Parklane Plowden Personal Injury & Clinical Negligence Newsletter 2015
QUARTERLY UPDATE – NO. 1 of 2015
Costs, fees and budgeting
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.
In this e-newsletter
Paul Sangha 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.
Georgina Nolan examines the tensions within recent authority relating to secondary nervous shock victims and the straightjacket being applied by Alcock.
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  ewhc 4053 (qb)
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  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  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  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.
Road Traffic Accidents
Landau v (1) The Big Bus Company Limited & (2) Pawel Zeital  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  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  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.
McDonald (Deceased) (Represented by Mrs Edna McDonald) v National Grid Transmissions Plc  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  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  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  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.
Howard Platt v BRB (Residuary) Ltd  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.
Yapp v Foreign & Commonwealth Office  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).
Future loss of earnings
John Billett v Ministry of Defence  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  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.
Lougheed v On the Beach Limited  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  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.
Altomart Ltd v Salford Estates (No. 2) Ltd  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  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.
Martin Coward v (1) Phaestos Limited, (2) Mindimaxnox LLP, (3) Ikos Cif Limited & (4) Ikos Asset Management Ltd  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  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.