Personal injury update

Recent cases have seen the courts continuing the trend of considering new means of establishing liability. The courts recently had to address the question of whether fire services were entitled to claim 'fireground immunity'.

Another case which, while providing guidance for harassment at work claims, inadvertently highlights one of the serious dangers posed by the new one-way costs-shifting rules.

Fireground immunity

In Various Claimants v Winter, East Sussex Fire and Rescue Service & Alpha Fireworks Ltd [2013] EWHC 2331 (QB), the court had to consider whether a fire service could claim 'fireground immunity'.

The claimants ('C') were firefighters and police officers who were called to a fire at a site ('the site') which was mostly occupied by the first defendant, Mr Winter ('D1').

The fire started due to some mishandling of fireworks by D1's son. After C attended, a fireworks container exploded resulting in the death of 2 fireman and serious injury to others.

D1 and his son were subsequently convicted of manslaughter by gross negligence and C secured summary judgment against D1 in their civil claim. However, D1 was impecunious as was the third defendant who was in liquidation.

Therefore, C was left with no option but to pursue the second defendant fire service ('D2'). It was alleged D2 had breached its common law duty of care to C as well as various statutory duties including the Health and Safety at Work Act etc. 1974('HSA').

As concerns its statutory duties, D1 claimed these overlapped with those under the Fire and Rescue Services Act 2004 which were only 'target' duties not giving rise to civil liability. Alternatively, they claimed that if these regulations applied and with regard to any common law liability, that they were immune due to the inherent and accepted risks in their work - 'fireground immunity'.

The court rejected D1's claims concerning statutory duties noting fire and rescue services were not expressly excluded from the HSA (interestingly, police services are excluded) and so, it must have been parliament's intention that these regulations applied.

Turning to common law, the court was able to benefit from the detailed analysis provided by the Supreme Court in Smith & Ors v MOD [2013] UKSC 41. Following Hale J's observations in Sussex Ambulance NHS Trust v King [2002] EWCA Civ 953, the starting point is that such employees are owed the same duty of care as others. While there are risks associated with such jobs which these employees accept, their employers are not immune from liability for risks which 'the exercise of reasonable care' could avoid.

However, the police officers were not employees of D1, but as they were co-operating with the firefighters' effort, there was sufficient proximity and further to Caparo Industries Plc v Dickman [1990] 2 AC 605, it would not be 'fair, just and reasonable' to say the firefighters were owed a duty of care, but not them.

Once this duty was established, it was held D2's failure to properly inform itself of the dangers at the site and of fireworks generally (the court engaged a detailed examination of the knowledge available to D2 prior to the accident) and to properly train its firefighters, constituted a breach of its duty at common law.

D2 also alleged contributory negligence in respect of one of the claimants who had a history of placing himself in danger. This argument was rejected because, if there was such a history, then D2 had condoned and accepted it.

This case is yet another example of the courts severely restricting the scope of immunity and other traditional restrictions on liability. It seems the courts are more keen look back to Caparo to determine if there is a duty of care.

Some say the courts are merely searching for those with the deeper pockets, but this is an over simplification. The other view is they are looking to attach liability to those who were in a close enough position to warrant liability and had the capability of preventing injury, but failed to do so.

This trend is likely to continue.

Dangers of One Way Costs Shifting

Saha v Imperial College of Science, Technology and Medicine [2013] EWHC 2438 (QB) serves as a warning to many employers that they are at risk of having to defend further similar claims.

The claimant ('S'), who was a PhD student at Imperial College London, made numerous allegations against one of its senior lecturers ('L') under the Protection from Harassment Act 1997.

L's alleged course of conduct started with an email he sent about her performance which was followed by other emails and behaviour that escalated into heated verbal exchanges between them. In one of these exchanges, a witness observed that S' hand was shaking.

Previous authorities confirm the bar is set high for establishing a breach under the Act. Therefore, merely causing distress is insufficient and conduct that is 'oppressive and unreasonable' is required. However, it is accepted that behaviour which causes upset and annoyance arises frequently and can be part of our day to day dealings with others (Majrowski v Guys and St Thomas' NHS Trust [2005] EWCA a Civ 251). The context is also crucial and so, conduct on a factory floor may not be harassment, whereas the same conduct engaged in a hospital may well be (Conn v Sunderland City Council [2007] EWCA Civ 1492).

While L was, on numerous occasions, merely trying to provide constructive criticism, the court regarded his behaviour as inappropriate in many respects. The way he phrased his emails was considered 'intemperate' (among others, there was a liberal use of exclamation marks). He had made unreasonable demands by asking S to essentially check in and check out daily so that he could monitor her time keeping. He had even breached her confidentially by copying in other members of the college to emails he sent her.

Despite this, it was held L's conduct did not satisfy the high threshold set by the Act. Therefore, S lost her claim.

In reaching this decision, it was noted that L had later taken on board criticisms made of him by other senior college members and altered his behaviour. This was a key point for the court who confirmed that had this change not occurred, L's conduct may well have been caught by the Act. This case highlights the difficulties faced by claimants in this and other 'stress at work' claims. Proving the allegations is particularly problematic with many claimants being outnumbered when it comes to the number of witnesses (in this case S had no supporting witnesses whereas the college had 11). Also, the outcome, as confirmed by previous authorities, is fact sensitive which makes it difficult to assess prospects early on.

Therefore, many claimant solicitors will only act if the evidence appears strong. Otherwise, they risk much wasted time and expense, which is neither beneficial to them or their client. However, even if solicitors turn down a case, there is now no barrier to a claimant advancing the claim as a litigant in person following the introduction of the new one way costs shifting rules in April.

While the reasons are unclear, S represented herself in this claim which was expensive to defend. As these types of work place complaints can be quite common, employers and other institutions similar to the college, should brace themselves for further litigant in person claims.

No claimant should ever be denied access to justice, but it is clear that a vital filter for unmeritorious claims has been lost. SJ