Personal Injury Brief: latest decisions December 2021
A roundup of recent court decisions raising issues relating to avoidance of employers’ liability policies, care workers making arrangements to pay for the services of a sex worker, the ‘tort gateway’ and accidents abroad, occupiers’ liability relating to trespassers, ‘uncontroverted’ expert evidence, a landmark Supreme Court decision on QOCS, and workplace traumatic brain injury.
In appropriate cases employers’ liability policies can be avoided
Komives and Varhelyi v Hick Lane Bedding Limited (in administration) and AmTrust Europe Limited [24.11.21]
The tragic underlying case concerns two victims of trafficking and modern slavery, who were sent to work at Hick Lane Bedding (HLB). HLB became insolvent but at the time of the incident, HLB had cover under an employers’ liability policy from its insurer, AmTrust Europe Limited (ATE). However, ATE had avoided the policy with HLB due to material non-disclosure and misrepresentation as a result of the undisclosed trafficking of labour.
At a trial of preliminary issues, the court held that ATE were entitled to avoid the policy and there was no valid claim against ATE under the Third Party (Rights against Insurers) Act 1930. The claimants appealed. The High Court, however, agreed with Master Davison.
This judgment serves as a useful reminder of the not always appreciated point that in appropriate cases, an employers’ liability policy can be avoided by insurers. Here, the material non-disclosure and misrepresentation by the insured regarding its use of trafficked labour and modern slavery provided sufficient grounds for an insurer to avoid the employers’ liability policy.
Contacts: Rachel Moore and Clare Kyprianides
Related item: The High Court provides clarity on the avoidance of employers’ liability policies
Care workers cannot make arrangements to pay for the services of a sex worker
The Secretary of State for Justice v A Local Authority & Others [22.10.21]
In terms of background, a 27-year-old autistic man with learning disabilities (C) lacks capacity to manage his legal and financial affairs and is subject to Deprivation of Liberty Safeguards, but does have capacity to consent to sex. C informed his carer that he wanted to contact a sex worker.
The Lord Chief Justice found that the words “causes or incites” in Section 39 of the Sexual Offences Act 2003 ought to carry their ordinary meaning and therefore, if the care worker made arrangements for securing the services of a sex worker, that would put them at risk of prosecution.
Whilst this judgment reaffirms the position that the costs for provision of sex workers are irrecoverable, it remains to be seen if this will be the end of claims being made for sexual services.
Contacts: Antony French and Holly Whittick
Related item: The “troubled waters of sex workers, care workers and mental capacity” – the Court of Appeal provides clarity
Supreme Court provides clarity on overseas accidents and the ‘tort gateway’
FS Cairo (Nile Plaza) LLC (Appellant) v Brownlie (as Dependant and Executrix of Professor Sir Ian Brownlie CBE QC) (Respondent) [20.10.21]
The Supreme Court has provided clarification as to the circumstances where an English court will have jurisdiction when an accident happens abroad. It also offers useful guidance as to whether it is necessary for a claimant to plead the applicable law of the country where the accident has happened.
Sir Prof Brownlie QC and his daughter were fatally injured during an excursion which had been organised by the hotel, whilst they were on holiday in Egypt. The court agreed with the claimant that a broad interpretation should be applied to the wording of CPR PD 6B paragraph 3.1(9) such that any subsequent loss of earnings and care requirements etc suffered in England would be sufficient to meet the ‘tort gateway’ test. Moreover, the court found that in the early stages of litigation, it was not necessary to plead in detail the applicable law of the country where the accident happened.
This judgment will mean that more claimants will be able to meet the tort gateway test. However, there will continue to be scope to challenge jurisdiction on the basis of forum conveniens and this is likely to be a fertile area of dispute in jurisdiction claims in the future.
Contacts: Joe McManus and Tim Newman
Related item: Accidents abroad: Supreme Court provides clarification on the tort gateway
Occupiers’ Liability Act 1984 – a duty of care is not owed to trespassers
Ovu (Administratrix for the Estate of O (Deceased)) v London Underground Limited [13.10.21]
The High Court recently considered the meaning of ‘trespasser’ and the relevance of a person’s state of mind and intention for the purposes of the Occupiers’ Liability Act 1984.
O was travelling home in an intoxicated condition. O left the underground platform, passed through two signposted barriers and entered an emergency exit route without the defendant’s permission. O tragically fell down a staircase and sustained a fatal head injury.
The court found that O was a trespasser at the time of his death and as such, no duty of care was not owed to O in respect of the risk of falling down the stairs and sustaining injury.
This decision highlights that an intoxicated individual cannot use their self-intoxication as a grounds for not knowing they are entering a restricted area.
Further, an individual who enters a restricted area as a trespasser but changes their mind and no longer intends to be a trespasser does not escape their trespasser status while still in the restricted area.
Contacts: Jennifer Harris and Christopher Hale
Related item: Occupiers’ liability and trespassers
The court is entitled to evaluate undisputed expert evidence
Griffiths v TUI (UK) Limited [07.10.21]
The claimant brought a claim against the tour operator, TUI, for personal injury on the basis that he had suffered gastric illness caused by food and/or drink provided as part of the package holiday contract.
At trial in the first instance, the claimant relied on expert medical evidence from a microbiologist on causation. The defendant did not adduce expert evidence, but made submissions as to the quality of the expert opinion evidence relied upon by the claimant.
The majority allowed the appeal. Delivering the leading judgment, Lady Justice Asplin did not consider it unfair that a defendant sought to challenge expert evidence in closing submissions. It was a high risk strategy, but the defendant was entitled to submit that an essential aspect of the case had not been proved to the requisite standard.
The result of the Court of Appeal's decision is positive for defendants in relation to all expert evidence in civil litigation, not just ‘holiday sickness’ claims. As it stood, the decision of the High Court created issues in relation to expert evidence. This judgment has restored the status quo - defendants will be able to challenge a claimant's expert evidence at trial without necessarily obtaining their own evidence.
Contact: Justin Collins
Related item: Court of Appeal’s approach towards ‘uncontroverted’ expert evidence
Defendants are not entitled to offset 'costs against costs' in QOCS cases
Ho (Respondent) v Adelekun (Appellant) [06.10.21]
The Supreme Court has determined that defendants, in cases to which qualified one-way costs shifting (QOCS) apply, are not entitled to seek set-off of their own entitlement to costs against claimant’s costs entitlement where the defendant’s costs exceed the level of damages recovered by the claimant.
Plainly, this is a disappointing judgment for insurers who may, in some cases, see the value of costs orders made in their favour depreciated to the level of damages recovered by the claimant.
This decision will lead, in many cases, to alterations to litigation strategy given the more limited opportunity to recover costs.
Contact: Lewis Thompson
Related item: Supreme Court decision on QOCS – disappointing news for defendants
Post-collision footage assists court in finding mild traumatic brain injury
Jeremy Stansfield v BBC [01.10.21]
The claimant was injured whilst acting as a ‘crash test dummy’ during a science programme for the BBC. He partook in two forward-facing and two rearward-facing simulated crashes into a metal post at impact speeds of between eight and 11mph.
It was the claimant’s case that the force of the impact led to a minor traumatic brain injury (mTBI) with particular audio vestibular and psychological symptoms. The defence team did not put forward an alternative explanation for the claimant’s symptoms.
Despite a total of six MRI brain scans revealing no abnormality, no clear evidence of post-traumatic amnesia, loss of consciousness or an impaired Glasgow Coma Scale score, the court found that the claimant had indeed sustained an mTBI.
This judgment does not, in our view, alter the landscape for defendants in mTBI claims because this was “a highly unusual mechanism of injury”. Further, the court had the advantage of actually seeing the claimant displaying signs of neurological impairment very shortly after the insult, by way of the post-collision filming.
Contact: Mark Walsh and Ben Appleton
Related item: Stansfield v BBC – A crash test but not a car crash for defendants