Personal Injury Brief: latest decisions March 2022

A roundup of recent court decisions raising issues relating to driving at an excessive speed, vicarious liability, judicial consideration of claims under the Human Rights Act in relation to ‘failure to remove’ cases, fundamental dishonesty in the context of failing to volunteer information, the Brussels recast regulation, and Animals Act claims.  

Driving over the speed limit is not inherently negligent in itself

Sandra Cameron & Another v Ifeanyi Nwankwo & Another [21.01.22]

This Court of Session decision relates to a road traffic case, Sandra Cameron & Another v Ifeanyi Nwankwo & Another [21.01.22], involving a failure to keep good lookout, maintain lane discipline and the applicability of contributory negligence.

The first defender drove through a set of green traffic lights, turned onto the street where the pursuers were located and struck the first pursuer causing serious and permanent injuries. It was claimed the first defender had been driving in the wrong lane and at excessive speed.

The judge preferred the pursuers’ expert evidence, and considered it to be on balance likely that the first defender had cut the corner while manoeuvring. Based on this conclusion, the judge found it less important to conclude the speed of the car, although it was likely the driver was travelling at excessive speed. It was, interestingly, noted that the locus of a city centre at night was not sufficient to conclude driving at 30mph in a 20mph zone was negligent.

The judge determined that both parties were at fault. Due to the first pursuer crossing a carriageway instead of using the nearby pedestrian crossing, wearing dark clothing and having ought to be aware that she would be difficult to be seen by approaching drivers, contributory negligence was assessed at one third.

Related item: Scottish Court assesses contributory negligence in Pedestrian v Car accident

Employer not liable for injuries caused by practical joke

Chell v Tarmac Cement and Lime Limited [12.01.22]

This judgment provides further clarity on what actions give rise to vicarious liability and is an important decision on when employers can be held liable for horseplay gone wrong.

The claimant was employed as a fitter by Roltech Engineering Limited. He was contracted out to work for the defendant, Tarmac Cement and Lime Limited, and worked alongside Tarmac’s own fitters. Tensions arose between the contracted and Tarmac’s fitters until one of the latter put two ‘pellet targets’ on the bench close to the claimant’s right ear and hit them with a hammer. The claimant sustained a perforated right eardrum, noise-induced hearing loss and tinnitus.

The court held that there was not a sufficiently close connection between the act which caused the injury and the work of Tarmac’s employee to make it fair to rule that Tarmac were vicariously liable. Further, there was no reasonably foreseeable risk of injury from ‘horseplay’ that would deem Tarmac liable to the claimant.

This decision is reassuring confirmation for defendants that vicarious liability decisions are continuing the recent trend (as seen in the cases of Shelbourne, Morrisons and Barclays) of limiting what actions employers can be deemed vicariously liable for and is a helpful reminder that not every injury sustained at the work place will be the defendant’s fault.

Related item: When work pranks go wrong, is the employer liable?

High Court rejects 'failure to remove' Human Rights Act claim

AB v Worcestershire County Council & Anor [20.01.22]

This case provides detailed judicial consideration of possible resulting claims under the Human Rights Act (HRA) 1998 in relation to a ‘failure to remove’ case.

The claimant, AB, brought a claim against the defendant councils, alleging that he was abused and neglected whilst in the care of his mother. AB claimed that both local authorities should have applied for a care order to remove him from his mother’s care earlier than they did, and to protect him from harm in line with Articles 3 and 6 of the HRA.

In relation to Article 6, the court found that the defendants had not done anything to interfere with AB's rights or taken any action in relation to which such a dispute could have arisen. Further, Obi J found that most of the incidents which were considered by the local authorities were not sufficient to fall under Article 3. Both claims were therefore struck out.

Looking to the future, potential claimants will need to establish that the local authority assumed responsibility for them, in addition to overcoming the high threshold to prove a breach under Article 3, which will be difficult in the absence of severe neglect and/or abuse.

Related item: Judicial clarity provided on the Human Rights Act and ‘failure to remove’ cases

Omissions during medical assessments do not necessarily lead to fundamental dishonesty

Palmer v Mantas & Anor [20.01.22]

The claimant received an award for damages in excess of £1.6 million for her minor traumatic brain injury (mTBI) in the face of allegations in regard to fundamental dishonesty.

The claimant’s case was that she had suffered mTBI combined with a somatic symptom disorder as a result of a road traffic accident. This led to long-term intrusive symptoms, which significantly impacted on her ability to work and also gave rise to a heavy dependence upon her family for care and assistance.

The defendant’s case was largely founded on an assertion that the claimant had not been entirely honest with the numerous experts she had seen in relation to the full extent of her activities and holidays. However, the difficulty for the defendant was that the claimant had, at least according to the judge, provided a largely consistent and honest description of her ongoing difficulties. He did not find the omission of further information that was not brought out by direct questioning to be significant.

Whilst there have been a number of successes for defendants in relation to allegations of fundamental dishonesty, this judgment demonstrates that it is nevertheless still a high hurdle to overcome.

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Jurisdiction in a post-Brexit legal system

In December 2021, the Court of Justice of the European Union (CJEU) handed down judgment in this case, ultimately coming to the opposite conclusion to the UK’s Court of Appeal. In the CJEU’s reasoning, the special rules on insurance under Article 13(2) of the Brussels recast regulation are to address an imbalance between the parties as an insurer is considered a stronger party. The claimant and the insured are seen as weaker parties, so there is no reason to allow a claimant to sue a defendant in their member state of domicile under the special rules.

This decision highlights how Brexit will shape the future legal system in England & Wales as, following the end of the Brexit transition period, this may well be the last matter that the courts of England & Wales refer to the CJEU. This is highly significant, as such issues in the future will not have the benefit of consideration by the CJEU and the final decision will come from the UK’s home courts.

Related item: Is divergence inevitable in a post-Brexit legal landscape?


Strict liability and non-dangerous animals

In this Court of Appeal case, the court provided clarity on the requirements relating to strict liability for non-dangerous animals under Section 2(2) of the Animals Act 1971, provided guidance on the requirement for the injury to have been caused by a characteristic of the animal, and the requirement for knowledge of those circumstances.

The claimant was an employee of the defendant and at the time of the accident was hunting whilst riding a horse which was kept at the defendant’s premises. The horse reared and fell onto the claimant who sustained severe injuries. The horse died a few minutes later.

The court found that the trial judge was correct in rejecting the appellant’s argument that the reason for the horse’s rearing was irrelevant. Rather, it was necessary to show the particular circumstance that gave rise to the characteristic of rearing and also the keeper’s knowledge of this.

This is a welcomed result for defendants and insurers. Whilst each case will turn on the specific facts, this judgment emphasises that the Act does not result in automatic strict liability in all Section 2(2) cases and as such, should discourage ill-founded claims being pursued.

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