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A roundup of recent court decisions raising issues relating to secondary victims, failure to remove claims, the court’s approach to alternative dispute resolution, the concept of ‘control’ between contractor and sub-contractor, and contentious business agreements.
Clarification on secondary victim claims offered by the Supreme Court
Paul and another v Royal Wolverhampton NHS Trust; Polmear and another v Royal Cornwall Hospitals NHS Trust; Purchase v Ahmed [11.01.24]
On 11 January 2024, the Supreme Court delivered a landmark judgment concerning whether a defendant can be held liable for psychiatric injury suffered by a close relative of a primary victim of clinical negligence who witnesses their loved one’s death. The appeals were dismissed by a majority of six to one.
The appeals involved three claims about psychiatric injury caused to close relatives of the primary victims who died from a failure to treat or diagnose a medical condition. In each case, the relatives did not witness an event causing injury involving violent external means. They saw the outcome of an alleged breach of duty which took place sometime before the causative effect in the primary victim and the onset of the secondary victim’s injury.
The Court distinguished claims concerning claimants who witness an accident (or its immediate aftermath) involving victims with whom they have a close tie of love and affection, and claimants who suffer illness as a result of witnessing a loved one suffering a medical crisis.
As a result, the Court has restricted secondary victim claims to those who witness an accident, but they no longer need to have experienced a single event which is objectively horrifying. The Court has also clarified that a gap in time between the breach of duty and the accident in which a secondary victim claim might be premised is not, and should not be, a bar to recovery.
There is now very little scope for secondary victim claims in the context of pure medical negligence. Such claims are now reserved for injuries sustained in an accident context when witnessed in close proximity by certain close family members.
Contacts: Nichola Johnston and James Shrimpton
Related item: Supreme Court ruling: secondary victim claims and clinical negligence
Supreme Court strikes out 'failure to remove' claims
HXA v Surrey County Council and YXA v Wolverhampton City Council [2023]
On 20 December 2023, the Supreme Court held that the local authorities in this conjoined appeal had not assumed responsibility for the claimants and therefore, no common law duty of care was owed to protect them from abuse in their home environment.
HXA and YXA pursued negligence claims against the respective local authorities for the sexual and physical abuse they suffered from a parent or parent’s partner. The claimants alleged that the local authorities owed them a duty of care because they had assumed responsibility to protect the claimants from harm caused by third parties.
Both claims were struck out at first instance for having disclosed no arguable cause of action. The Court of Appeal overturned those decisions. Agreeing with the judges at first instance, the Supreme Court made clear that simply undertaking statutory duties does not equate to assuming responsibility. This notion has been clarified in previous judgments such as Poole Borough Council v GN and another [2019] and Robinson v Chief Constable of West Yorkshire Police [2018].
The Court helpfully offered two examples of when an assumption of responsibility would be made out, namely:
- Where the local authority has obtained a care order and has taken parental responsibility for a child; and
- Where a child is accommodated under section 20 of the Children Act 1989 (but the Court confirmed this would be only for the period of accommodation and in respect of the “mechanics of return”).
The decision of the Supreme Court confirms that a local authority will not generally owe a duty of care in a failure to remove claim. It will be welcomed by local authorities and their insurers following a period of uncertainty in recent years and will undoubtedly lead to a reduction in cases of this type.
Contacts: Helen Snowball and Andrea Ward
Court of Appeal confirms court can order parties into ADR
Churchill v Merthyr Tydfil County Borough Council [2023]
On 29 November 2023, the Court of Appeal handed down its decision confirming that the Court can stay proceedings and compel parties to engage in non-court-based dispute resolution so long as it does not impair the very essence of the claimant’s Article 6 of the Human Rights Act 1998 (right to a fair trial).
This case concerned the alleged incursion of Japanese Knotweed onto the claimant’s land from an adjoining council property. The claimant sent a letter of claim to the council claiming for a reduction in the value of his property and loss of enjoyment. The council responded to the claimant querying why he had not used the council’s internal complaints procedure and advised that if the claimant issued proceedings without using the procedure, the council would apply for a stay and costs. The claimant issued proceedings and the council made the application. The Court dismissed the council’s application on the basis that it was bound by the decision of Lord Justice Dyson in the case of Halsey v Milton Keynes General NHS Trust [2004] that to oblige unwilling parties to refer their disputes to a form of alternative dispute resolution would be to impose an unacceptable obstruction on their rights of access to the Court.
The Court of Appeal held that it can lawfully stay proceedings for the parties to engage in a non-court based process. However, it refused to lay down fixed principles about the relevant factors in determining whether the alternative process is appropriate.
Each case will be considered on its own facts and parties will need to consider the merits of the particular ADR process. Any party who chooses not to engage in any form of non-court based adjudication will need to be able to justify that position in light of the Court of Appeal’s decision and its approval of non-court based adjudication generally.
Finally, following an announcement by the Ministry of Justice last year that mediation will become compulsory for cases allocated to the small claims track valued up to £10,000, stakeholders should await confirmation of the implementation date.
Contact: Steven Elliot
Related items:
- Court has the power to order parties to partake in ADR
- Watch this space - civil justice reforms on the horizon
Scottish court explores the concept of ‘control’ between contractor and sub-contractor
James Miller v J.W. Wheatley and Son Ltd and another [2023]
In this decision of the Scottish Outer House, the Court found that the concept of ‘control’ is a defining feature in liability between a contractor and a sub-contractor.
By way of background, the defenders were granted decree of absolvitor following a workplace accident at height on a construction site where the pursuer, a sub-contractor, fell whilst on a roof, sustaining serious injuries.
The pursuer submitted that recent case law had “blurred the distinction between employees and independent contractors”. As such, it was necessary to look at the underlying situation to understand the control dynamic which existed between the parties.
Considerable reliance was placed on Uber BV v Aslam [2021] and Makepeace v Evans Brothers (Reading) [2001] to establish that the relationship was akin to an employer/employee relationship. Further, he argued that an employer owes a duty to protect their employees from “their own stupidity” and in that connection, the defenders should have told the pursuer not to work on the roof that day.
Lord Malcolm concluded that the pursuer was an independent contractor and the duty of care contended for was not owed to him. He held that there was no comparison between the present case and the position in Uber. The relationship which existed between the parties was not one in which the defenders were responsible for overseeing how the contract works were done or for proactively ensuring the pursuer’s safety.
The outcome of this case serves as a reassurance to defenders that there are limits to the concept of ‘control' where there are a number of parties, potential duty holders and overlapping obligations in the mix.
Contact: Clare Crawford
Related item: A slip in the right direction: a recent Scottish case
Supreme Court refuses permission to appeal in failure to remove case
AB v Worcestershire County Council and Birmingham City Council [2023]
On 21 November 2023, the Supreme Court refused the claimant’s application for permission to appeal the decision of the Court of Appeal in AB v Worcestershire County Council and Birmingham City Council.
The claim was brought under the Human Rights Act 1998 against two local authorities for failing to remove the claimant from his mother’s care.
The High Court granted an application for summary judgment by the defendants in the claim for breach of the claimant’s rights under Article 3 (freedom from inhuman and degrading treatment). The Court found that the treatment alleged by the claimant did not meet the required threshold.
The Court of Appeal agreed that there was no arguable breach of Article 3. Looking at the treatment alleged and the actions taken by social services, there was no real and immediate risk of Article 3 treatment in this instance.
The Supreme Court confirmed there is to be no further appeal in this case. In refusing permission, the Court indicated that the application did not raise an arguable point of law.
The decisions of the High Court and the Court of Appeal provide practitioners in this area with welcome guidance as to when a HRA claim may be brought for failure to remove, and confirm that cases involving low level neglect and physical abuse will not meet the threshold for Article 3 treatment. There will, of course, remain cases where the treatment alleged meets the Article 3 threshold, so a claim may be brought, such as claims involving sexual abuse. We expect however, to see fewer claims brought under the HRA for failure to remove as a result of this case.
Contacts: Louise Bedford and Rebecca Maby
Related items:
- Supreme Court refuses permission in Human Rights claim for failure to remove
- Court of Appeal identifies the correct test under Article 3 of the Human Rights Act 1998 in failure to remove case
Provisions in contentious business agreements can extend beyond the parties to the agreement
Christina Falls v LIDL Northern Ireland Limited [2023]
On 8 November 2023, the High Court in Northern Ireland handed down a game-changing judgment which held that a successful defendant in the County Court is entitled to have the Court certify the amounts sought from an unsuccessful plaintiff in respect of costs, where there is a contentious business agreement (CBA) between a defendant and their client. It held that a plaintiff is entitled to dispute the amount sought, and in determining whether costs should be allowed, disclosure of a CBA the Court will be required.
The County Court in Northern Ireland provides a scale of recoverable costs for solicitors and barristers in personal injury cases. In this case, there was a CBA between the defendant and their solicitors whereby the defendant had agreed to pay their solicitors a percentage of the scale costs. In defending the case, the defendant had incurred costs for their solicitor, and for instructing counsel and an expert witness engineer.
After having her claim dismissed with costs to the defendant, the plaintiff disputed the defendant solicitor’s bill of costs for two reasons. First, it was contended that the defendant’s solicitor could not recover scale costs as this would be a breach of the indemnity principle. Second, the defendant was unable to recover ‘non-scale fees’ (i.e. costs under a CBA which were not marked on scale). Counsel’s fee and the engineer’s fees were also claimed to be excessive. The bill was certified by the County Court prior to the plaintiff’s unsuccessful appeal to the High Court.
This procedure balances the rights of both parties in allowing a court to certify costs based on a CBA between a solicitor and client and also ensures that a plaintiff has a right to challenge the position.
Contacts: Amanda Wylie and Adam McGahan
Related item: Recovery of costs in the County Court of Northern Ireland: a moment of clarity?
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