Personal Injury Brief: Latest decisions - July 2025

A summary of recent decisions relating to vicarious liability, and recovery of private treatment costs; the extent of an employer’s duty of care; and direct claims under the Third Parties (Rights Against Insurers) Act 2010.

Vicarious liability, and recovery of private treatment costs

JD Wetherspoon Plc v Stephenus Bernadus Burger [21.05.2025]

This case concerned the question of the defendant’s vicarious liability for two doormen engaged by an independent contractor. Please see our article which addressed the liability issues.

The judgment also gave rise to an interesting argument around damages.

It was common ground between the medical experts that the claimant required hip revision surgery due to the accident, between the ages of 40 – 45 and again at around 70 years old. Based on estimated costings, the claimant claimed the sum of £31,975.50 for future treatment in his Schedule of Loss. The defendant contended that the procedure was available on the NHS, that there was no particular benefit from private treatment, that NHS waiting lists were not prohibitive, and that, in those circumstances, there was no sustainable claim for private treatment (on the balance of probabilities as to what would occur in future). Under cross examination, the claimant gave evidence as to his intention to go on the NHS waiting list to have his hip operation.

At first instance, the Judge considered this exchange did not definitely establish the claimant’s intention to only use the NHS. The Schedule of Loss was also evidence of the claimant’s intention to undertake the treatment privately, and on balance, found that a Claimant provided with the means would undertake treatment privately. The court awarded damages on that basis and the defendant appealed this finding, as well as the decision on liability.

With reference to one of the grounds of appeal, paragraph 7 of the judgment states that “Section 2(4) of the Law Reform (Personal Injuries) Act 1948 provides that in a claim of this nature “there shall be disregarded, in determining whether any expenses are reasonable, the possibility of avoiding those expenses or part of them by taking advantage of facilities available under the National Health Service."

On appeal, the judge stated that nevertheless, courts do consider, in relation to future care and treatment, whether a claimant is likely on the balance of probabilities to use NHS facilities, primarily if the required care is unavailable privately. This does not detract from the claimant's entitlement to opt for private treatment. The choice of self-funding, where available, has been recognised as a right, unqualified by considerations of reasonableness in the context of mitigation of loss (see Peters v East Midlands Strategic Health Authority [2009] EWCA Civ 145). Having considered the evidence, the appeal judge found it was open to the judge at first instance to find such treatment on balance would be undertaken privately. On appeal liability was found in favour of the defendant in any event.

The decision is a useful reminder that whilst a claimant is not obliged to rely on the NHS in place of private treatment, for them to recover the cost of such treatment, they still need to show on the balance of probabilities that the treatment will be undertaken privately.

Contact: Richard McKeown
Related item: J D Wetherspoon win vicarious liability appeal

The extent of an employer’s duty of care

Radoslav Pashamov v Leon Taylor & Anor [30.04.2025]

The decision highlights the extent of an employer’s duty of care, and that it does not necessary end at the point that an employee’s shift formally finishes.

The claimant was employed by the second defendant to work in their fruit fields. He was injured whilst exiting a work vehicle after his shift had ended and crossing the road, where he was struck by a third-party vehicle (the first defendant). The claimant exited the bus provided by their employer, to tell other colleagues the bus had arrived.

The second defendant argued that the claimant was ‘off duty’ at the time and that the claimant had crossed the road of his own free will. The evidence showed that he was specifically asked by his manager to notify the other workers that the bus had arrived, and that the second defendants’ risk assessment indicated it expected to be responsible for workers being transported.

In any event, it was found that the second defendant’s driver (for which the second defendant was vicariously liable) and the manager had ignored the requirement to collect from the designated pick up point, instead the bus was parked on the opposite side of the road to the farm.

The court found the second defendant owed a duty of care to the claimant despite the fact his shift had ended, which was breached by expecting him to cross a 60mph road and not in a designated safe crossing place. The accident was therefore foreseeable and the employer was found liable. Contributory negligence was assessed at 35%. The claim against the first defendant (third-party driver) failed.

Contacts: Joe McManus and Robert Corrigan

Direct claims under the Third Parties (Rights Against Insurers) Act 2010

Makin v Protec Security Group Limited and QBE Insurance (Europe) Limited) [11.04.2025]

The case serves as a helpful reminder that when an insurer faces a direct claim by a claimant/third party under the Third Parties (Rights Against Insurers) Act 2010, save for some specific exceptions, it is entitled to rely on the same policy defences it would have had the claim been made by its insured.

The claimant brought a claim against a nightclub’s security company’s insurers, pursuant to the Third Parties (Rights Against Insurers) Act 2010, after he was seriously injured whilst being ejected from the premises on 6 August 2017, after throwing a glass on to the floor.

Liability against the security company was found in his favour, and after the company entered liquidation, he then added its insurers to the claim and sought a declaration that its insurers were liable to pay his damages under the 2010 Act. The insurers defended the claim, based on breach of policy conditions.

The insurance policy required the security company to notify its insurers after an incident which “may give rise to a claim…”.

The insurers successfully repudiated the claim due to late notification. There was a delay of approximately 9 months in reporting the Letter of Claim to insurers, other correspondence was not forwarded on promptly and the insurer contended that the policy wording required the incident itself to be immediately reported when it occurred in August 2017. The judge accepted that whilst no reasonable insured could be expected to have formed the view the incident may give rise to a claim in the immediate aftermath (the claimant initially walked away from the scene, and there was no evidence the insured’s Director knew of the incident at the time). However, the court found that once the insured became aware its staff were being interviewed by the police about the incident (which was within 30 days of the incident), it would have known its staff were potentially being blamed for the incident. Thus, the claim condition was breached at that time.

Despite the claimant’s submissions, it was further held that the relevant conditions were valid conditions precedent to the insurer’s liability and there was no true ambiguity about the wording.

Contacts: Joe McManus and Robert Corrigan