Personal Injury Brief: latest decisions - March 2023
A roundup of recent court decisions raising issues relating to recovering contributions from Part 20 defendants, Part 36 split liability offers, how to approach the valuation of low value motor claims involving whiplash and non-whiplash injuries, and the test for an ‘unusual and unexpected’ event within the Montreal Convention.
Council successfully recovers a contribution from foster parents in failure to remove claim
SS v Essex County Council and Ors [28.02.23]
A local authority, Essex County Council (ECC), has successfully secured a contribution from foster carers in relation to the neglect and malnutrition that the claimant, SS, suffered whilst in their care.
In terms of background, SS alleged that she was subjected to neglect, physical and sexual abuse and was falsely imprisoned at the hands of her foster carers whilst under the care of ECC between 1981 and 2009. SS sought to recover damages from ECC in the sum of £7 million.
ECC admitted both negligence and vicarious liability and on 18 October 2022, the court approved a settlement in favour of SS in the sum of £325,000. ECC also made a £200,000 interim payment towards costs. Subsequently, ECC pursued a Part 20 claim to recover its outlay from the foster carers. This was on the basis that they were responsible for “the same damage” for which ECC had admitted liability.
The judge held that there was insufficient evidence to prove that SS was physically or sexually assaulted whilst in foster care, or that the balance of probabilities, SS was emotionally abused by the foster carers. However, the Judge held that the foster carers were responsible for the neglect and malnutrition to SS and it followed that they were liable to ECC for this damage.
The High Court valued damages for pain and suffering caused in respect of malnutrition and neglect at £14,000. The Judge agreed with ECC that a contribution should also be made towards the costs paid to SS, assessed at £10,000. He therefore concluded that the foster carers were liable for a contribution in the sum of £24,000.
This is an important decision for local authorities and a good reminder that consideration should be given to pursuing a recovery and/or contribution from negligent foster carers. However, there are a number of points to reflect on in terms of the impact of admitting liability, the importance of gathering evidence and procedural aspects of dealing with contribution claims.
Contacts: Sarah Bradley
Related item: Council successfully recovers a contribution from foster parents in failure to remove claim
High Court clarifies a liability only offer cannot be compared with an all in Part 36 offer
Mundy v TUI UK Limited [23.02.23]
The High Court recently considered the question: what happens when a claimant does less well than a defendant Part 36 offer made in full and final settlement of all of the claim, but the claimant still considers that he won because he had made a liability only offer?
The claimant sought damages for ‘holiday sickness’. His claim was advanced at £35,000, and he made Part 36 Offers to compromise all of his case at £20,000, and liability only at 90/10, neither of which were accepted. About 18 months before trial, the defendant made a Part 36 Offer to compromise all of the case at £4,000. At trial the claimant was awarded damages in the sum of £3,805.60, so he won his case, but ‘lost’ on the defendant’s Part 36 offer.
The claimant appealed, contending that he was the real winner because he had won on his liability only offer, and adding relevant penalties to the judgment sum, should have increased his award to £4,100, hence beating the defendant’s offer.
The High Court dismissed the claimant’s appeal. The court considered that the liability only offer, in the circumstances of the index matter was an attempt to unilaterally impose an insurance policy to reverse the losses otherwise provided for by CPR 36.17. The court held: “It is, in other words, an attempt to use CPR 36.17 against itself contrary to both its letter and its spirit”.
In a binary case, a liability only offer will not be compared with an all in Part 36 offer. The ‘winner’ when Part 36.17 is in play, will depend on comparing financial offers made with the judgment sum. It is possible, albeit unlikely, that a liability only offer will be considered as to whether it is then unjust to make the award.
Contact: Justin Collins
Related item: What is the costs position if a claimant makes a Part 36 liability only offer at 90/10?
Important Court of Appeal decision on the approach to mixed injury cases
Rabot v Hassam and Briggs v Laditan [20.01.23]
The recent decision by the Court of Appeal in Rabot v Hassam and Briggs v Laditan [20.01.23], has provided some certainty on how to approach the valuation of low value motor claims involving whiplash and non-whiplash injuries.
The Court of Appeal has now clarified that the correct approach is for both the whiplash and non-whiplash injury to be quantified separately, added together and then a deduction applied for overlap of pain suffering and loss of amenity in the usual way. However, the leading judgment provided by Nicola Davies LJ held one significant caveat:
“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”.
It is the above point that has created the most positive response from the claimant market and the greatest concern from the compensator side.
Whilst the guidance from the court may assist defendants to reach settlement in mixed injury cases which have been ‘on hold’ it is inevitable that the overall award will be higher. Furthermore, it is likely that defendants will face an increase in claims where ‘other’ injuries are alleged boosting the overall value of the claim and potentially bringing the total value of the claim close to the upper limit of the OIC portal of £5,000 for injury.
Shortly after the judgment was handed down, the Justice Committee launched an inquiry considering the effect of the whiplash reforms. There is a distinct possibility that appeal to the Supreme Court may well be overtaken by the inquiry and subsequent report.
Contact: Ian Davies
Related item: Court of Appeal provides further guidance on mixed injury cases, but what does this mean for fraud practitioners?
High Court clarifies the test for "unusual and unexpected’ accident within the Montreal Convention
Arthern v Ryanair DAC [16.01.23]
On 16 January 2023, the High Court provided clarification on the test to be applied in determining whether an event resulting in bodily injury during carriage by air amounts to an accident within the meaning of the Montreal Convention 1999 (the Convention).
By way of background, English case law has interpreted this to be an unusual or unexpected event external to the passenger and outside of the normal operation of the aircraft.
In this case, the claimant was a passenger on a Ryanair flight. Ambient temperatures were below freezing and the aircraft had been de-iced prior to departure. During the flight, the claimant left his seat and slipped in liquid by the cabin door, sustaining injury.
Ryanair was successful at first instance; the judge held that presence of a mixture of water and de-icing fluid on the cabin floor at the entrance of the aircraft was not unusual or unexpected. On appeal, Mrs Justice Farbey held that the assessment of ‘unusual or unexpected’ is from the perspective of the ordinary, reasonable passenger; this passenger must be regarded as a person with experience of commercial air travel and with reasonable knowledge of established or common airline practice. Using this test, Mrs Justice Farbey held that the events did not amount to an accident within the meaning of the Convention and dismissed the claimant’s appeal.
Ultimately, evidence as to established or common airline practice to support a defence of ‘no accident’ may be the key area for debate.
Contacts: Mark Welbourn and Stuart Farlow
Related item: Clarity provided on test for "unusual and unexpected" event under Montreal Convention