Personal Injury Brief: latest decisions June 2021

A roundup of recent court decisions raising issues relating to interpreting insurance policy exclusion clauses, Animals Act claims, “time work” for the purposes of the national minimum wage, tour operator liability for deliberate acts of suppliers’ employees and “substantial injustice” in fundamental dishonesty claims.

Exclusion clauses: deliberate doesn’t always mean deliberate 

Burnett or Grant v International Insurance Company of Hanover Ltd [23.04.21]

The Court of Appeal has offered useful guidance on the principles of interpreting insurance policy exclusions.

Mr Grant was killed by a door steward after being placed in a chokehold during an altercation. The insurer sought to rely on the exclusion of “liability arising out of deliberate acts wilful neglect or default” of an employee, on the basis that the door steward must have intended some injury or been reckless as to causing injury.

The Supreme Court held that insurance exclusion clauses are interpreted objectively from the perspective of a reasonable person, with the background knowledge reasonably available when the contract was entered into. The court interpreted a “deliberate act” to mean carrying out an act intending to cause injury.

This decision illustrates how exclusions are interpreted narrowly and how difficult they are to rely on. If insurers wish to try and exclude cover for reckless acts or omissions, this would need to be expressly stated. However, in the majority of cases, insurers will likely have a tough time proving that an act or omission was reckless rather than simply negligent.

Contact: Alex Riley and Lorne Folick

Related item: Construction of “deliberate acts” exclusion clauses

Welcomed clarification on the Animals Act 1971: characteristic behaviour required

Ford v Seymour-Williams [19.02.21]

The claimant, who at the time was an employee of the defendant, was riding a horse which was kept at the defendant’s premises when the horse reared and fell backwards onto the claimant. The claimant sustained severe injuries and the horse died soon after.

The main area of contention was whether this accident could be caught by Section 2(2)(b) of the Animals Act 1971 which states “the likelihood of the damage or of its being severe was due to characteristics of the animal which are not normally found in animals of the same species or are not normally so found except at particular times or in particular circumstances.”

The claimant’s argument was that it does not matter whether the horse reared as a result of a “cardiovascular event or simply out of disobedience”. Rather, the defendant had knowledge that horses can rear in either of those circumstances and that is sufficient to satisfy the terms of Section 2(2) which imposes strict liability for damage caused by animals which do not themselves belong to a dangerous species. The defendant’s case was that the most likely cause of the horse’s death was a cardiovascular catastrophe which cannot amount to characteristic behaviour, as required by the Act.

The court held that although the claimant was acting in the course of her employment at the time of the accident, she did not satisfy the requirements of Section 2 (2) of the Animals Act 1971 so as to impose strict liability on the defendant for her injuries.

The case will have a significant impact on future Animals Act claims where the circumstances leading to injury are unclear and will be a welcomed judgment across the equine and rural insurance industry.

Contact: Hazel Leeson

Related item: Equestrian and other domestic animal claims – a glimmer of hope to 'rein' in the Animals Act 1971

When does sleep constitute 'work'?

Royal Mencap Society v Tomlinson-Blake [19.03.21]

The Supreme Court has ruled that time spent sleeping by a sleep-in care worker does not attract the national minimum wage (NMW).

Unanimously dismissing the appeal, the Supreme Court agreed with the position taken by the Court of Appeal, namely that sleep-in time should not be counted for the purposes of the NMW. The court held that simply being present at work does not necessarily mean someone is engaged in “time work” for the purposes of the NMW Regulations. If a worker is called upon to attend to someone’s needs during a sleep-in shift, that time will count as “time work”.

This is an important case for many organisations who operate in the social care sector, as if the judgment had gone against them, there would have been a lot of back pay claims and an increased cost of care.

Contact: Amanda Beaumont

Related item: Care workers who ‘sleep in’ are not entitled to the national minimum wage for the duration of their shift

Tour operator liable for the criminal act of a supplier's employee

X v Kuoni Travel Limited (ABTA intervening) [18.03.21]

This case relates to whether a travel operator is liable in contract, under the Package Travel, Package Holidays and Package Tours Regulations 1992 for a sexual assault that occurred at a hotel when the claimant was on holiday.

As the Regulations derive from the EC directive 90/314, the Supreme Court referred the case to the Court of Justice of European Union (CJEU). The CJEU confirmed that tour operators are unable to rely upon the unforeseeable event defence for deliberate acts of hotel employees whilst delivering the holiday contract.

The CJEU’s judgment limits the circumstances in which defendant tour operators can avoid liability for the acts of a supplier’s employee.

In terms of next steps, the proceedings are not yet concluded. The Supreme Court will now proceed to consider the questions raised by the appeal and the CJEU preliminary ruling and make its final determination.

Contacts: Claire Mulligan and Florrie Southgate

Related items: 

Fundamental dishonesty - the risk of exaggerating symptoms

Robert Sudale v Cyril John Ltd [05.02.21]

The County Court has handed down an important judgment dealing with the question of “substantial injustice” within Section 57(2) of the Criminal Justice and Courts Act (CJCA) 2015.

The claimant, who was employed as a painter and decorator by the defendant claimed damages for personal injuries sustained in an accident at work.

The defendant argued that the claimant had been fundamentally dishonest, relying on surveillance showing that the claimant was not suffering symptoms to the extent previously stated.

The claimant claimed that the defendant’s conduct was also worthy of criticism arguing it was comparable to his own conduct and as such, there would be “substantial injustice” should the claimant’s claim be dismissed. The court disagreed, finding that there was no “substantial injustice” in the operation of Section 57, dismissing the entire claim and ordering the claimant to pay 90% of the defendant’s costs on the indemnity basis.

This case highlights the strength of covert surveillance in claims where a claimant seeks to persuade the court of ongoing symptoms and disability where their injuries have largely improved. The outcome of this case also confirms that the application of Section 57 relates only to the claimant’s conduct, and not that of the defendant.

Contacts: Mark Walsh and Sandip Sidhu

Related item: Fundamental dishonesty and exaggerating injuries: a cautionary tale

Read other items in Personal Injury Brief - June 2021