Personal Injury Brief: latest decisions June 2016

A round up of recent court decisions raising issues relating to catastrophic injury claims, fundamental dishonesty, highways, local authorities, occupiers’ liability and pre-action admissions of liability.

A round up of recent court decisions raising issues relating to catastrophic injury claims, fundamental dishonesty, highways, local authorities, occupiers’ liability and pre-action admissions of liability.

Catastrophic injury claim: welfare order required
Staffordshire County Council v SRK and others [24.05.16]

SRK was severely injured in a road traffic accident. He was awarded substantial damages that were paid to his property and affairs deputy. As a result of the accident, he lacked capacity to make decisions on his care regime. Applying the approach in Cheshire West [2014] this regime created a deprivation of liberty. The Court of Protection (COP) held that this was a deprivation of liberty which had to be authorised by the COP by it making a welfare order. The test the COP would apply was whether SRK’s care regime was the least restrictive option to best promote his best interests. This decision extends the remit of the state’s obligations to apply to safeguard vulnerable adults, who have a deputy appointed, even if living and cared for in a private capacity.

Contact:  Robert Tobin

View our full case review: Catastrophic injury claim: welfare order required

Fundamental dishonesty: claim struck out
Haroon v Saltco Ltd [05.05.16]

Kennedys acted for the defendant in its successful defence and counterclaim.

The claim arose from a road traffic accident involving one of the defendant’s vehicles. The claimant had an extensive history of pre-existing injuries, which he failed to disclose to the medical expert when examined. Also, one of the entries in the medical records recorded the claimant confirming that the accident had occurred as contended by the defendant. We argued that the claimant had been fundamentally dishonest and that the costs protection of qualified one-way costs shifting should be disapplied. In addition, as the claimant failed to attend the final hearing, he had obstructed the just disposal of the claim. The judge held that the claimant’s claim was fundamentally dishonest. The claim was struck out and the claimant was ordered to pay the defendant’s counterclaim and costs.

Contact: Malachi Beck

Highway claim: successful defence
Langhorne v London Borough of Merton and Williams [18.02.16]

Kennedys acted for the London Borough of Merton in its successful defence of this claim.

The claimant allegedly fell and suffered an injury whilst walking across the forecourt of a property. He alleged that this was as a result of stepping into a hole. We argued that, even if the forecourt was a highway, it was not maintainable at public expense, relieving the local authority of any duty to compensate the claimant. The judge agreed with our analysis of the law. There was no evidence proving that a highway maintainable at public expense had come into existence prior to 1949, when the National Parks and Access to Countryside Act 1949 came into force. In any event, the judge ruled that the forecourt was not a highway.

View our full case review: Successful defence of highway claim

Contact: Graham Meadows

Local authority: duty to protect from harm
CN and GN v Poole Borough Council [16.03.16]

Two children have won the right to proceed with a claim against their local council in relation to alleged suffering in the form of harassment and threats from a neighbour on a council estate. The council had housed both families on the estate. On appeal, the judge held that the decision in JD v East Berkshire [2003] had not been overruled by the judgment of the House of Lords in Mitchell and another v Glasgow City Council [2009] or the Supreme Court in Michael and others v Chief Constable of South Wales and another [2015]. As such, she was bound to apply the decision in JD v East Berkshire and allow the appeal. This has provided the children with the chance to fight their case to a full trial.

View our full case review: Local authority: duty to protect from harm

Contact: Louise Bedford

Occupiers’ liability: danger not obvious
Taylor v English Heritage [11.05.16]

In April 2011 the claimant was visiting Carisbrooke Castle on the Isle of Wight. As he attempted to walk down a steep informal pathway, he lost his footing and fell into the dry moat, sustaining a serious head injury. The Court of Appeal upheld the first instance decision in favour of the claimant. It held that the sheer drop from the pathway to the moat was not an obvious danger. The defendant was in breach of s.2 Occupiers’ Liability Act 1957 in failing to provide a warning sign. The decisions on causation and contributory negligence (at 50%) were also upheld. The Master of the Rolls commented that if an occupier is in doubt as to whether a danger is obvious, it may be well advised to take reasonable measures to reduce or eliminate the danger. However, the steps taken need be no more than reasonable steps.

Contact: Greg Woods

Pre-action admission of liability: increase in claim value
SE Wood v Days Health UK Ltd and others [09.05.16]

The claimant was paraplegic and relied on a motorised wheelchair. She alleged that, whilst she was using her wheelchair, the chair riser shot forwards, causing her to suffer a shoulder injury. Prior to issue of proceedings, loss adjustors instructed on behalf of the first defendant (D1) admitted liability. Subsequently D1 applied to resile from this admission of liability. The judge refused the application. She considered that the real ground for the application was the subsequent increase in the potential value of the claim, which was an inherent risk in any personal injury claim and, she held, not good reason for allowing the admission to be withdrawn. The admission was made on professional advice, following the opportunity to investigate, with D1 still able to bring appropriate contribution proceedings. In the interests of finality it should be held to that admission.

Contact: Richard McKeown

Read other items in Personal Injury Brief - June 2016