13/03/2017
A round up of recent court decisions raising issues relating to the out-of-hours response to dangerous defects, surveillance evidence, stage three fixed costs and multi-track claims started in the portal.
The out-of-hours response to dangerous defects
Lee Michael Crawley v Barnsley Metropolitan Borough Council [02.02.17]
The Court of Appeal decides that there has to be some means of responding quickly to complaints from members of the public of serious and dangerous defects in the road.
Decision
The Court of Appeal held: the report made to the local authority on Friday afternoon gave rise to a real risk that the pothole was a Category 1 defect within the meaning of the Well Maintained Highways: Code of Practice.
The defect represented an immediate or imminent hazard which required immediate attention.
The local authority’s system failed the s.58 test because, had reasonable steps been taken, whilst the injury may not have been prevented, the reports of potentially serious defects were not being evaluated by anyone with the requisite skills outside of working hours, unless the report came from emergency services.
It is common ground that a lack of resources does not justify a failure to provide a reasonable system. It might be perfectly reasonable to have reduced staff and activity over the weekend. However, there must be some means of responding quickly to complaints from members of the public in relation to serious and dangerous defects.
Full case review: The out of hours response to dangerous defects
Contact: Louise Bedford
Surveillance evidence requires careful assessment
Hayden v Maidstone and Tunbridge Wells NHS Trust [19.12.16]
The court provided guidance on the relevance of evidence, in this case surveillance evidence, in relation to the claimant’s damages claim following an accident at work.
The claimant applied for permission to rely on the evidence of a Mr Jeffrey A Simm, a video evidence analysis consultant, in the form of a witness statement or, in the alternative, permission to rely on his evidence in an expert capacity in the form of a report.
Decision
Whilst Mr Justice Lay acknowledged a degree of inconsistency between the claimant’s level of functioning and the pleaded claim, he did not consider this to amount to an attempt to mislead. He commented: “Surveillance evidence is capable of being very compelling but in less clear-cut situations requires carefully parsing and assessment.”
Full case review: Surveillance evidence requires careful assessment
Contact: Ed Glasgow
Rising claims costs seem inevitable following the Court of Appeal’s decision to allow stage 3 fixed costs in cases listed for disposal following judgment on admission or in default.
Decision
Following a leapfrog appeal, the Court of Appeal found unanimously for the claimant and upheld the decision of the lower court in awarding the claimant the full stage 3 fixed costs.
Full case review: Fixed costs: stage 3 costs where disposal hearing listed
Contact: Martin Cox
Fixed costs: not applicable to multi-track claims started in the portal
Qader and others v Esure Services Ltd [16.11.16]
The Court of Appeal has given its view on the application of fixed costs to multi-track claims that started in the portal. While the decision appears a just one, the route to it is surprising.
Decision
The Court of Appeal found unanimously for the claimant, reversing the decisions of the courts below, even though those decisions were correctly based on the unambiguous rules as they presently stand. The Court of Appeal has found that the rules must be a drafting error and urged the rewriting of them.
The Court of Appeal considered this case together with the appeal in Khan and another v McGee, in which it reached the same conclusion.
Full case review: Fixed costs: not applicable to multi-track claims started in the portal
Contact: Martin Cox
Read other items in the Personal Injury Brief - March 2017
