Personal Injury Brief: latest decisions September 2017
A round up of recent court decisions raising issues relating to the duty of solicitors to clients in high volume, low value personal injury claims, the interplay between the discount rate and Part 36, the widening scope of vicarious liability, when liability arises under the Third Parties (Rights against Insurers) Act 2010, an occupiers’ duty to provide a pedestrian area on an access road and a shopkeeper’s duty of care when displaying dangerous products.
High volume, low value personal injury cases: solicitors’ duties
Graham Thomas v Hugh James Ford Simey Solicitors [04.09.17]
The claimant coal miner had instructed solicitors in a damages claim for vibration white finger (VWF). His instructions included confirmation that he did not wish to claim special damages as he would not be able to provide evidence that he had received help with services such as decorating and DIY. Seven years after accepting the offer of general damages in full and final settlement – and after seeing an advertisement stating that thousands of VWF claims had been settled for much less than they should have been - he brought a negligence claim against the solicitors.
It was held that solicitors acting under a fixed costs scheme for high volume/low value personal injury cases were not under a duty to advise further about heads of claim which a client had said he did not wish to pursue. The claimant’s claim failed.
Contact: Philippa Craven
Conduct and indemnity costs: the interplay between the discount rate and Part 36
Marsh v Ministry of Justice [31.07.17]
The court was asked to consider the costs consequences following a stress at work claim against the Ministry of Justice. The claimant made several attempts to settle the claim, which included two Part 36 offers in 2014 and 2016 and two offers of mediation. The defendant refused or ignored those offers and, ultimately, the claimant recovered a sum in excess of the later Part 36 offer.
The court held the case has been suitable for ADR and agreed the claimant should have all his costs. With regard to the 2014 offer, the judge held it was unjust for the offer to bite given it only did so due to the change in discount rate. She relied on an earlier case which held it would be unfair for the consequences of Part 36 to flow when the reason the sum has been exceeded was because a dramatic fall in the value of sterling after the Brexit referendum in June 2016. However, the failure to answer the 2016 offer resulted in an additional 10% on the judgment sum, plus enhanced interest.
Contact: Janine Clark
Related item: Repairing the discount rate for fairer compensation
Vicarious liability for alleged sexual assaults carried out by independent contractor
Various claimants v Barclays Bank PLC [26.07.17]
The High Court finds an employer vicariously liable for alleged sexual assaults carried out by a GP engaged as an independent contractor to examine staff.
This decision is an unwelcome development for employers, and reinforces the positon that the lack of a traditional contract of employment with the tortfeasor is not necessarily a bar to a finding of vicarious liability, which can have far-reaching consequences. Employers who outsource functions, which could hypothetically give rise to similar issues, may want to review such arrangements.
Third Parties (Rights against Insurers) Act 2010: when liability bites
Redman v Zurich insurance plc (and others) [26.07.17]
The claimant brought a claim under the Third Parties (Rights against Insurers) Act 2010 (the Act) claiming that her husband’s death had been caused by exposure to asbestos during his employment with the second defendant. Her husband died on 5 November 2013. The employer was the subject of a voluntary winding up order on 23 January 2014 and the company dissolved on 20 June 2016.
It was held that liability under the Act was incurred when the damage was caused, not when the claimant had established a right to compensation. The court also clarified that the Act does not apply retrospectively so as to run in parallel with the Third Parties (Rights Against Insurers) Act 1930 (the 1930 Act). If the 1930 Act applies, the 2010 Act does not.
Contact: Greg Woods
Related item: Recovery from an insolvent target: impact on liability insurers
Occupiers’ liability: duty to provide exclusive pedestrian area
Mullen v Kerr & South Eastern Education and Library Board [14.07.17]
The defendant car driver admitted liability for injuries sustained by the claimant whilst walking on a private access road into her place of work. The defendant brought third party proceedings against the South Eastern Education and Library Board (the Board) on the basis that the design of the road was negligent because at the point of collision, there was no segregation between vehicles and pedestrians by provision of either a raised footpath or creating an exclusive area for pedestrians.
It was held that the Board was not in breach of its duties at common law by failing to provide a footpath or an exclusively pedestrian area but they should have carried out a risk assessment in relation to both adults and children using the road. However, had it done so, it would probably have simply erected more warning signs, and that would probably not have prevented the collision. The failure to carry out a risk assessment was therefore not causative and the Board was not liable for the pedestrian’s injuries.
Contact: Marian Brennan
Retail liability: foreseeable risk with dangerous products
Faisal and Faisal v Safiqit Younis (t/a Safa Superstore) and one other [07.07.17]
The first claimant was shopping with her two and a half year old son (the second claimant) at the defendant’s store. The defendant shopkeeper displayed on a bottom shelf plastic containers containing caustic soda – which had been manufactured by the second defendant. The second claimant was injured when he reached for the product and tried to consume some of the contents.
The second defendant admitted a failure in the lid’s safety features. It was held the first defendant ought to have taken further steps to understand the potential dangers of the product – for example, by reading the packaging. In any event, the retailer should have realised a foreseeable risk to children by placing the product on the bottom shelf and that the risks were catastrophic – which was against a background of an “almost zero” cost to implement preventative measures. The retailer was held to be one third liable; the manufacturer two thirds liable.
Contact: Kathy Dwyer