr /> <img style="margin: 0px;border: 0px currentColor;width: 180px;height: 213px;line-height: 100%;text-decoration: none" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/3b0ed6e1-97a0-470a-a86d-fba11202d7bb.jpg" alt="" width="180" height="213" align="none" />  <img style="margin: 0px;border: 0px currentColor;width: 180px;height: 213px;line-height: 100%;text-decoration: none" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/2022331b-d3ad-41c9-97c8-3299b6c4a113.jpg" alt="" width="180" height="213" align="none" /> <a id="4" style="color: #007fff;font-weight: normal;text-decoration: underline" name="4"></a>4. Gareth Price and Abigail Telford provide us with a portal update.     New website address for CUEpi, is www.askcue.co.uk Case Law SHAUN PAYNE v WILLIAM SCOTT CC (Birkenhead) (Deputy District Judge Smedley) 13/07/2015 - At disposal hearing, Claimant applied to remove matter from Portal; -As to costs, held that Claimant acted unreasonably in ‘electing’ to remove the matter from the Portal;  - Claimant argued that the matter was removed by decision of district judge at disposal hearing;  - Still held to have been ‘elected’ by the Claimant;  - Claimant restricted to Portal costs. SHAUKAT ALI MALAK v S NASIM CC (Watford) (District Judge Wood) 02/03/2015  - An admission of liability made by insurers in the Portal related solely to the subject-matter of that claim;  - It did not bind a claimant in a personal injury claim arising out of the same accident brought after exiting the portal; - Compare with earlier decision in Ullah v Jon E M GRATRIX v K FISHER CC (Altrincham) (District Judge Clegg) 24/06/2015   -Listed for contested Stage 3 hearing in respect of a child Claimant; - Claimant argued stage 3 only appropriate for a child claimant when damages agreed and sought allocation to fast track under Part 7; - Application successful; - Damages subsequently agreed prior to disposal hearing; - Defendant argued Claimant acted unreasonably in exiting portal and should be fixed to Portal costs; - Defendant unsuccessful. Matter was disputed, caused to exit by order of the court and Claimant acted reasonably - Compare with Payne v Scott   <hr /> <h2 style="margin: 0px 0px 10px;text-align: left;color: #000080;line-height: 100%;letter-spacing: normal;font-family: 'Helvetica Neue', Arial;font-size: 18px;font-weight: normal"><a id="5" style="color: #007fff;font-weight: normal;text-decoration: underline" name="5"></a>5. Forthcoming events </h2> With 2016 fast approaching, it is time to take a look at our upcoming events. We are offering Personal Injury and Clinical Negligence case law updates at three venues, Sheffield, Leeds and Newcastle. A Grandstand Employment conference in Leeds. Also a seminar on radicalisation safeguarding and the family courts, which will all take place in Leeds.  For further details of the seminars or to book a place on any of our seminars please follow this link- <a style="color: #007fff;font-weight: normal;text-decoration: underline" href="/seminars/">https://www.parklaneplowden.co.uk/seminars/</a> We hope to see you there! </td> </tr> </tbody> </table> </td> </tr> </tbody> </table> </td> </tr> </tbody> </table>

Employment Newsletter Autumn 2015

<table style="width: 100%" border="0" cellspacing="0" cellpadding="0"> <tbody> <tr> <td class="bodyContent" style="text-align: justify;color: #43404d;line-height: 150%;font-family: 'Helvetica Neue', Arial;font-size: 14px;border-collapse: collapse" colspan="3" valign="top"> <h1 class="null" style="margin: 0px 0px 10px;text-align: center;color: #000000;line-height: 100%;letter-spacing: 1px;padding-bottom: 0px;font-family: 'Helvetica Neue', Arial;font-size: 24px;font-weight: bold">Employment Newsletter Autumn 2015  </h1> </td> </tr> <tr> <td class="bodyContent" style="text-align: justify;color: #43404d;line-height: 150%;padding-top: 40px;padding-bottom: 20px;font-family: 'Helvetica Neue', Arial;font-size: 14px;border-collapse: collapse" colspan="3" valign="top"> <h2 style="margin: 0px 0px 10px;text-align: left;color: #000080;line-height: 100%;letter-spacing: normal;font-family: 'Helvetica Neue', Arial;font-size: 18px;font-weight: normal">In This Edition:</h2> <ol> <li><a style="color: #007fff;font-weight: normal;text-decoration: underline" href="https://us5.admin.mailchimp.com/campaigns/preview-content-html?id=798245#1" target="_self" rel="noopener">A Message from Employment Law specialist Dominic Bayne.</a></li> <li><a style="color: #007fff;font-weight: normal;text-decoration: underline" href="https://us5.admin.mailchimp.com/campaigns/preview-content-html?id=798245#Two" target="_self" rel="noopener">An article by Bryony Clayton in light of the "Hall v Chief Constable of West Yorkshire police" decision.</a></li> <li><a style="color: #007fff;font-weight: normal;text-decoration: underline" href="https://us5.admin.mailchimp.com/campaigns/preview-content-html?id=798245#Three" target="_self" rel="noopener">An Article by Claire Millns considering the decision of the "Tirkey v Chandhok Anor" case 2015.</a></li> <li><a style="color: #007fff;font-weight: normal;text-decoration: underline" href="https://us5.admin.mailchimp.com/campaigns/preview-content-html?id=798245#4." target="_self" rel="noopener">Nicola Twine's helpful guidance on Tupe's treatment of long term sick employees.</a></li> <li><a style="color: #007fff;font-weight: normal;text-decoration: underline" href="https://us5.admin.mailchimp.com/campaigns/preview-content-html?id=798245#5" target="_self" rel="noopener">An article By Dominic Bayne takes a brief look at the implications of the European decision in Tyco Integrated Services, which hit the headlines last month, concerning the application of the Working Time Directive to workers travelling to work.</a>  </li> </ol> <hr /> <h2 style="margin: 0px 0px 10px;text-align: left;color: #000080;line-height: 100%;letter-spacing: normal;font-family: 'Helvetica Neue', Arial;font-size: 18px;font-weight: normal"><a id="1" style="color: #007fff;font-weight: normal;text-decoration: underline" name="1"></a>A message from Employment Law specialist Dominic Bayne  </h2> <img style="margin: 0px;border: 0px currentColor;width: 180px;height: 213px;line-height: 100%;text-decoration: none" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/dcbd83e9-c1af-4506-83da-e55bc5015b81.jpg" alt="" width="180" height="213" align="none" />  Welcome to the Autumn edition of our Parklane Plowden employment e-newsletter. The nights are now longer than the days, our political leaders have returned from setting out their visions at their autumn conferences, and the minimum wage has just made its first faltering step towards becoming a ‘living wage’.  It must be October.    Since our last newsletter, the Court of Appeal has dismissed UNISON’s challenge to the tribunal fee regime, and the number of tribunal claims continues to be stubbornly low.  Indeed although overall numbers of claims are only a fraction of what they once were, the proportion of successful claims seems to have been largely unaffected; so to the extent that fees were intended to weed out unmeritorious claims, the baby and the bathwater seem to have been thrown out in equal measure.  But for those with an interest in effective access to justice,  some slightly encouraging noises are at last beginning to emanate from Westminster and Holyrood.  On 1st September 2015, the Scottish Government announced that it would be abolishing tribunal fees once it has the power to do so.   That should come with the passing of the Scotland Bill, currently going through parliament.  Meanwhile, south of the border, the government’s announcement in June that it intended to review the fee system by the end of the year has been followed by a very helpful House of Commons Briefing Paper which quietly contrasts the ministerial assurances that introducing fees would not stifle genuine claims, with the reality that practitioners have experienced.  If you have a quiet moment, it makes for some interesting reading.   <h3 style="margin: 0px 0px 10px;text-align: left;color: #000080;line-height: 100%;letter-spacing: normal;font-family: 'Helvetica Neue', Arial;font-size: 14px;font-weight: normal">In this e-newsletter:</h3> <a style="color: #007fff;font-weight: normal;text-decoration: underline" href="/barristers/bryony-clayton/" target="_blank" rel="noopener noreferrer">Bryony Clayton</a> considers Hall v Chief Constable of West Yorkshire Police and the mistakes that tribunals are making when considering discrimination ‘arising from’ disability <a style="color: #007fff;font-weight: normal;text-decoration: underline" href="/barristers/claire-millns/" target="_blank" rel="noopener noreferrer">Claire Millns</a> asks, in the light of Tirkey v Chandhok, whether the existing protection from race discrimination is wide enough to cover caste-based discrimination, despite the delay in implementing regulations to that effect. <a style="color: #007fff;font-weight: normal;text-decoration: underline" href="/barristers/nicola-twine/" target="_blank" rel="noopener noreferrer">Nicola Twine</a> explores the practical implications of BT Managed Services Ltd v Edwards, in which a permanently incapacitated employee was held not to be assigned to the transferring workforce. Finally, <a style="color: #007fff;font-weight: normal;text-decoration: underline" href="/barristers/dominic-bayne/" target="_blank" rel="noopener noreferrer">I</a> take a brief look at the implications of the European decision in Tyco Integrated Services, which hit the headlines last month, concerning the application of the Working Time Directive to workers travelling to work. We welcome feedback and any topics requests for future e-newsletters. Please feel free to tweet us <a style="color: #007fff;font-weight: normal;text-decoration: underline" href="https://twitter.com/ParklanePlowden" target="_blank" rel="noopener noreferrer">@parklaneplowden</a> or email us at <a style="color: #007fff;font-weight: normal;text-decoration: underline" href="mailto:events@parklaneplowden.co.uk?subject=PI%20Newsletter%20-%20Edition%205" target="_blank" rel="noopener noreferrer">events@parklaneplowden.co.uk</a>. <a style="color: #007fff;font-weight: normal;text-decoration: underline" href="/barristers/dominic-bayne/" target="_blank" rel="noopener noreferrer">Dominic Bayne</a> Employment Team <a style="color: #007fff;font-weight: normal;text-decoration: underline" href="mailto:Dominic.bayne@parklaneplowden.co.uk">Dominic.bayne@parklaneplowden.co.uk</a> September 2015   <hr /> <h2 style="margin: 0px 0px 10px;text-align: left;color: #000080;line-height: 100%;letter-spacing: normal;font-family: 'Helvetica Neue', Arial;font-size: 18px;font-weight: normal"><a id="Two" style="color: #007fff;font-weight: normal;text-decoration: underline" name="Two"></a> In light of the Employment Appeal Tribunal decision in Hall v Chief Constable of West Yorkshire Police UKEAT/0057/15/LA, has section 15 Equality Act 2010 solved the problem it was intended to address?  </h2> <img style="margin: 0px;border: 0px currentColor;width: 180px;height: 213px;line-height: 100%;text-decoration: none" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/45f391a5-db19-4b94-8bca-9a3a350eed10.jpg" alt="" width="180" height="213" align="none" /> In light of the Employment Appeal Tribunal decision in Hall v Chief Constable of West Yorkshire Police UKEAT/0057/15/LA, has section 15 Equality Act 2010 solved the problem it was intended to address? Section 15 of the Equality Act 2010 (‘EqA 2010’) provides that a person (A) discriminates against a disabled person (B) if A treats B unfavourably because of something arising in consequence of B's disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. There is a defence for an employer under subsection (2) which provides that subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability. The rationale behind section 15 is set out in the Explanatory Note. It is said that whilst the Disability Discrimination Act 1995 provided protection from disability-related discrimination, following the judgment of the House of the Lords in the case of London Borough of Lewisham v Malcolm [2008] UKHL 43, those provisions no longer provided the degree of protection from disability-related discrimination that is intended for disabled people. It will be remembered that the Court of Appeal decision in Clark v Novacold [1999] ICR 951 to the effect that there was no requirement to show a causal link between the reason for the treatment complained of and the disability was reversed in Malcolm: Lord Scott made clear in Malcolm that 'if the physical or mental condition that constitutes the disability has played no motivating part in the decision of the alleged discriminator to inflict on the disabled person the treatment complained of, the alleged discriminator's reason for that treatment cannot … relate to the disability' (para 29). Baroness Hale (concurring with the majority on this point) similarly held 'I agree with Lord Bingham that to establish liability for the statutory tort of discrimination against a disabled person, it is necessary to show that the alleged discriminator either knew or ought to have known of the disability (not, of course, that in law it amounted to a disability within the meaning of the Act)’. Section 15 is aimed at re-establishing the appropriate balance between enabling a disabled person to make out a case of experiencing detriment which arises because of his or her disability, and providing an opportunity for an employer or other person to defend the treatment.   <a style="color: #007fff;font-weight: normal;text-decoration: underline" href="/uploads/documents/1st%20article-%20Bryony%20Clayton%20house%20format.pdf" target="_blank" rel="noopener noreferrer">Please follow this link to read the full article (opens a new browser)</a>   <hr />   <h2 style="margin: 0px 0px 10px;text-align: left;color: #000080;line-height: 100%;letter-spacing: normal;font-family: 'Helvetica Neue', Arial;font-size: 18px;font-weight: normal"><a id="Three" style="color: #007fff;font-weight: normal;text-decoration: underline" name="Three"></a>  In light of the Employment Tribunal decision in Tirkey v Chandhok Anor [2015] ET 3400174/2013 are those subject to caste-based discrimination now protected?  </h2>    <img style="margin: 0px;border: 0px currentColor;width: 180px;height: 213px;line-height: 100%;text-decoration: none" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/64d78c44-8940-4348-b7d3-8e72d345c222.jpg" alt="" width="180" height="213" align="none" />   The concept of “caste” is complex. It is generally understood to refer to hereditary, endogamous (marrying within the group) communities differentiated according to different functions or roles in life. The concept is commonly associated with southern Asia, and particularly India. Caste discrimination is not expressly prohibited under UK equality legislation, although section 9 of the Equality Act 2010, as amended, requires the government to pass secondary legislation to make caste an aspect of race, thereby making caste discrimination a form of race discrimination. Ministers indicated in early 2013 that they expected that the issue of caste to be considered by government in the summer of 2015. However, news on secondary legislation has gone quiet. It remains to be seen whether the case of Tirkey will catch the government's eye and create any momentum for the change. In the meantime, does the case of Tirkey provide any protection  for those subject to caste discrimination? Background to the EAT decision In January 2014 the case of Tirkey came before Langstaff J, President of the EAT, on a preliminary issue. Mr and Mrs Chandhok employed Ms Tirkey, a worker from India, as a nanny. Her caste is the Adivasi, which is known as a "servant caste." She claimed that the Chandhoks treated her badly and in a demeaning manner, partly because she was from a lower caste. Ms Tirkey is a Christian. The Chandhoks appealed against the decision of the Employment Tribunal, arguing that part of the claim should be struck out because caste is not a protected characteristic and did not fall within the definition of “race” in section 9 of the Equality Act 2010. The case is significant as it is the first time an appellate court has been asked to consider the issue of caste based discrimination. The EAT rejected the Chandhoks' appeal, finding that the definition of "race" in the Equality Act 2010, which includes "ethnic origin", is wide enough to encompass caste.   <a style="color: #007fff;font-weight: normal;text-decoration: underline" href="/uploads/documents/2nd%20article-%20Claire%20Millns..pdf" target="_blank" rel="noopener noreferrer"> </a><a style="color: #007fff;font-weight: normal;text-decoration: underline" href="/uploads/documents/2nd%20article-%20Claire%20Millns%20house%20format.pdf" target="_blank" rel="noopener noreferrer">To read the full article please follow this link (opens in a new browser)</a> <hr /> <h2 style="margin: 0px 0px 10px;text-align: left;color: #000080;line-height: 100%;letter-spacing: normal;font-family: 'Helvetica Neue', Arial;font-size: 18px;font-weight: normal"><a id="4." style="color: #007fff;font-weight: normal;text-decoration: underline" name="4."></a> Helpful guidance on TUPE's treatment of long-term sick employees:</h2> <img style="margin: 0px;border: 0px currentColor;width: 180px;height: 213px;line-height: 100%;text-decoration: none" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/787ebcd6-256a-44f7-a11c-f1b892851192.jpg" alt="" width="180" height="213" align="none" /> BT Managed Services Ltd v Edwards & Anor  On most business acquisition disposals or changes of service provider there is there is a question of what happens to the dedicated workforce. The Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’) can be a minefield for employers and give rise to expensive as well as explosive consequences. Inheriting employees on long term sick can be a hazard of a TUPE transfer   The EAT in BT Managed Services Ltd v Edwards & Anor recently considered whether an employee absent from work on long term sick leave, and regarded as permanently incapacitated, should transfer under TUPE with the rest of his colleagues when the service he was assigned to transferred to the new contractor?   The case concerned a ‘Service Provision Change’ (SPC) under reg. 3(1)(b). In simple terms when a SPC change occurs the ‘organised grouping of employees’ carrying out the work on behalf of the client will generally transfer to the new contractor under TUPE. That ‘organised grouping’ can be limited to a single employee (reg. 2(1)) but the carrying out of activities on behalf of the client must be the principle purpose of that organised grouping (reg. 3(1)(b)) in order to transfer.   Background Mr Edwards was employed by British Telecommunications Managed Services Ltd (‘BTMS’) as a Field Operations Engineer. He originally worked for the mobile phone provider, Orange, but in 2009 his employment transferred to BTMS on outsourcing of the domestic network contract (‘DNO’). Mr Edwards had by this time been on long term sick for some time, due to heart condition. Attempts were made to find him less strenuous work but he was deemed permanently unfit and in 2010 was put on BTMS’s PHI scheme. He remained ‘on the books’. <a style="color: #007fff;font-weight: normal;text-decoration: underline" href="/uploads/documents/3rd%20article-%20Nicola%20Twine%20house%20format.pdf" target="_blank" rel="noopener noreferrer">To read the rest of the  article please follow this link (opens a new browser)</a>  <hr /> <h2 style="margin: 0px 0px 10px;text-align: left;color: #000080;line-height: 100%;letter-spacing: normal;font-family: 'Helvetica Neue', Arial;font-size: 18px;font-weight: normal"><a id="5" style="color: #007fff;font-weight: normal;text-decoration: underline" name="5"></a> In Federación de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL the CJEU held that the time taken by technicians to travel to and from their first and last appointments of the day must be regarded as ‘working time’.  What are the domestic implications of that decision?</h2> <img style="margin: 0px;border: 0px currentColor;width: 180px;height: 213px;line-height: 100%;text-decoration: none" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/dcbd83e9-c1af-4506-83da-e55bc5015b81.jpg" alt="" width="180" height="213" align="none" /> Tyco is in the business of installing and maintaining security systems.  Its technicians set off each morning from their homes in company vans to the first appointment on a list sent to them the night before.  They return home once the last of those appointments has been completed.  The geographical areas that they cover are such that their initial and final journeys can be as long as 100km and take as much as 3 hours.  Whilst Tyco regarded travelling between appointment as working time within the meaning of the Working Time Directive, they treated the journeys to and from the first and last appointments of the day differently.  The technicians argued that Tyco was wrong to exclude those journeys, and that they should be regarded as at work from the moment they left home.  The CJEU agreed, sweeping aside the objections of the UK and Spanish governments in the process. Judging from the newspaper headlines the next day, you would have been forgiven for thinking that the judgment was a victory for Britain’s low paid care workers, and other iterant employees, who should now be due a pay rise; but is the judgment really as wide ranging as that; and what, if any, effect does it have on the way the national minimum wage is calculated? The CJEU Decision The Court reminded itself that the definition of ‘working time’ at Article 2(1) of the directive has 3 elements to it: (1) the worker must be carrying out his duties, (2) they must be at their employer’s disposal, and (3) they must be working.  It had little difficulty with the first of those elements.  ‘Carrying out duties’ did not just mean providing technical services to customers but included the necessary ancillary tasks as well: just as travelling between appointments was part of the technician’s duties, so was travelling to and from the first and last.  As to the second element, the Court noted that the technicians had a contractual obligation to attend the first and last appointments, which could be cancelled or changed by the employer at any time, and that during the travel time employees were not at liberty to use their time freely.  It followed that they were at their employer’s disposal.  <a style="color: #007fff;font-weight: normal;text-decoration: underline" href="/uploads/documents/4th%20article-%20Dominic%20Bayne%20house%20format.pdf" target="_blank" rel="noopener noreferrer">To read the rest of the article please follow this link (opens a new browser) </a>  </td> </tr> </tbody> </table>

Employment Newsletter Spring 2015

<h4 style="color: #000080;font-family: 'Helvetica Neue', Arial;font-size: 18px;font-weight: normal;line-height: 18px;margin: 0px 0px 10px">In This Edition:</h4> <ol> <li><a href="#one" target="_self" rel="noopener">A Message from Seamus Sweeney</a></li> <li><a href="#two">Article: Dismissals involving dishonesty: dealing with the “Robin Hood” employee who suggests that they were subjectively honest</a></li> <li><a href="#three">Article: When can an employer claim to be unaware of an employee’s disability?</a></li> <li><a href="#four">Article: The Future of Employment Tribunals</a></li> </ol>    <a name="one"></a> 1. A Message from Seamus Sweeney <h2 style="color: #000080;font-family: 'Helvetica Neue', Arial;font-size: 18px;font-weight: normal;line-height: 18px;margin: 0px 0px 10px"> </h2> <img style="height: 213px;line-height: 14px;color: #43404d;font-family: 'Helvetica Neue', Arial;font-size: 14px;text-align: justify;width: 180px;margin: 0px" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/d1dc353a-5123-43a9-9e4f-9fa4f9f4aa41.jpg" alt="" width="180" height="213" align="none" data-cke-saved-src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/d1dc353a-5123-43a9-9e4f-9fa4f9f4aa41.jpg" /> <h2 style="color: #000080;font-family: 'Helvetica Neue', Arial;font-size: 18px;font-weight: normal;line-height: 18px;margin: 0px 0px 10px">The clocks have gone forward, the daffodils are in full bloom and spring is definitely in the air. What better time, then, to feature a case involving Easter eggs: see <a href="/barristers/Richard-Ryan/" target="_blank" rel="noopener noreferrer" data-cke-saved-href="https://www.parklaneplowden.co.uk/barristers/Richard-Ryan/">Richard Ryan</a>’s “eggcellent” article on the case of Gondalia v Tesco Stores Ltd.</h2> <a href="/barristers/adrian-maitra/" target="_blank" rel="noopener noreferrer" data-cke-saved-href="https://www.parklaneplowden.co.uk/barristers/adrian-maitra/">Adrian Maitra </a>highlights the case of Donelian v Liberata UK Ltd, reminding us of the potential pitfalls for employers who take action in respect of absent/sick employees without making reasonable attempts to find out if they are disabled. Finally, only weeks away from a general election, <a href="/barristers/catherine-souter/" target="_blank" rel="noopener noreferrer" data-cke-saved-href="https://www.parklaneplowden.co.uk/barristers/catherine-souter/">Catherine Souter </a>rounds off with a look at what the future holds for employment tribunals. Whichever political party (or combination) assumes control of the country in May, all employment lawyers will want to know what, if any changes they plan to make to the current fees system. The decline in the number of cases is too dramatic to be ignored. We long for a return to the days when judges had work to fill their days. After all, we have seen what some get up to when they have time on their hands and access to the internet. There are differing views as to whether we have an ‘access to justice’ problem on our hands. In September 2014 the Shadow Business Secretary, Chuka Umunna, told the TUC Congress that tribunal fees were “locking people out of the justice they are entitled to”. He went as far as to say that Labour would scrap the current system.  It seems that Labour recognises the access to justice argument. But watch this space. A cynic might think that irrespective of who wins the election, the most that will happen is a reduction in the level of fees, whatever might have been said about them pre-election. All the political parties want less, not more, litigation. Honestly, they treat us like kids not proper grown-ups: <img style="height: 261px;line-height: 14px;width: 236px;margin: 0px" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/d4059dd1-cb4b-4cf0-aa89-ee8a9183f3d2.jpg" alt="" width="236" height="261" align="none" data-cke-saved-src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/d4059dd1-cb4b-4cf0-aa89-ee8a9183f3d2.jpg" /> I hope everyone enjoys the Newsletter and that you have a nice Easter break. As always, we welcome any comments or feedback on the e-Newsletter so feel free to email us at <a href="mailto:events@parklaneplowden.co.uk" data-cke-saved-href="mailto:events@parklaneplowden.co.uk">events@parklaneplowden.co.uk</a> or tweet us at @parklaneplowden. <a href="/barristers/seamus-sweeney/" target="_blank" rel="noopener noreferrer" data-cke-saved-href="https://www.parklaneplowden.co.uk/barristers/seamus-sweeney/">Seamus Sweeney</a> Head of the Employment  Team <a href="mailto:seamus.sweeney@parklaneplowden.co.uk" target="_blank" rel="noopener noreferrer" data-cke-saved-href="mailto:seamus.sweeney@parklaneplowden.co.uk">seamus.sweeney@parklaneplowden.co.uk</a> 30th March 2015 <hr style="color: #43404d;font-family: 'Helvetica Neue', Arial;font-size: 14px;line-height: 21px;text-align: justify" /> <h2 style="color: #000080;font-family: 'Helvetica Neue', Arial;font-size: 18px;font-weight: normal;line-height: 18px;margin: 0px 0px 10px"><a name="two"></a></h2> <h2 style="color: #000080;font-family: 'Helvetica Neue', Arial;font-size: 18px;font-weight: normal;line-height: 18px;margin: 0px 0px 10px">2. Dismissals involving dishonesty: dealing with the “Robin Hood” employee who suggests that they were subjectively honest</h2> <a style="font-family: 'Helvetica Neue', Arial;font-size: 14px;line-height: 21px;text-align: justify" href="/barristers/Richard-Ryan/" target="_blank" rel="noopener noreferrer" data-cke-saved-href="https://www.parklaneplowden.co.uk/barristers/Richard-Ryan/">By Richard Ryan</a> <img style="height: 213px;line-height: 14px;width: 180px;margin: 0px" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/88562065-f4ff-4d63-8eae-902deb1c1bae.jpg" alt="" width="180" height="213" align="none" data-cke-saved-src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/88562065-f4ff-4d63-8eae-902deb1c1bae.jpg" /> In the recent case of Gondalia v Tesco Stores Ltd [2015] UKEAT/0320/14/JOJ the Employment Appeal Tribunal (EAT) has held that the concept of subjective dishonesty did not mean that an Employment Judge was bound to consider how dishonesty is determined in a criminal context, which is set out in the leading ‘theft’ case of R v Ghosh. Therefore, the approach taken in John Lewis plc v Coyne [2001] IRLR 139 which encouraged the application of the Ghosh test to employment cases is now in doubt and tribunals will, perhaps unsurprisingly, be applying the ‘Burchell test’ (Burchell v BHS [1978] IRLR 379) without embellishment. So where does the heroic outlaw Robin Hood come into all of this? Well, the facts of the Gondalia case will need to be considered first.  <a href="/uploads/documents/RR%20March%202015%20Employment%20Newsletter.pdf" target="_blank" rel="noopener noreferrer">Follow this link to read the rest of the article (opens a new internet browser)</a> <hr style="color: #43404d;font-family: 'Helvetica Neue', Arial;font-size: 14px;line-height: 21px;text-align: justify" /> <a name="three"></a> 3. When can an employer claim to be unaware of an employee’s disability?  <a style="font-family: 'Helvetica Neue', Arial;font-size: 14px;line-height: 21px;text-align: justify" href="/barristers/adrian-maitra/" target="_blank" rel="noopener noreferrer" data-cke-saved-href="https://www.parklaneplowden.co.uk/barristers/adrian-maitra/">by Adrian Maitra</a>   <img style="height: 213px;line-height: 14px;color: #43404d;font-family: 'Helvetica Neue', Arial;font-size: 14px;text-align: justify;width: 180px;margin: 0px" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/8149dbda-97cb-461f-acac-c5bbdc241e78.jpg" alt="" width="180" height="213" align="none" data-cke-saved-src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/8149dbda-97cb-461f-acac-c5bbdc241e78.jpg" /> In the recent case of Donelien v Liberata UK Ltd UK EAT/0297/14, the EAT considered the extent to which an employer should be deemed to have constructive knowledge of an individual’s disability.   Before we consider the facts of Donelien, it is worth revisiting the legal principles in play. Under the Equality Act 2010 (EqA), for an employer to be answerable for a claim of disability discrimination, it must know of the relevant facts that constitute an individual’s disability, within the meaning of s.6. However, the wording of s.15(2) (in the context of discrimination arising from disability) and Schedule 8, Paragraph 20 of the EqA (in the context of the duty to make reasonable adjustments), makes it clear that an employer cannot be liable where it ‘could not reasonably be expected to know' of an individual’s disability, thus extending the concept of 'actual' knowledge and requires the employment tribunal to determine whether the employer’s stated claim of ignorance of an employee's disability is a reasonable one.   This requires an employment tribunal to evaluate the steps taken by the employer to avail itself of the true position and the level (and quality) of its enquiries. The EHRC Employment Code's guidance states, the employer ‘must do all it can reasonably be expected to do to find out if a person has a disability’ (paragraph 5.15), and this will inevitably require the employment tribunal to consider the extent to which the employer was entitled to rely upon any medical (or other) advice received. Notably, the Code also reminds us that when a tribunal is assessing the employer's knowledge, this should extend to any “agent or employee (such as an occupational health adviser or a HR officer) who, in that capacity, of a worker’s or applicant’s or potential applicant’s disability.” (paragraph 5.17). Consequently, the risks for an employer – when seeking to deploy this defence – are potentially high.   The tribunal and the EAT in Donelien considered this question (under the previous legislation). <a href="/uploads/documents/AM%20March%202015%20Employment%20Article.pdf" target="_blank" rel="noopener noreferrer">Follow this link to read the rest of the cases (opens a new internet browser)</a> <hr style="color: #43404d;font-family: 'Helvetica Neue', Arial;font-size: 14px;line-height: 21px;text-align: justify" /> <h2 style="color: #000080;font-family: 'Helvetica Neue', Arial;font-size: 18px;font-weight: normal;line-height: 18px;margin: 0px 0px 10px"><a name="four"></a></h2> <h2 style="color: #000080;font-family: 'Helvetica Neue', Arial;font-size: 18px;font-weight: normal;line-height: 18px;margin: 0px 0px 10px">4. The Future of Employment Tribunals</h2> <a style="font-family: 'Helvetica Neue', Arial;font-size: 14px;line-height: 21px;text-align: justify" href="/barristers/catherine-souter/" target="_blank" rel="noopener noreferrer" data-cke-saved-href="https://www.parklaneplowden.co.uk/barristers/catherine-souter/">by Catherine Souter</a> <img style="height: 213px;line-height: 14px;color: #43404d;font-family: 'Helvetica Neue', Arial;font-size: 14px;text-align: justify;width: 180px;margin: 0px" src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/65c0c82a-777d-4dc3-8bb9-604063e28266.jpg" alt="" width="180" height="213" align="none" data-cke-saved-src="https://gallery.mailchimp.com/144b218d797e92c5750fd17ed/images/65c0c82a-777d-4dc3-8bb9-604063e28266.jpg" /> With 2015 well underway and the general election campaigns in full swing, the future of employment law and employment tribunals are both hot topics of discussion. What is in store for employees, employers and employment lawyers? This article will consider the introduction of employment tribunal fees, the mandatory requirement to go through early conciliation before being able to lodge a claim and alternatives to the ‘traditional’ tribunal model. <a href="/uploads/documents/CAS%20march%202015%20Employment%20newsletter.pdf" target="_blank" rel="noopener noreferrer">Follow this link to read the rest of the article (opens a new internet browser)</a>

Parklane Plowden Personal Injury & Clinical Negligence Newsletter 2015

<h4>QUARTERLY UPDATE – NO. 1 of 2015</h4>   <h5 class="full">Costs, fees and budgeting</h5> Welcome to the first quarterly Park Lane Plowden PICN e-newsletter of 2015. The hot topics of the past few years are likely to further dominate legal discussion in 2015. Notification of the likely increases in issue fees has been met with fears that access to justice for the most severely injured and/or least able to pay has arrived. The stated reasoning behind QOCS and increase to general damages is thought unlikely to have any impact on that. One suggested step to reduce the cost of civil litigation is to abolish cost budgeting. We expect all litigants would favour that. <h5 class="full">In this e-newsletter</h5> <a title="Paul Sangha" href="/barristers/Paul-Sangha/" target="_blank" rel="noopener noreferrer">Paul Sangha</a> provides our quarterly case law update. Of note on QOCS in Landau an Appeal hearing was in relation to the matter that is the subject of the proceedings even when a further post QOCS/ pre-appeal CFA was entered into. <a title="Georgina Nolan" href="/barristers/georgina-nolan/" target="_blank" rel="noopener noreferrer">Georgina Nolan</a> examines the tensions within recent authority relating to secondary nervous shock victims and the straightjacket being applied by Alcock. We welcome feedback and any topics requests for future e-newsletters. Please feel free to tweet us <a href="https://twitter.com/ParklanePlowden" target="_blank" rel="noopener noreferrer" data-cke-saved-href="https://twitter.com/ParklanePlowden">@parklaneplowden</a> or email us at <a href="mailto:events@parklaneplowden.co.uk?subject=PI%20Newsletter%20-%20Edition%205" target="_blank" rel="noopener noreferrer" data-cke-saved-href="mailto:events@parklaneplowden.co.uk?subject=PI%20Newsletter%20-%20Edition%205">events@parklaneplowden.co.uk</a>. <a title="James Murphy" href="/barristers/james-murphy/" target="_blank" rel="noopener noreferrer">James S Murphy</a> Head of the Personal Injury & Clinical Negligence Team <a href="mailto:James.murphy@parklaneplowden.co.uk">James.murphy@parklaneplowden.co.uk</a> 2nd February 2015 <h4 class="full"><a name="GN"></a>An illogical approach? Georgina Nolan considers the law in relation to claims for psychiatric injury by secondary victims in light of the decision in wild v southend university hospital NHS foundation trust [2014] ewhc 4053 (qb)</h4> Claims for psychiatric injury have been subject to considerable judicial scrutiny over the years. In the absence of legislative reform the distinction between primary and secondary victims and the restrictive approach set down by the control mechanisms identified in Alcock v Chief Constable of South Yorkshire  [1992] 1 A.C. 310 continues to trouble the courts and preclude often the most deserving claimants from recovering damages. In Alcock the House of Lords distinguished between two broad categories of claimant as far as claims for psychiatric injury were concerned: he who suffered psychiatric injury having been either physically endangered or injured (the ‘primary victim’); and he who was no more than the unwilling witness of injury caused to others’ (the ‘secondary victim’). The court identified “control mechanisms” designed to limit the circumstances in which secondary victims might recover damages for psychological injury. It was essential for such a claimant to demonstrate; i) that it was reasonably foreseeable that a person of ordinary fortitude would suffer psychiatric injury in such circumstances (ii) that he had a close tie of love and affection to the immediate victim; (iii) that there was closeness in time and space to the incident or to its immediate aftermath; (iv) that he had suffered 'nervous shock', ie his illness had been sustained as a consequence of the sudden appreciation by sight or sound of a horrifying event; and (v) that his injury amounted to a recognisable psychiatric illness. Last December the High Court handed down its judgment in the case of Wild v Southend University Hospital NHS Trust Foundation Trust [2014] EWHC 4053 (QB). This concerned a father’s claim for psychiatric illness caused by witnessing medical professionals determine that his baby had died in utero. The claimants Mr and Mrs Wild had been expecting their first child. Their antenatal care had been managed by the defendant’s hospital .On the baby’s due date Mrs Wild experienced a show of blood and attended hospital. It was discovered that her baby had died in the womb. After returning home for the night Mr and Mrs Wild returned the following morning to deliver their stillborn son. The defendant admitted negligence and it was admitted that but for their failure to record the baby’s growth properly at ante natal appointments labour would have been induced and the baby born alive. The defendant further admitted liability for nervous shock in respect of Mrs Wild and settled her claim. Mr Wild’s claim as a secondary victim was advanced on the basis that the realisation that his son was dead was a shocking event which caused him to suffer psychiatric injury. It was accepted both that he had suffered psychiatric injury as a consequence of the events at the hospital and that such injury was reasonably foreseeable in the circumstances. But the defendant argued that there was no primary victim in this case (the foetus as a matter of law never having become ‘a person’) and that Mr Wild could not be a secondary victim because he had not witnessed the injury or endangerment of another and there was insufficient proximity between Mr Wild in both time and space to the event which constituted negligence. The court found for the defendant accepting that the realisation for Mr Wild that his baby had died though shocking enough to have foreseeably caused him psychiatric illness could not entitle him to recovery of damages as a secondary victim. Although he had witnessed the discovery by medical professionals that his baby had died in the womb and the consequence of the defendant’s negligence he had at no time witnessed horrifying events leading to death or serious injury.  As such the control mechanisms set down in Alcock precluded him from establishing a claim. The decision in Wild may on the face of it appear difficult to reconcile with that of Walters v North Glamorgan NHS Trust [2002] EWHC 321 (QB) another High Court decision in which the defendant hospital admitted negligence. In this case the claimant suffered a pathological grief reaction when her ten month old son died from liver failure as a consequence of the defendant’s negligence in failing to diagnose his condition. It was agreed by the experts that the claimant’s pathological grief reaction had occurred as a consequence of her having to witness the distressing circumstances of her son’s death. In the days before his death her son suffered an epileptic fit lasting an hour. The claimant was informed that it was unlikely that he would have suffered any serious damage as a consequence of the fit. Yet CAT scans subsequently carried out on the child indicated that he had suffered severe brain damage and he was put on a life support machine. Shortly thereafter the family were advised that the brain damage was so severe he would never recover and the decision was taken to turn off the life support machine. The court found that although the claimant was not a primary victim she could be a secondary victim as the period from when the fit started (thirty six hours prior to her son’s death) to when the decision was made to turn off the life support machine was as a matter of law a horrifying event which had caused her pathological grief reaction.  In the case of Wild Judge Michael Kent Q.C. distinguished that of Walters and  noted that the case before him was in fact materially different as it was based on an ‘event’ which started with the realisation that Mr Wild’s son had already died. This was in contrast to Walters where the primary victim’s injury was first caused when he suffered the fit.  Judge Kent Q.C. commented ‘the authorities have driven me to conclude with reluctance that Mr Wild cannot on the facts succeed in his claim for damages which must therefore be dismissed. It would be difficult to argue that this is a logical outcome but, as Lord Oliver said in Alcock in relation to the submission that a visit to the mortuary several hours after the tragedy should be treated as part of the immediate aftermath: ‘To extend the notion of proximity in cases of immediately created nervous shock to this more elongated and to some extent retrospective process may seem a logical analogical development. But...the law in this area is not wholly logical.” The outcome of Wild may seem unfair and the comments made by Judge Michael Kent Q.C. echo similar frustration expressed by many of his judicial colleagues in the years since Alcock. Yet despite repeated criticism of the unfairness the restrictive framework in Alcock can create and regular calls for reform the courts’ hands remain tied. <a title="Georgina Nolan" href="/barristers/georgina-nolan/" target="_blank" rel="noopener noreferrer">Georgina Nolan</a> February 2015   <h4 class="full"><a name="PS"></a>Caselaw Update September 2014 - December 2014</h4> <h5 class="full">Road Traffic Accidents</h5> Landau v (1) The Big Bus Company Limited & (2) Pawel Zeital [2014] EWCA Civ 1102, 31st July 2014 C, on a motor scooter, sustained a serious injury to a leg when his scooter became trapped between D1’s tourist bus and D2’s car, when proceeding forwards from being stationary at traffic lights. Foskett J’s dismissed the claim on the basis that: the C had been in both of the Ds’ blind spots; that the Ds had taken all reasonable care when proceeding from the traffic lights; and that the Ds were entitled to assume that the C would not seek to pass between the vehicles. Appeal to Court of Appeal on Foskett J’s findings of fact not allowed. CoA re-emphasised the “well-recognised reluctance of appellate courts to interfere with findings of primary fact”. CoA followed guidance given by the SC in Henderson v Foxworth Investments Limited [2014] UKSC 41 that an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that the decision cannot reasonably be explained or justified. Afouzar v First Centre West Buses Limited [2014] EWHC 3426 (QB), 23rd October 2014 C, a pedestrian, suffered various serious injuries, including a head injury, when he ran into the path of a bus. The claim was dismissed. Two interesting conclusions of HHF Coe QC were: (1) that ignoring the “red man” at a pedestrian crossing is not in itself negligent, but did at least serve as a warning; and (2) the bus driver was not negligent for failing to apply the emergency brake, as it may have given rise to a real risk of serious injury to the passengers.   <h5 class="full">Asbestosis</h5> McDonald (Deceased) (Represented by Mrs Edna McDonald) v National Grid Transmissions Plc [2014] UKSC 53, 22nd October 2014 The C contended that Mr McDonald had been exposed to asbestos during his employment in which he visited power stations and loaded ash. He had witnessed other mixing and applying asbestos lagging. The C against the power stations was brought pursuant to reg 2(a) Asbestos Industry Regulations 1931 and s.47(1) Factories Act 1937, which placed duties on those operating factory premises. At first instance, only the claim under the 1931 Regulations succeeded. On appeal by both sides, the SC dismissed both appeals. The SC gave a broad and purposive interpretation to reg 2(a) and held that the provisions applied to all factories (not just those in the asbestos industry) and applied to all mixing by hand.  Professor Carl Heneghan (administrator of the estate of Mr James Heneghan, deceased) v Manchester Dry Docks & 5 Ors [2014] EWHC 4190 (QB), 11th December 2014 This was a claim regarding asbestos-induced lung cancer brought under the Law Reform (Miscellaneous Provisions) Act 1984 and the Fatal Accidents Act 1976. The C contended that the deceased was exposed to asbestos fibres during his employment with the 6 Ds. Quantum was agreed in the gross sum of £175,000, with each of the Ds having between 2.5-12% liability, with a total of 35.2%. C argued that the Fairchild v Glenhaven Funeral Services [2003] 1 AC 32 exception (concerning mesothelioma) did not apply in this asbestos-induced lung cancer claim, with the effect that C was not limited (under the apportionment principles in Barker v Corus UK Ltd [2006] 2 AC 572) to recovering 35.2% of the agreed £175,000. The C’s argument was rejected. The C’s damages were limited to 32.5% as against the Ds. <h5 class="full"> Industrial Deafness</h5> Howard Platt v BRB (Residuary) Ltd [2014] EWCA Civ 1401, 31st October 2014 C’s claim was for damage to his hearing, which he alleged was sustained during the course of his employment in a noisy environment between 1953-1988. Although it was not until 2011 that he was expressly told that his hearing loss was noise induced, he had sought medical attention between 1982-2011. In 1997, the C had been referred to a specialist ENT Registrar, who had asked the C whether he had been employed in a noisy work environment. The C confirmed that he had been, but he did not ask whether his hearing loss was noise induced and did not volunteer the information. The D contended that the claim was statute-barred under the Limitation Act 1980. At first instance, HHJ Halbert held that it was not reasonable to have expected the C to specifically ask about the cause of his hearing loss in 1997. On the D’s appeal to the CoA, the D’s contentions succeeded and it was held that it would have been reasonable for the C to have asked his ENT doctor what the cause of his hearing loss was and so he had constructive knowledge. Judgment was given for the D on its limitation defence. <h5 class="full"> Psychiatric Illness</h5> Yapp v Foreign & Commonwealth Office [2014] EWCA Civ 1512, 21st November 2014 At first instance, the C succeeded in his claim for damages for a depressive illness as a result of being withdrawn from his post as the High Commissioner in Belize, which it was held was a breach of contract and in breach of the common law duty of care. The D’s appeal to the CoA was successful. In the CoA’s analysis, the claim for damages for the depressive illness should have been disallowed on the basis that that it was not reasonably foreseeable to found a claim for breach of the common law duty of care (The Wagon Mound No. 2 applied) and also too remote a loss to be recoverable as a breach of contract (The Heron II applied).   <h5 class="full">Future loss of earnings</h5> John Billett v Ministry of Defence [2014] EWHC 3060 (QB), 5th September 2014 Edis J considered the C’s compensation arising out of a claim in which liability was agreed for injuries and losses sustained due to a non-freezing cold injury, which he suffered when engaging in exercises in cold weather. One element of the claim was future loss of earnings and the Judge had to consider the approach to assessing that, given his findings that the C would have left the army in the absence of his injury, but also that he would have potential difficulties as a result of his physical impairment in finding alternative work. Edis J details some guiding principles on the use of reductions factors in the Ogden tables, including the option for Courts to depart from a rigid approach and, as in this case, use a mix of the figures in the tables for disabled and non-disabled in line with the particular nature of the Claimant’s difficulties. Paul Tate (a protected party, by his Litigation Friend, The Official Solicitor) v Ryder Holdings Ltd & Aor [2014] EWHC 4256 (QB), 16th December 2014 The C, aged 11 years old at date of injury, suffered a severe brain injury when he was knocked down by a bus. The C’s childhood had been impoverished. He had a poor attendance record at school and his special educational needs assessment showed that he had significant learning difficulties. Kenneth Parker J assessed the C’s future loss of earnings claim in the usual way, but a one-third deduction was applied given the C’s vulnerabilities.   <h5 class="full"> Travel Law</h5> Lougheed v On the Beach Limited [2014] EWCA Civ 1538, 27th November 2014 C suffered personal injury when she slipped on some water on stairs at a hotel in Spain. She was successful in her claim at first instance which was brought under the Package Travel, Package Holidays and Package Tours Regulations 1992. The CoA allowed an appeal on two grounds by the D and dismissed the claims. In the first ground of appeal, the CoA reiterated that the relevant standard of care that had to be met was the locally recognised standard. “[A]n Englishman does not travel abroad in a cocoon” remarked Tomlinson LJ. The CoA emphasised that the onus was on a C to adduce evidence (not necessarily expert evidence) of the local standards having regard to establishments of a similar size and type. In the second ground of appeal, the CoA considered the application of Ward v Tesco [1976] 1 All ER 219 to the holiday accident. It was held that the index claim was not an appropriate case for the application of the principle in Ward v Tesco, as there was no finding that the presence of a hazard was more likely on the hotel stairs. <h5 class="full"> Civil Procedure</h5> Altomart Ltd v Salford Estates (No. 2) Ltd [2014] EWCA Civ 1408, 29th October 2014 This case concerned a failure by Altomart Ltd to file a Respondent’s Notice under CPR 52 within the 14-day time limit, following advice from Counsel regarding prospects. A further Advice was sought from alternative Counsel, who gave a more favourable opinion on prospects and, ultimately, a Respondent’s Notice was filed some 36 days late. Altomart Ltd sought an extension of time in which to file the Notice. The CoA considered the Mitchell principles, as expounded in Denton and granted Altomart Ltd’s application. The CoA considered that, even though there was no good reason for the delay, there was no reason to think that Salford Estates (No. 2) Ltd would suffer any prejudice if the application was granted and the appeal was unlikely to be heard for some period of time in any event. The Lord Chancellor v Taylor Willcocks Solicitors & Ors [2014] EWHC 3664 (QB), 7th November 2014 This was an appeal by the Lord Chancellor (successor to the Legal Services Commission) from a decision of Master Leslie refusing to grant a request for an extension of time to serve particulars of claim. The appeal was dismissed by Globe J, who held the decision of the Master was one that he was entitled to reach. It was within the generous ambit within which a reasonable disagreement is possible. It was a considered decision applying the Mitchell guidance correctly. It stood up to scrutiny even when studied alongside the later, amplified Denton guidance.   <h5 class="full">Costs</h5> Martin Coward v (1) Phaestos Limited, (2) Mindimaxnox LLP, (3) Ikos Cif Limited & (4) Ikos Asset Management Ltd [2014] EWCA Civ 1256, 2nd October 2014 At the conclusion of an intellectual property dispute in the Chancery Division of the High Court, the largely unsuccessful C, sought to avoid the usual costs order against an unsuccessful party on the basis of the D’s rejection of a Calderbank Offer that offered the D all that they substantially achieved at Trial. At first instance, the C was unsuccessful in arguing for an Order pursuant to CPR 44 that the D should be liable for the costs incurred by the C since the date of the offer, i.e. a broadly similar approach to that under CPR 36. The C’s appeal to the CoA was unsuccessful. The CoA again confirmed that CPR 36 was a self-contained code and it would be contrary to the express terms of CPR 44 to read across into it a rigid approach for a Calderbank Offer drawn by analogy from CPR 36. Landau v (1) The Big Bus Company Limited & (2) Pawel Zeital, Senior Court Costs Office, Case No. 1403806, 31st October 2014 For facts, see note of CoA’s initial judgment in July 2014 in the Road Traffic Accidents sub-section of this article. The initial claim and resulting Trial were pursued on the basis of a pre-April 2013 CFA funding arrangement. Then, once permission to appeal to the CoA was granted, a further CFA funding arrangement was entered into on the 23rd November 2013. When the CoA disallowed the appeal, the C was ordered to pay both D1 and D2’s costs of the appeal. The question of whether the C was protected by qualified one way cost shifting (QOCS) was referred to the Senior Court Costs Office (SCCO). Master Haworth considered the definition of a pre-commencement funding arrangement as found in CPR 48.2: an “agreement …entered into before 1 April 2013 specifically for the purposes of the provision to the person to whom the success fee is payable of advocacy or litigation services in relation to the matter that is the subject of the proceedings in which the costs order is to be made” (emphasis added). The reference therein to “matter” was held to be the draftsman’s way of increasing the ambit of the provision (c.f. “proceedings”, which has a narrower construction). So QOCS protection was not afforded to the C - the appeal was part of the same matter. Richard Downing v Peterborough & Stamford Hospitals NHS Foundation Trust [2014] EWHC 4216 (QB), 12th December 2014 Following a compromise of liability of a clinical negligence claim on a 63/37 basis in favour of the C, a Trial took place in which Eady J assessed damages for a sum in the region of £1.5m (after deducting the agreed 37%). The judgment, therefore, was "at least as advantageous to the claimant" as the proposals made in the C’s CPR 36 offer, which was £1.2m inclusive of interest, plus costs. Eady J considered the consequences of CPR 36.14 (as introduced in April 2013). The C sought its costs on an indemnity basis from the relevant date and for interest on those costs at a rate not exceeding 10% above base rate. The Court is obliged to make such an order unless it considers it "unjust" to do so. Eady J considered that it might be unjust where the D assessed the case on the basis of inaccurate information through no fault of his own or where it had been misled by the claimant or his advisers through, say, non-disclosure of a material fact or document. In other circumstances, though, if it was just a judgement call (ultimately an unfavourable one), indemnity costs should be awarded as provided for. The “additional sum” provision under CPR 36.14 was allowed at the maximum on the applicable sliding scale (£75,000), as there was no reason in Eady J’s mind not to do so. <a title="Paul Sangha" href="/barristers/Paul-Sangha/" target="_blank" rel="noopener noreferrer">Paul Sangha</a> February 2015

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