Personal Injury Brief: latest decisions November 2020

A roundup of recent court decisions raising issues relating to calculation of accommodation claims, uncontroverted expert evidence, withdrawal of admissions, the effect of liquidation and restoration on limitation periods, withdrawal of Part 36 offers, striking out of claims, and fundamental dishonesty.

Enduring guidance: Court of Appeal rules on quantifying accommodation claims

Swift v Carpenter [09.10.20]

The long-awaited decision, in what has become a test case for accommodation claims, has been handed down. The Court of Appeal allowed the appeal, deciding that a market valuation is a more appropriate approach towards establishing the current value of a reversionary interest, and applying a 5% discount rate.

Recognising the change in economic conditions that have prevailed since the decision in Roberts v Johnstone [1989], the court recognised the effect of negative discount rates which it said render the earlier guidance ineffective in achieving its desired aim. Damages payable to the appellant were increased by £801,913.

The court accepted that its guidance should not be regarded as “a straightjacket” to be applied in all cases. However, for longer lives and during conditions of low positive or negative discount rates, the guidance should be regarded as “enduring”.

Contact: Rob Tobin

Change of law not justification for withdrawal of admissions

J v A South Wales Local Authority [14.09.20]

The claimant successfully appealed a decision in which permission had been granted to the defendant to resile from three admissions of liability.

The factual background to the case is somewhat complex but concerned alleged negligence in the course of care provided by the local authority to the claimant. The Circuit Judge had previously allowed the defendant’s application to withdraw those admissions following a change of law as regards to the existence or otherwise of the duty of care relied upon by the claimant.

The reasoning of the lower’s court decision was accepted up to a point, however the appeal was allowed on the basis of the prejudice that would otherwise result to the claimant, particularly in respect of the evidence given the time between the date of the original admission and the application.

Contact: Keith Gaston

Uncontroverted expert evidence: presumption of acceptance by the court

Griffiths v TUI UK Limited [20.08.20]

The underlying case concerned a claim for food poisoning and subsequent gastric illness. At trial, the claimant relied on a medical report, which was uncontroverted by virtue of the court accepting the factual basis of the report being accepted. The defendant did not adduce their own evidence or cross-examine the claimant’s expert. The claim was dismissed due to a failure by the claimant’s expert to fully consider all potential causes of illness.

The claimant appealed on the basis that, where an expert report is uncontroverted, subject to exceptional circumstances, it should be accepted by the court. Mr Justice Martin Spencer agreed and allowed the appeal: the court is not entitled to subject an uncontroverted report to same kind of analysis and critique as if it were evaluating a controverted or contested report where it had to decide the weight of the report - “once a report is truly uncontroverted, that role of the court falls away”.

Where an uncontroverted report complies with CPR Part 35 and provides more than a bare assertion, the report will be held in favour by the court. Notwithstanding a report’s shortcomings, if the defendant has not (as here) sought to challenge by way of their own evidence, or by cross-examination, the court must accept the same.

TUI have filed a notice of appeal seeking permission to appeal to the Court of Appeal. Kennedys act for the defendant, TUI UK Limited.

Contact: Justin Collins

Limitation: the effect of liquidation and restoration

Holmes v S&B Concrete Ltd [20.08.20]

The judgment provides helpful clarification on whether limitation is suspended when a company is wound up.

In this noise induced hearing loss claim the court distinguished between those cases in which the claim fell within the compulsory employers’ liability insurance limit of indemnity (and therefore ‘outside of the liquidation’) and those cases involving a claim within the liquidation. The effect being that limitation in this case had not ceased to run before the claim form was issued.

Helpfully for defendants, this judgment confirms that where claimants bring personal injury cases more than three years after the accrual of the cause of action/date of knowledge (as applicable), they will not in the majority of circumstances be able to escape the claim being statute barred.

Contact: Alexandra Riley

Withdrawal of Part 36 offers: ‘reasonableness’ and liability for costs

Blackpool Borough Council v Volkerfitzpatrick Limited [03.08.20]

The judgment in this High Court case serves as a further illustration of the intricacies of Part 36. The court was asked to consider the impact of a withdrawn Part 36 offer and how the ‘reasonableness’ of rejecting such an offer should influence the liability for costs.

Addressing the potential relevance of “tactical reasons” for the withdrawal of a Part 36, the judge concluded the offer in this case was withdrawn for such reasons, however held that “there is no basis for thinking that it would have been accepted after that date even if not withdrawn.”

Whilst not altering the decision in these circumstances, the reasons for withdrawal of a Part 36 offer may lead to uncertainty and further disagreement between parties disputing costs.

Contact: Lewis Thompson

Court of Appeal overturns strike out decision

Barry Cable v Liverpool Victoria Insurance Co Ltd [31.07.20]

This decision illustrates the considerable reluctance of the courts to strike out claims, with such orders whilst available, being very much orders of last resort.

This claim was eventually pleaded at approximately £2.2 million. However, it was not until four days prior to expiration of a stay that had been obtained as limitation approached, that the claimant’s solicitor first indicated that the claim should no longer proceed via the MoJ portal process.

The court identified three separate abuses of process in this claim, but notwithstanding this, concluded that the prejudice to the defendant amounted to no more than delay, and the appropriate sanction was to deal with this by way of costs.

Contact: Richard McKeown

Fundamental dishonesty: an important reminder of the proper test

Tess Garraway v Holland & Barrett Ltd [01.04.20]

The judgment in this case is an important reminder of the proper test to be applied when assessing whether a claimant has been fundamentally dishonest. If what the claimant has said and done is objectively dishonest - and misrepresentation and exaggeration can be part of that definition – then the claim is fundamentally dishonest.

The successful defence of the claim, despite the admission of breach of duty, was achieved by developing a chronological timeline. This consisted of very detailed, forensic analysis and cross-referencing of the claimant’s lay witness statements, medical records, how she described her functional incapacity to the experts, and overlaying with the surveillance footage.

Contact: Suzanne Prescott

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