Personal Injury Brief: latest decisions June 2020
A roundup of recent court decisions raising issues relating to a football club being vicariously liable for abuse carried out by a volunteer scout, two Supreme Court decisions on vicarious liability, the dismissal of an entire claim following a finding of fundamental dishonesty, and a cost reduction due to an exaggerated claim.
Reduced damages due to exaggerated claim
Morrow v Shrewsbury Rugby Union Football Club Ltd [30.04.20]
A personal injury claimant's costs award was reduced by 15% due to exaggeration of his loss of future earnings claim.
While watching a rugby match on the defendant's pitch, the claimant was struck on the head and injured by a rugby post. The defendant's liability was not disputed. The claimant claimed the accident had caused him to be unfit for work, and claimed for loss of future earnings. At trial, although the judge did not find the claimant dishonest, he was found to have exaggerated his loss of future earnings claim.
It was not disputed that the costs order should favour the claimant as the successful party; he had beaten the defendant's Part 36 offer by a considerable margin. However, the claimant’s Part 36 offer made a few weeks before trial was unrealistic. While the defendant's offer was too low, it was significantly closer to the damages actually awarded than the claimant's offer.
The claimant's exaggeration did not warrant a punitive costs offer, but it was given considerable weight. It was found that his exaggeration had prolonged the trial and the cross-examination of witnesses and the costs award should be reduced.
Contact: Mark Walsh
Vicarious liability: two key Supreme Court decisions
Barclays Bank plc v Various Claimants [01.04.20] and WM Morrison Supermarkets plc v Various Claimants [01.04.20]
The Supreme Court has reined in the onward march of vicarious liability.
- Barclays - the bank was found not to be vicariously liable for the alleged sexual abuse by a doctor that was engaged by them to conduct pre-employment medical examinations. The relationship between the bank and the doctor was not sufficiently close to an employment relationship to make it right and fair to impose liability for his conduct on Barclays. He was an independent contractor, running his own business.
- Morrisons - the employer was not vicariously liable for the criminal actions of its employee, Mr Skelton, as those actions were not connected to the sphere of activities he was employed to undertake.
Contact: Greg Woods
Finding of fundamental dishonesty relating to main injury leads to full dismissal of claim
Garraway v Holland & Barrett Ltd [01.04.20]
The claimant's personal injury claim against the defendant retailer was dismissed, as she had been fundamentally dishonest in the presentation of her case relating to her main alleged injury.
The claimant had been involved in an accident at the defendant's shop. As she was leaving the shop, she struck her head on a metal shutter in the doorway. Liability was admitted. The claimant claimed to have suffered a number of injuries including concussion, the loss of a tooth and ongoing back pain.
There was a considerable discrepancy between what the claimant said were her injuries and the documentary evidence and the medical experts' view of her injuries. Further, the defendant had obtained surveillance footage which contradicted the claimant's evidence and her account to each of the experts about her abilities.
The court decided that she had exaggerated her symptoms and misled the experts and found that she had been fundamentally dishonest in the presentation of her case and in the presentation of her condition both to the court and to the experts. That went to the root of the case and meant that the claim as a whole would be dismissed and she was made to pay the costs of the proceedings.
Contact: Martin Stockdale
Football club vicarious liable for the sexual abuse inflicted by a volunteer scout
DSN v Blackpool Football Club Ltd [13.03.20]
A football club was liable for sexual abuse inflicted on a 13-year-old youth player in 1987 by a volunteer scout whose role it was to spot and coach promising players below the minimum schoolboy signing age of 14 years. The scout, like most other non-playing staff, was unpaid, but the club's dire financial state meant that it relied heavily on volunteers for various functions and the relationship was akin to one of employment.
The claimant was introduced to the club by the scout in 1985 when he was aged 11. At that time, the scout had four convictions of indecent assaults on males. In 1987, the scout took a squad of young players, including the claimant, on tour. The claimant alleged that the abuse occurred on that trip.The court confirmed that the scout’s activity was exclusively on the club's behalf and the fact that he was not paid made it all the more striking as the club gave him an "aura" and "the run of the place", which created the trust in the scout that allowed him to abuse the boys. As such, the club was vicariously liable for the scout’s misuse of his position and the abuse he inflicted.
Contact: Helen Snowball