Personal Injury Brief: latest decisions February 2021
A roundup of recent court decisions raising issues relating to ‘lost years’ claims, the new burden of proof at inquests, late acceptance of Part 36 offers, and the voluntary acceptance of an obvious risk in occupiers' liability claims.
Court of Appeal overturns mesothelioma ‘lost years’ claim
Head v The Culver Heating Co Limited [18.01.21]
The Court of Appeal has offered useful guidance on the valuation of a ‘lost years’ claim.
The claimant, aged 60, had contracted mesothelioma due to asbestos exposure while working for the defendant in the 1970s. He was the managing director of a successful business. The claimant and his wife each held 45% of the businesses shares and the sons each held 5%. The claimant claimed general damages in the sum of £95,000 and damages under the lost years head came to just under £4.5million.
The defendant argued there should be no award at all, as the claimant’s earnings were capital rather than income and could be given away in his will. The High Court agreed, ruling that the claimant had suffered no loss of earnings since the business was so successful and as such, the income stream to the claimant’s family would continue after his death.
The Court of Appeal disagreed. The court held that the claimant could make a claim for loss of earnings as his income was considered the product of his own hard work and not the result of passive investment.
This decision illustrates the importance of not simply treating dividends as income from an investment but rather considering the reality and context of the claim. The decision also offers consistency as the same analysis is applied to both financial dependency and lost years claims.
Contact: David Bywater
Lower standard of proof now applies to coroners’ inquests
R (on the application of Maughan) v Her Majesty’s Senior Coroner for Oxfordshire [13.11.20]
The burden of proof required in order to reach the conclusion of suicide or unlawful killing at an inquest has been significantly altered following this Supreme Court decision.
This case concerned an inquest into the death of Mr James Maughan, who was found hanged in his prison cell on 11 July 2016. At the inquest, the coroner ruled that the short-form verdict of suicide should not be left open to the jury, as that conclusion could not be proven to the criminal standard. The jury reached a narrative conclusion, finding that the deceased had intended to hang himself.
The challenge to that finding has already seen both the High Court and Court of Appeal rule that the standard of proof required to reach a conclusion of suicide was the “balance of probabilities” rather than the higher criminal standard of proof “beyond reasonable doubt”. The Supreme Court has gone further still, finding that the civil standard of proof applies to all short-form and narrative conclusions, including unlawful killing.
This decision will be of particular concern for those who have been under scrutiny by the criminal authorities in relation to work-related fatalities, as there will likely be an increased number of unlawful killing conclusions. Such conclusions bring with them the likelihood of repeated scrutiny and may also result in a higher chance of prosecution.
Contact: David Wright
The operation of Part 36: the ‘heavy burden’ of disapplying the normal Part 36 consequences
Pallett v MGN Limited [19.01.21]
The underlying litigation was a libel action. The claimant offered to settle her claim in October 2020 ahead of a trial due to begin in January 2021. As with all standard Part 36 offers, the offer was open for acceptance for 21 days. The defendant deliberately delayed acceptance of the offer until the 22nd day.
The court was asked to accept the defendant’s proposition that because the defendant delayed, it was not now obligated to pay almost any of the claimant’s costs since the litigation commenced. The defendant pointed to the claimant’s alleged failure to engage with the settlement process as evidence of poor conduct. The judge held that the defendant had failed to establish that the alleged failure fell so short of the expected court standards to justify that the usual cost rule should be disapplied.
This decision serves as a reminder of the court’s discretion in deciding the liability for costs regarding the late acceptance of a Part 36 offer. Helpfully for defendants, the judge warned that this case “should not be taken as a green light for all claimants to decline to enter into negotiations before disclosure is complete. Such a posture would not be correct in every case”.
Contact: Joy Middleton
Occupiers' liability: voluntary acceptance of an obvious risk may not negate a claim
The White Lion Hotel (A Partnership) v James [15.01.21]
The claimant’s husband, who was a guest at the White Lion Hotel, tragically fell to his death whilst sitting on the windowsill in his room and leaning out of the window. The defendant pleaded guilty to offences under the Health and Safety at Work Act . The claimant then issued civil court proceedings under to Section 2 of the Occupiers' Liability Act  (OLA) for a failure to take reasonable care for her husband’s safety. The defendant denied liability. At trial, the claimant succeeded, subject to a reduction of 60% contributory negligence.
The Court of Appeal was asked to consider whether the admitted breach of health and safety law obliged the court to find a breach of the OLA. In the context of occupiers' liability, the court reviewed the scope of the general principle that a person of full age and capacity who chooses to run an obvious risk cannot claim against a defendant on the basis that the defendant has either permitted him to run that risk or not prevented him from doing so.
The judge held that the hotel did indeed owe a duty to the claimant, and that there was a foreseeable risk of serious injury due to the state of the premises. However, the court also held that the claimant could foresee the danger of falling and that in choosing to act as he did, he was also blameworthy for a failure to take reasonable care for his own safety.
This judgment clarifies that whilst a criminal conviction of an occupier who is found in breach of their statutory duty is a relevant factor, it does not follow that civil liability automatically follows an unchallenged criminal conviction in civil proceedings. The judgment also provides a reminder to defendants not to rely too heavily on the principle of “no duty in respect of obvious hazards” in occupiers’ cases.
Contact: Charles Martin