Personal injury update

In Horton v Sadler [2006] UKHL 27, the House of Lords took the unusual step of overruling its own previous decision in Walkley v Precision Forgings Ltd [1979] 1 WLR 606.

In Walkley, it was held that where a claimant had commenced a claim within the primary limitation period and that claim had subsequently floundered for procedural reasons, the claimant could not bring a second claim relying on the discretion granted to the court under what is now s 33 of the Limitation Act 1980.

In the view of the court, the decision in Walkley had created artificial distinctions in subsequent case-law between claims that were issued within the primary limitation period and cases where no proceedings had been issued at all. There was no reason for concluding that a defendant should be vulnerable in the latter case, where the claimant solicitor's negligence would probably be greater, but not in the former case, where it would probably be less.

The House of Lords held that Walkley had deprived claimants of the right that Parliament had intended them to have, and had given rise too much unsatisfactory jurisprudence.

Duty of care

A balanced approach was taken in Maguire v Sefton MBC [2006] EWCA Civ 316; the Court of Appeal held that there was no distinction to be drawn between the liability owed under the Occupiers Liability Act 1957 to a contractual visitor and that owed to non-contractual visitors Under the Act, a local authority had not been liable to a visitor to its leisure centre for injuries sustained in the course of using gymnasium equipment where the authority had entered into a maintenance service agreement with a third party for the maintenance of the equipment and that third party had recently carried out an inspection of the equipment. No defect could be found with the equipment, accordingly, there was no substance in the finding of liability under the Act.

Reinstatement of claims

A fair conclusion was reached in Gaydamak v UBS Bahamas Ltd [2006] 1 WLR 1097 '“ the House of Lords shifted the burden of proof away from the claimant seeking to reinstate a claim that had previously been struck out.

In the instant case, it was held that where an application by a blameless absent litigant for reinstatement of proceedings that had been struck out as a result of his absence was refused on account of the hopelessness of his case, it would be for the person resisting the application on that ground to satisfy the court that the proceedings were indeed hopeless. In the instant case, the Court of Appeal was in error in directing itself that applicants must prove that their case had a chance of success. Where a blameless absent litigant whose case had been struck out was seeking its reinstatement, and where there had been no delay and there was no likelihood of prejudice to the other parties, it was for the other parties to show that the case had no chance of success. Prima facie justice required that the case be reinstated. The court could not have had any view regarding the likelihood of the success of the appeal, as there had been no argument about the merits of the case.

Employers' liability

The Court of Appeal clarified the training obligations of employers under the Manual Handling Operation Regulations 1992 in Smith v Notaro Ltd [2006] EWCA Civ 775.

The claimant was a delivery man employed by a company that had required him to deliver a radiator to a building site where new properties were being constructed. The route into the property was via three planks of wood laid on the topsoil over a driveway. There was a perimeter walkway of sounder construction that had been fenced off by a wire fence, which, it appears, could easily have been moved. The claimant walked across the planks on six or seven occasions. On the final occasion, the plank gave way beneath him and he stumbled and damaged his back. The appeal related to the apportionment of liability between the occupier and the part-20 defendant, the employer. The Court of Appeal opined that, while it ought to have been common sense for the claimant not to walk on the walkway while carrying a radiator, the regulations envisage and provide for training by an employer of his employee in risk assessment related to manual handling operations being carried out on uneven or unstable surfaces.

In the judges' view, 'the object of the regulations is for an employer, by training, to make an employee aware of the risks of injury when carrying heavy loads over uneven and possible unstable ground. If this had been done then the judge considered that the claimant, when considering taking the route he took, 'might have stopped before doing so'.'

Contributory negligence

In Wells v Mutchmeats Ltd [2006] EWCA Civ 963, in a claim for compensation for personal injuries, where it had been the appellant's job to check that trays of disinfectant used as footbaths were full, and the appellant had been aware the tray might slip if not full, the judge had been correct to make a finding of contributory negligence and to apportion the blame at 40 per cent where the tray had slipped when the appellant stood in it.

Fatal Accidents Act

In Eileen Corr v IBC Vehicles Ltd [2006] EWCA Civ 963, the appellant appealed against the decision that she was not entitled to damages following the suicide of her husband in a claim against his employer. Her husband had suffered post-traumatic stress disorder following an accident caused by his employer's negligence or breach of statutory duty. Some six years after the accident, he committed suicide. The claimant brought a claim on behalf of her husband's estate and under the Fatal Accidents Act 1976. The judge held that the employer had been in breach of its duty of care, but that the duty did not extend to a duty to take care to prevent the husband's suicide.

On appeal it was held (Ward LJ dissenting on the question of reasonable foresight) that on the evidence the husband's suicide did not break the chain of causation between the employer's negligence and the consequences of the accident. The claimant did not need to establish that at the time of the accident the husband's suicide was reasonably foreseeable as a kind of damage separate from psychiatric and personal injury. Responsibility for the effects of suicide depended on whether it flowed from a condition for which, by reference to the appropriate foreseeability criteria, the defendant was responsible.

In this case, the claimant had founded her claim on depression, which was admitted to be a foreseeable consequence of the employer's negligence, and the uncontroverted evidence was that suicide was a not uncommon consequence of severe depression.

Costs

A summary of some recent costs cases is set out below:

In Woollard v Fowler [2006] WL 1518696, the court held that fees charged by medical reporting agencies for supplying reports and records were recoverable as disbursements under the CPR rule 45.10 (2) provided that they were reasonable and proportionate.

In Brennan v Associated Asphalt Ltd [2006] WL 1518697, Senior Costs Judge Hurst stated that reg 3 of the Conditional Fee Agreement Regulations 2000 required conditional fee agreements to specify how much of the percentage increase in success fees related to the cost of the postponement of payment of solicitors' charges and disbursements. The words 'if any' in reg 3(1) (b) of the Regulations did not mean that if the deferral element was nil there was no need to mention it.

In Haji-Ioannou v Frangos [2006] WL 421902, where a party had failed to commence detailed assessment proceedings in time, the court had the power to disallow both interest and costs, and it could not be said that where the court disallowed interest it would only be in exceptional circumstances that it could also disallow costs.

Asbestos

In the controversial House of Lords decision in Barker v Corus [2006] UKHL 20, it was held that where employers were liable on the basis that they had negligently exposed an employee to asbestos and thereby created a material risk of mesothelioma that had eventuated, it would be fair that they should be severally liable only to the extent of the share of the risk created by their breach of duty.

Following the significant blow to asbestos claimants as a result of the decision in Barker, the government rapidly introduced an amendment to the Compensation Bill to make it easier for mesothelioma sufferers to receive compensation in asbestos cases.

Under the Compensation Act (which received Royal Assent on 25 July 2006) negligent employers will now be jointly and severally liable, enabling the claimant to recover full compensation from any relevant employer. That employer will then be able to seek a contribution to the damages award from other negligent employers. Unusually the Act is retrospective so that claimants caught in the lacuna between Barker and the passing of the Act will be able to take advantage of the new legislation.