Personal Injury Brief: latest decisions September 2021
A roundup of recent court decisions raising issues relating to fatal accident claims, tour operator liability, the law on primary victims in Scotland, and whether or not to plead fundamental dishonesty.
What qualifies as a dependency?
Steve Hill Ltd v Witham [26.08.21]
Mr Hill, the deceased, was the primary carer of two foster children, which allowed his wife/the claimant to work as the breadwinner for the family. Following Mr Hill’s death, the claimant quit her job and took over the full-time care of their foster children.
The Court of Appeal held that it was the claimant who had lost the benefit of the service which the deceased provided in caring for the children and which allowed her to work, rather than the foster children, who are not dependants under Section 1(3) of the Fatal Accidents Act 1976.
The Court of Appeal also held that where earnings have been lost, the commercial rate of care may be appropriate. Of note is that a commercial rate was allowed despite no professional package being in place by the time of trial.
Further, the court allowed new evidence showing that the foster children were no longer in the care of the claimant and that the matter be remitted to the trial judge to allow for a re-evaluation of the claimant's claim regarding the lost benefit.
Various articles have been published suggesting the decision as akin to a landmark case on the application of commercial care rates and as a route to widening the scope of applicable dependants. However, the market must bear in mind that because of the highly unusual facts of this case, the majority of fatal accident cases are distinguishable.
A broad interpretation of tour operator liability
X (Appellant) v Kuoni Travel Ltd (Respondent) [30.07.21]
This case relates to whether a travel operator is liable in contract, under the Package Travel, Package Holidays and Package Tours Regulations 1992, for a sexual assault that occurred at a hotel. Whilst on holiday, the claimant (X) made her way to the hotel reception, when a uniformed member of the hotel’s staff (N), offered to show her a shortcut. N took X to the engineering room and proceeded to assault and rape her.
The Supreme Court held that a tour operator can be found liable in contract, under the 1992 Regulations, for the non-performance or “improper performance” of the obligations it has undertaken, even in a situation where those failures are the result of acts or omissions of employees of a third party supplier of services.
It is to be remembered that this judgment of course deals with the 1992 Regulations, not the current regulations. Further, each case will be determined on its specific circumstances and the significance of local standards evidence in travel cases remains unaffected.
- Tour operator liability case referred to the EU
- The ‘sphere of control’ – CJEU considers tour operator liability for the criminal acts of hotel employees
- A broad interpretation of tour operator liability
The Sheriff Appeal Court examines and restates the law on primary victims
Danielle Weddle v Glasgow City Council [07.06.21]
This case involved a tragic accident in December 2014 when a bin lorry collided with a taxi in Glasgow City Centre, which was busy with Christmas shoppers. The driver had suffered a medical emergency, and the collision caused the vehicle to mount the pavement, claiming the lives of six pedestrians.
The pursuer was a witness to the collision and was subsequently diagnosed with post-traumatic stress disorder. She did not know anyone involved in the accident and as such, did not meet the relevant criteria to be a secondary victim.
CCTV footage showed the pursuer looking at her phone when she heard the noise of the collision, looking up when the vehicles were around 40 metres away. She briefly looked back at her phone before returning her attention to the accident. Crucially, the pursuer also sought medical attention later that day but made no reference to being in fear for her own safety at any point.
The court restated that in a case of pure psychological injury, a primary victim must have a reasonable belief that they were in danger of physical harm. Harrowing though the incident was, the court agreed with the first instance decision, and the appeal was refused.
While this case does not change the law on primary victims, it is both a useful reminder of what that law is, and an illustration of how a strict interpretation will be applied even in the most distressing circumstances.
- The Sheriff Appeal Court examines and restates the law on primary victims
- Secondary victim claims: proximity between the alleged negligence and relevant event
- Nervous shock in the digital age
Fatal accident claims: quantifying damages for dependants
Chouza v Martins & Ors [22.06.21]
The High Court has offered useful guidance on a number of principles in a fatal accident claim in terms of how to assess pain, suffering and loss of amenity (PSLA) where death was almost instantaneous, how to calculate the dependency ratio and who should be considered a dependant.
The deceased, a passenger in a minibus, was fatally injured as a result of a road traffic accident in 2015 during which the minibus collided with a lorry being driven on the wrong side of the road. The deceased died almost instantaneously following the physical injury, but had warning that a severe accident was about to occur. The deceased left behind a wife and four children; three sons aged 29, 24 and 20 and a daughter aged 11.
The key points arising from this case are as follows:
- PSLA in a fatal claim can include damages for ‘fear and anguish’ where there is associated pain arising from an injury.
- The court is entitled to depart from the dependency ratios set out in Harris v Empress Motors  and apply different percentages based on anecdotal evidence from the family alone.
- Adult children cannot bring claims for loss of earnings as a result of a parent’s death and will not be dependants for the purposes of the Fatal Accidents Act 1976 unless they were financially dependent on the deceased prior to the accident.
Related item: Fatal accident claims: key issues to consider
Pleading fundamental dishonesty: is it necessary?
Mustard v Flower and others [12.04.21]
Master Davison’s decision affirms that a defendant does not need to plead fundamental dishonesty to make an application under Section 57 of the Criminal Justice and Courts Act 2015.
In this case, the Judge was asked to consider an application to amend a defence to include a paragraph relating to the claimant’s alleged exaggerated symptoms and raising the issue of fundamental dishonesty. The prior was allowed, the latter was not.
Although much is being made by claimants’ representatives of the refusal by the judge to allow the defendant to include a fraud warning in the amended defence, it should be noted that the court’s permission was only required because it was an amended defence and the main reason for this given by the judge was that it was not necessary. The other considerations referenced by the judge were that there was no reasonable prospect of a finding of fundamental dishonesty and that the claimant would have had to put her legal expenses insurer on notice of the pleading.
The consequence of this decision is that defendants should avoid making throwaway or casual fraud warnings but there is no absolute barrier to including this content in defences – the question for defendants is whether it adds anything to the defence.
Related item: Fundamental dishonesty – no need to play your hand