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A roundup of recent court decisions raising issues relating to encroaching Japanese Knotweed; contributory negligence in Scottish personal injury cases; the approach to non-tariff injuries; and fraudulent claims.
Council wins Supreme Court appeal in Japanese knotweed case
Davies v Bridgend County Borough Council [08.05.24]
The Supreme Court decided that the appellant council should not be ordered to compensate the respondent for the residual diminution in value (DMV) of his property.
The respondent alleged damage had been caused to his property by the encroachment of Japanese Knotweed from neighbouring land owned by Bridgend County Borough Council. The respondent had purchased the property in 2004, at which date it was accepted that the encroachment of the Japanese Knotweed would have already occurred. The respondent alleged that between 2013 and 2018, the appellant was in breach of duty in allowing Japanese Knotweed to encroach onto the respondent’s land.
The respondent pursued a claim for DMV calculated at £4,900 as the treatment process could not guarantee complete eradication of the Japanese Knotweed.
The respondent’s claim was dismissed at first instance. On appeal, the Court of Appeal held that there was a continuing breach of duty between 2013 and 2018 and that the residual DMV as at the end of the period of continuing nuisance in 2018 was harm caused by the breach of duty. The appeal was allowed and judgment awarded in the sum of £4,900. The council appealed this decision.
The Supreme Court held that there was no causal link between the residual DMV claimed and the appellant’s breach of duty. The Court’s application of the law on causation may be summarised as follows:
- Delaware Mansions Limited v City of Westminster [2001] is not authority to assert that DMV is recoverable; and
- Application of the “but for test” - It had not been proven that the appellant’s breach of duty caused a DMV in the value of the land, as the DMV had occurred long before any breach by the appellant. Applying the “but for” test eliminated the causative impact of the appellant’s subsequent breach of duty, as the DMV would have occurred in any event.
This decision will be welcomed by local and public authority landowners and other organisations when faced with similar claims and should serve to knock out a significant element of damages routinely claimed.
Contacts: Richard Whybrew and Helen Snowball
Scottish court applies sensible approach to contributory negligence
Dick v Merrick [3.04.24]
The Scottish Court of Session has clarified that cyclists cannot assume the highway code applies to public paths. Rather, reasonable behaviour and observation must prevail.
The action arose from a cycling accident on 26 August 2019 at a junction of two converging paths, which both parties were familiar with and had cycled before. The pursuer turned onto the path and collided with the defender.
The pursuer submitted that the highway code applied and had been breached by the defender. The defender argued that the pursuer had come out of the junction at speed and in a “split second” leaving no time to react or stop safely. He also asserted that he had the right of way.
The pursuer considered that the majority apportionment of liability lay with the defender, suggesting the figure of 75%. The defender denied liability in full with a secondary position that he would bear a token 10% portion.
The judge held that while public paths are available for cyclists to utilise, they do not mimic roads in that other users of such walkways cannot be assumed to be observing such rules. Both cyclists were found to have been travelling at unsafe, excessive speeds and neither was exercising reasonable care to observe their surroundings. As such, the pursuer was held 50% responsible for his own loss, injury and damage.
Related item: A cyclist’s crash course in contributory negligence
Contact: Tim Lennox
Approach to non-tariff injuries clarified by Supreme Court
Hassam and another v Rabot and Another [26.03.24]
The Supreme Court determined the approach to be taken to valuing damages for pain, suffering and loss of amenity (PSLA) where the claimant suffers a whiplash injury captured under the Civil Liability Act 2018 and the associated whiplash tariff, and any additional injury/injuries outside the scope of the Act.
The caveat, introduced by Davies LJ, that “the final award cannot be less than would be awarded for the non-tariff injuries if they had been the only injuries suffered by the claimant”, was also endorsed.
The Supreme Court dismissed the dissenting judgment from the Master of the Rolls, Sir Geoffrey Vos, in the Court of Appeal. Vos proposed the PSLA award is primarily covered by the tariff award and only anything over and above that award is considered using the common law. Vos averred parliament had legislated for not only the tariff but had also accepted and legislated for a decrease in general damages more generally in the non-tariff space where there is a whiplash injury.
Three years into this regime it appears many of these injuries will now be valued at a level that necessitates an increase in the number of claims exiting the OIC process and entering the fast track. This will in turn increase cost and indemnity spend further for insurers.
In terms of other areas of appeal, the definition of whiplash appears a likely area of focus. Guidance from the higher courts on oral evidence in OIC claims would also be welcomed. There is certainly merit for both claimants and defendants in having the claimant attend court.
Related item: Clarity on mixed injuries from the Supreme Court
Contacts: Ian Davies and Roger Davis
Insurer succeeds in sending strong message to potential fraudsters
Haven Insurance Company Limited v Higham [2023]
On behalf of the defendant insurer, Kennedys recently secured a finding of contempt against a claimant who fraudulently alleged an inability to work as a roofer following a road traffic accident.
On 17 August 2019 the claimant was struck as a pedestrian by a vehicle insured by Haven Insurance Company Limited. Primary liability for the incident was admitted pre-litigation.
On 19 July 2022 the claimant issued court proceedings alleging that due to ongoing issues with his knee and shoulder he avoided doing DIY and was unable to return to work.
The defendant insurer undertook surveillance of the claimant which showed him working and served a defence and counter schedule alleging fundamental dishonesty. The claimant then discontinued his claim. In view of the serious nature of the attempted fraud, the insurer pursued the claimant for contempt of court.
The claimant admitted to being dishonest and the judge held that he had only discontinued in the face of “overwhelming evidence of dishonesty”. Ultimately the judge suspended the claimant’s two month sentence for one year due to the claimant’s significant mitigating circumstances.
Pursuing a further sanction after the successful defence of the claim allows an insurer to protect its position, and that of its shareholders, by ensuring that a strong message goes out to potential fraudsters that their actions will not be tolerated. A criminal conviction is a sanction that has a significant impact on those who bring fraudulent claims and, in the right cases, it is an effective deterrence tool for insurers.
Related item: Personal injury claims and contempt of court: a recent case study
Contact: Amber Jenner
United Kingdom