Personal Injury Brief: latest decisions - June 2022
A roundup of recent court decisions raising issues relating to provisional damages and mitigation of loss where a claimant is at risk of dementia, the importance of issuing claims in the correct court, a common sense approach taken in a Scottish injury case, and participant v participant incidents in competitive sport.
Provisional damages, mitigation of loss and risk of dementia
Mathieu v Hinds and Aviva Plc [13.04.22]
The decision of Mrs Justice Hill addressed a number of difficult quantum matters which are common to brain injury litigation.
The claimant, who was studying for a Master's degree in Fine Art, suffered a significant brain injury as a result of a road traffic accident in November 2015. Although he made a very good recovery, he pursued a claim for compensation (over £30 million) on the basis that ongoing symptoms of headaches, fatigue and cognitive issues meant that he could not produce the art he would have ‘but for’ the accident.
Although the claimant sought provisional damages to cover the suggested risk of dementia arising from the traumatic brain injury, Mrs Justice Hill took the view that based on the current state of science, the claimant could not show that on the balance of probabilities “the existence of a more than fanciable chance that TBI will lead to him developing dementia”. The provisional damages award was therefore dismissed.
Another key issue in contention related to the claimant mitigating his loss. By refusing to consider medication in an effort to reduce his headaches and not undertaking further fatigue management sessions, the defendant argued the claimant had failed to mitigate his loss. The claimant, on the other hand, explained that his refusal was based on the risk of the medication making him feel drowsy which would further interfere with his artistic process.
Whilst the defendant’s expert was of the view that the medication was likely to succeed and the claimant’s expert thought that it was certainly worth trying, the Judge concluded that there was insufficient evidence that the claimant was acting unreasonably or that the medication would have made any difference. Such an outcome reinforces the point that it is a high hurdle for the defendant to prove failure to mitigate.
Contacts: Mark Walsh, Ben Appleton
Related item: Dementia risk and provisional damages
The importance of issuing claims in the correct court
Kolton v Paramount LTD trading as Esplanade Hotel [08.04.22]
This recent judgment of Mr Justice Simons is a notable one for both insurers and business owners as it contains welcome commentary on quantum and the duty on plaintiffs to issue proceedings at the appropriate court level.
The plaintiff alleged she suffered a serious scalding injury to her upper back and left shoulder after the kettle in her hotel room “burst” while she was making a cup of tea.
Liability was denied by the defendant, who argued that there was no evidence of a limescale build-up at the joint engineering inspection and that, regardless of this, the kettle was not sealed to the environment, meaning the type of reaction described by the plaintiff was not possible, even if the spout filter had been blocked as alleged. The court agreed and dismissed the claim.
Interestingly, Mr Justice Simons could not understand why the claim had been brought in the High Court rather than the Circuit Court in circumstances where he would have valued the injury below €30,000. He stated that it is in the public interest for claims to be brought in the lowest court having jurisdiction to determine them, to ensure the proper and efficient administration of justice and to minimise costs, and any plaintiff who fails to do so runs the risk of a differential costs order being made against them.
Contact: Ólan Kelleher
Related item: Differential Costs Orders and the importance of issuing proceedings in the correct court
Common sense approach prevails in a Scottish injury case
MacKenzie v The Highland Council [16.02.22]
This case concerns an accident in which the pursuer, a teacher, suffered a fracture to her right elbow whilst participating in an outdoor skills training course with her colleagues. The question for the court was whether the accident was due to the fault of the defender.
By way of background, the pursuer attended a training course in physical education in Inverness run by her employer, the Highland Council. Prior to the start of course, the organiser had prepared a risk assessment which included a specific entry relating to “staff colliding”.
During the game, the pursuer tripped over another participant and fell onto the tarmac sustaining injury. She alleged that the defender failed to discharge its duty of care to minimise the risk of injury, and in particular, failed to assess the risk of accident while the game was being played. However, the Sheriff concluded that the accident was not caused by the fault and negligence of the defender noting that “people need to exercise a bit of common sense and look around them”.
Whilst it is important to remember that these cases will ultimately turn on their individual facts, this particular accident was just that, an accident.
Contacts: Jenna Sturrock, Tim Lennox
Related item: Accidents happen…
Jockey found negligent for fellow jockey’s injuries
Tyclicki v Gibbons [21.12.21]
The High Court has reinforced that participants in competitive sport owe one another a duty of care following a collision between two jockey’s mounts which left the claimant paraplegic.
The claimant and defendant were both successful and experienced professional flat race jockeys. The claimant alleged that during the race at Kempton Park, the defendant manoeuvred his horse into the path of the claimant’s mount, which was running into a gap between his horse and the edge of the track as they turned on to the home straight. Tragically, the claimant was trampled after falling from his mount.
As the defendant had not been found in breach of the rules of racing, he argued that he shouldn’t be found negligent. This argument was rejected by HHJ Walden-Smith as only one factor of consideration in determining the decision on the basis of all the facts. The court concluded that the defendant knew of the presence of the claimant, if not before, at the very least at the time of the initial coming together, some four seconds prior to the second collision. Despite this, the defendant continued to get closer to the inner rail. Ultimately, the court found in favour of the claimant.
Although concerns were raised around an “opening of the floodgates”, making it difficult for any sportsperson to be confident that they would be able to compete as hard as they can for fear that they could be sued if someone suffered an injury, the court stressed that cases will ultimately turn on their own particular facts and, as such, this case “does not set a precedent either within horse-racing or in sport generally”.
Contacts: Conor Kenny, Gavin Henderson
Related item: Breach of duty in sports – an insurmountable hurdle?