Personal Injury

Sandhu v Sidhu, Ch D, 14/03/12

Thu, 10 May 2012 14:38:10 GMT

It was held that a committal application alleging a false statement of truth was alleging a public as opposed to a private wrong and that there should be rigorous control of the conduct of such proceedings brought in the public interest. If the application were to be granted there was a high likelihood that there would be a further adjournment of the trial. It was not right that proceedings in the public interest should be conducted in such a way as to produce material at the last minute where a respondent was facing the threat of imprisonment.

Cecil Guntrip v Cheney Coaches Ltd [2012] EWCA Civ 392, 14/03/12

Thu, 10 May 2012 14:34:23 GMT

No error in judge's decision to refuse to admit new expert evidence where there had already been a joint experts' report:

The Court accepted that a DJ had been correct in refusing the C permission to rely on a new expert report on the eve of trial and where a joint expert report had already been prepared and the C's expert had appeared to change his opinion in favour of the D. It was held that in the context of trial management it was good if an expert changed his opinion sooner rather than later. Expert shopping was not to be encouraged. The DJ had correctly thought about both parties when refusing the initial application and was mindful of the delays incurs and the costs consequences that would ensue were the C granted permission to rely on a further report. Though a circuit judge had overturned the DJ's decision on the basis that if he did not do so the C's case would effectively fail, this did not mean the DJ's decision had been wrong.

Vicarious Liability For Abuse: EL v Children's Society [2012] EWHC 365 (QB)

Thu, 22 Mar 2012 18:34:10 GMT

The Claimant claimed damages for sexual abuse suffered while he was resident at one of the Defendant's (D) children' homes in the 1950s. The abuse was perpetrated by the son of the houseparents (B). The Claimant issued against B himself and against D. The question was whether D was vicariously liable for the actions of B when they had employed B's parents as houseparents and not B himself.

EL submitted that B had had responsibilities within the home; that he had been left in charge when his parents were away and that since he had contributed to discharging the houseparents' care obligation B's abuse was closely connected with his role at the home. Therefore, while B was never employed by D, D ought still to be vicariously liable.

Held: by Haddon-Cave J, that the doctrine of vicarious liability was a principle of strict liability and therefore it was important to keep it within clear limits. Lister v Hesley Hall Ltd [2001] UKHL 22, [2002] 1 AC 215 and Various Claimants v Institute of the Brothers of the Christian Schools [2010] EWCA Civ 1106 were applied. It was not sufficient that the employment by D allowed the perpetrator an opportunity to commit the tort. The further questions where whether the employer had entrusted to the perpetrator the performance which it, the employer, had undertaken [i.e. in this case care of the children]; and if so whether there was a sufficiently close relationship between the torts and the tortfeasor's employment to make it fair and just to hold the employer liable. On the facts, the abuse had not been carried out by B when employed as temporary relief cover for his parents. On the facts, the test in Lister and Various Claimants was not met.

Grupo Hotelero Urvasco SA v Carey Value Added SL (2012), QBD (Comm) 23/02/12

Thu, 22 Mar 2012 18:32:56 GMT

A late application to adduce expert evidence was granted as it would at least arguably assist the Court

Dennis Ball v Secretary of State for Energy and Climate Change [2012] EWHC 145 (QB)

Thu, 22 Mar 2012 18:31:40 GMT

The court commented on the factors for assessing the damages to be awarded for pain, suffering and loss of amenity for mesothelioma, and on the lower level figure for awards in the Judicial Studies Board Guidelines 10th Edition.

The Court held that the assessment of damages in mesothelioma cases was far more complex than the emphasis in the JSB Guidelines on "duration of symptoms" would suggest. Factors to be taken into account were the extent and effects of the invasive investigations that a claimant had had to undergo and the type of mesothelioma suffered. The level of symptoms were a key factor. If the symptoms, in particular pain, could not be effectively controlled, that was an important consideration. It was relevant that, even if death had been relatively peaceful, he or she would have been fearful since being told of the diagnosis that a painful and distressing end was to follow. The duration of symptoms were a factor, although not determinative of the level of award. The level of award would be affected by domestic circumstances and previous state of heath and level of activity. Looking at the reported awards, it was difficult to understand the basis of lower level figure of £35,000 in the tenth edition of the JSB Guidelines

Accident Exchange Ltd v Nathan John George-Broom & 6 Ors [2012] EWHC 207 (Admin)

Thu, 22 Mar 2012 18:30:43 GMT

An application to bring contempt proceedings against 7 individuals who it was claimed had given false information about car hire rates was granted.

The evidence against the respondents was ostensibly strong. There appeared to be a basis for saying that the respondents in their individual cases had the knowledge that there was a false picture being presented to the court. The problem was certainly significant, there being a large raft of cases. It would not be trivial if the matter were proved. This was systematic behaviour. The appellant was therefore given the permission sought. Honda Motor Co Ltd v Neesam [2008] EWCA Civ 1280, [2009] 1 W.L.R 2406 applied.

Melanie Hawksworth v (1) Chief Constable of Staffordshire (2) Staffordshire Police Authority (2012), CA, (Civ Div), 16/02/12

Thu, 22 Mar 2012 18:27:23 GMT

Where Counsel was concerned that evidence was being adduced that was a departure from a pleaded case, it was incumbent upon him to invite the trial judge to rule on that objection and insist on the ruling. It was therefore too late to raise the point on appeal.

The appellant employee appealed against a decision dismissing her personal injury claim arising out of the alleged negligence of the respondent employer. It was apparent that the approach of counsel for the employee at trial was insufficient; if she had been concerned that the respondent would adduce evidence and seek to rely on it in departure from the pleaded case, it was incumbent on her to invite the trial judge to rule on that objection. Accordingly, she ought to have insisted on a ruling at trial. If such an objection had been taken, the respondent in turn could have applied for an amendment if necessary. The appellant had had an opportunity to raise the point at trial and had failed to do so. It was now too late to complain. In any event, the trial judge had rejected the appellant's expert's evidence more or less in its entirety and the trial judge's conclusion that appellant's expert's evidence was insufficient to satisfy her claim had been a free-standing conclusion.

Ball v. Secretary of State For Energy and Climate Change, QBD, 10/02/12

Fri, 16 Mar 2012 00:03:00 GMT

Assessment Of Damages For Pain, Suffering And Loss of Amenity For Mesothelioma:-

Swift J was required to assess damages for pain, suffering and loss of amenity in respect of the 92 year old Claimant who had contracted mesothelioma following exposure to asbestos dust during the course of his former employment with the defendant. Swift J was required to consider the fact that the 10th Edition of the Judicial Studies Board Guidelines provided for a lower level award of £35,000.00 in respect of mesothelioma, whereas the 9th Edition provided for a lower level award of £52,500.00. Swift J commented that it was difficult to understand the basis for the lower figure of £35,000.00 provided within the 10th Edition of the Judicial Studies Board Guidelines. Swift J held that despite his age, the Claimant's disease had had and would have a devastating effect upon his life and that the appropriate level of award would be £50,000.00.

Liverpool Victoria Insurance Company Limited v. Bashir & Ors, QBD (Admin), 28/02/12

Fri, 16 Mar 2012 00:02:23 GMT

6 Week Prison Sentences For Respondents Who Had Admitted Bringing A Fraudulent Personal Injury Claim:

Sir John Thomas (President) and Silber J granted the Applicant insurance company's application for the committal of the Respondents for contempt of court. The Respondents had admitted bringing and supporting a fraudulent claim for personal injury within a contrived road traffic accident. Two of the Respondents were sentenced to 6-weeks' imprisonment. This sentence reflected a significant reduction from the 12-months' imprisonment which the Court would have imposed but for the facts that they had admitted the fraud and assisted the applicant in its investigations by the disclosure of information. However, the Court took the view that their conduct nevertheless had to be deterred. The 2 other Respondents received suspended sentences of 6-weeks' imprisonment due to their lesser involvement.

Goldsmith v. Patchcott, CA), 27/02/12

Fri, 16 Mar 2012 00:01:11 GMT

Court Of Appeal Consideration Of The Voluntary Assumption Of Risk Defence Pursuant To Section 5(2) Of The Animals Act 1971

The Court of Appeal dismissed the Appellant's appeal against the decision that the Respondent was not strictly liable for the injuries she sustained whilst she was riding a horse which had reared up and thrown her to the ground. The Court below had found that the Appellant had voluntarily assumed the risk that the horse would rear and buck if it was alarmed or startled and therefore that the Respondent had a valid defence pursuant to section 5(2) of the Animals Act 1971. The Court of Appeal held that in order for a defendant to successfully avail itself of the statutory defence to strict liability for injuries caused by dangerous animals, it was not necessary to establish that the injured person should foresee the precise degree of energy or force with which the animal would engage in its characteristic behaviour. The Court of Appeal held that the fact that the horse in the instant case had bucked more violently than had been anticipated by the Appellant did not take the case outside section 5(2) so as to defeat the Respondent's defence.

Armstrong v. (1) Keepmoat Homes Ltd (2) Northumberland County Council (3) Blyth Valley Borough Council, QBD (Newcastle), 03/02/12

Fri, 16 Mar 2012 00:00:12 GMT

Consideration of Local Authority's Duty Of Care To Claimant Who Had Crossed Road From Its Land And A Gap In The Fence:-

HHJ Simon Wood (sitting as a Deputy High Court Judge) dismissed the Claimant's claim for damages pursuant to the Occupiers' Liability Act 1957 and in negligence. The Claimant, who was 12 at the time of the accident, claimed damages for personal injuries sustained when she was struck by a motorist causing extensive head injuries as she was trying to cross a dual carriageway. Whilst there were 2 safe routes for crossing the carriageway, the Claimant had taken neither and had attempted to cross at a point of access from a gap in a fence in local authority land adjoining the carriageway. On the evidence, it was held that the local authority had constructive knowledge of the gap in the fence and the path from the edge of the land to the road and thus that it had had impliedly consented to it being used by lawful visitors for the purposes of the Occupiers' Liability Act 1957. However, there was no duty on an occupier to prevent a visitor from leaving his land so as to safeguard the visitor from coming into contact with danger on neighbouring land. In the instant case, the danger had not arisen from the land itself. HHJ Simon Wood held that the test of liability was whether the local authority had expressly or impliedly assented to the Claimant attempting to cross the road through the gap in the fence and held that what the Claimant did after she had left the local authority's land had not been expressly or impliedly assented to. Consequently, the claim failed.

XVW & YZA v Gravesend Grammar School for Girls and Adventure Life Signs Ltd [2012] EWHC 575

Thu, 15 Mar 2012 23:51:40 GMT

Vicarious liability of a school and expedition company on a trip abroad: the judgment of Mackay J in XVW & YZA v Gravesend Grammar School for Girls and Adventure Life Signs Ltd [2012] EWHC 575 (QB) on 13 March 2012. T

he question was whether a school and an expedition company were liable for the rape of two pupils by a local guide in Belize. It was held that vicarious liability did not attach to either and furthermore that the school were not in breach of their duty of care by not sending a second teacher on the trip. Beyond that liability did not attach since the checks made were reasonable and proportionate and the leaders of the expedition were not given any reason to foresee this terrible event.

Woodland v Essex County Council [2012] EWCA Civ 239

Thu, 15 Mar 2012 23:49:14 GMT

Do schools owe non-delegable duties to pupils?

Judgment of the Court of Appeal in Woodland (by her father and litigation friend Ian Woodland) v Essex County Council [2012] EWCA Civ 239 on 9 March 2012. In that case a school pupil was injured in a swimming lesson during the course of the school day. The school did not run the lesson and the preliminary issue was whether nevertheless they may be responsible. This centred around whether the duty to a pupil was non-delegable as it was in some cases involving a hospital and patient. The Court of Appeal held that this would involve an inappropriate extension of the law of negligence. However, perhaps the most significant aspect of the judgments was the leaving open of the possibility that the law might be changed by the Supreme Court. Laws LJ provided a powerful dissenting judgment and Tomlinson LJ (with whom Kitchin LJ agreed) said: "A development of the law along the lines sought must be a matter for the Supreme Court". So solicitors with similar cases on the go may well be watching any further progress of this case (if any) with interest.

David Kipling v Dunbar Bank, [2012] CSOH 406, 6 March 2012

Wed, 14 Mar 2012 20:28:09 GMT

Outer House case relating to a personal guarantee granted by Mr Kipling to Dunbar Bank. The bank issued a charge for the payment of over £1m on Mr Kipling on the basis of the guarantee.

Mr Kipling argued amongst other things that he was not liable to pay as the bank had agreed to waive its right to recover under the guarantee.

Lord Pentland granted an interim suspension and interdict preventing the bank from taking diligence against Mr Kipling following on from the charge.

Subsequent to the granting of the interim interdict, Mr Kipling made amendments to his pleadings which led the bank to enrol a motion to recall the interim interdict, arguing that, given the amendments, the interim interdict was obtained in circumstances where Mr Kipling had failed to make full and frank disclosure on all matters material to his application for the interim orders and also that, following the amendments, the pleadings no longer disclosed a prima face case.

Lord Drummond Young refused the motion to recall the interim interdict. Five general matters are relevant when considering the application for, or suspension of, such an order:

the court’s decision on an interim order is not a conclusive determination of the parties’ dispute;
the orders under consideration are merely temporary orders;
the court must give consideration to the balance of convenience. I.e. the prejudice that may occur to each of the parties in the event that an interim order is made or recalled (which requires a judgment as to both the likelihood and the seriousness of such prejudice);
the relative strength of the cases put forward by the parties;
the relative strength of the case that is said to justify an interim order must always be weighed with balance of convenience in the sense of likely prejudice.

As regards the matter before him, Lord Drummond Young found that, although the relative strengths of the cases tended to favour the bank (Mr Kipling’s case relied on the bank having given up its guarantee for no obvious return), given that, if the interim order were withdrawn, the bank could proceed with diligence and ultimately sequestration against Mr Kipling, Mr Kipling’s case on the balance of convenience outweighed the relative strength of the bank’s case.

International Energy Group Ltd v. Zurich Insurance Plc UK, QBD, 24/01/12

Thu, 08 Mar 2012 23:11:34 GMT

In A Claim Governed By Guernsey Law, An Employers' Liability Insurer Was Only Liable To Indemnify Employer For The Proportion Of Employee's Employment Covered By Insurance Policy.

Cooke J was required to determine the scope of the Defendant insurer's liability to the Claimant employer and who was insured by the Defendant under an employer's liability insurance policy in respect of an employee who had contracted mesothelioma and subsequently died. The employee had been employed by the Claimant for 27 years. The issue was whether the Defendant was required to indemnify the Claimant for the entirety of its outlay in settling the employee's claim or whether its liability to indemnify should be limited only to a proportion corresponding to the duration of the insurance policy, being 6 years. The insurance policy was governed by Guernsey Law. Cooke J held that as the provisions of the Compensation Act 2006 did not apply, the Defendant was only liable to indemnify the Claimant limited to the proportion of the employee's employment covered by its policy of employers' liability insurance. Such a decision was consistent with the common law principles propounded in Barker v. Corus U K Ltd [2006] 1 A.C. 572, the effect of which the Compensation Act 2006 had sought to reverse.

Ringe v. Eden Springs (UK) Ltd, QBD, 12/01/12

Thu, 08 Mar 2012 23:10:30 GMT

A Van Emerging Onto A Main Carriageway Without Seeing Motorcycle 20% Liable For Collision With Motorcyclist That Ensued:-

David Pittaway QC had to determine liability in a claim for damages for personal injury brought by the Claimant motorcyclist. The Claimant had been overtaking a articulated lorry by driving in a hatched area. There was a dispute as to his speed but on his own evidence he had been exceeding the speed limit. The Defendant's van was emerging from a junction onto the carriageway, intending to turn right. In the event, the Claimant's motorcycle collided within the Defendant's van. Mr. Pittaway QC held that the van driver should have waited until he had a clear view of the road to his right before attempting to make his turn. However, the Court found that the Claimant should bear the greater degree of responsibility for the accident in that he had significantly exceeded the speed limit (eye witness evidence as to his speed was accepted) and in overtaking the lorry in an improper manner. Consequently, the Claimant's contributory negligence was assessed at 80%.

John Dawson v. Ruth Page, [2012] CSOH 33, 29 February 2012

Tue, 06 Mar 2012 00:08:35 GMT

Outer House case considering a claim for damages under the Occupiers Liability (Scotland) Act 1960. Mr Dawson worked as a self employed courier and was delivering a package to Ms Page’s cottage. Building works were taking place at the cottage and the surroundings resembled a building site. After making two unsuccessful visits to the cottage to deliver the package, Mr Dawson left the package under an oil storage tank in the back garden. As he was leaving the cottage he slipped on a wet plank over a trench in the garden and injured his hand.

Mr Dawson’s claim for damages failed because the wet plank did not constitute a danger, and, even if it did, there was no requirement on Ms Page to exclude people from the site or give warning of the risks.

Lord Glennie observed:

“Wet planks may be slippery. A notice is not required to point that out. Such dangers, if they be dangers, send out their own warning. The pursuer observed that the plank looked slippery. What more would a notice have told him? Accordingly, I reject the submission that the defender was required, in the exercise of any duty under the Act to take reasonable care, to exclude people from the site or to put up a notice warning of whatever danger was posed by the plank walkway.”

Charnock and Others v Rowan and Other [2012] EWCA Civ 2, 20/01/12

Thu, 23 Feb 2012 23:20:42 GMT

Requiring notice from a party that intended to place reliance on hearsay evidence within an agreed court bundle was undesirable.

The court held that in essentially straightforward litigation, where a party intended to place reliance on hearsay evidence, the best option might be to ensure that an opposing case was properly pleaded and then the obligation would lie on each party's lawyers to go through the agreed documents with the client or witness and take instructions on any relevant discrepant hearsay evidence. To require notice that reliance was to be placed on hearsay contained in a bundle did not sit well with PD 32 paragraph 27 which provided that all documents contained in bundles which had been agreed for use at a hearing were to be admissible as evidence. It would also be likely to lead to almost limitless and costly wrangling before and at trial.

Peter Annison v Paul Nolan [2012] EWCA Civ 54, 31/01/12

Thu, 23 Feb 2012 19:15:32 GMT

Failure of the court to deal adequately with expert evidence when an expert comments on areas outside of his appointment.

The Court held there would need to remit a claim for maintenance and repairs for a re-trial after a judge had failed to adequately deal with an expert report which professed to deal with maintenance and repair costs which were outside the scope of his appointment. A claim for just over £55,000 for maintenance and repair costs had been made as part of an claim for personal injury. At trial the judge had made no ruling on the admissibility or relevance of his report and did not refer to it in her judgment. She had therefore failed to deal with it adequately, either by excluding it as irrelevant or by admitting it, considering it and giving her reasons for not awarding the amount claimed.

Judge Wrong Not To Apply The Decision in Copley v Lawn In A Credit Hire Claim - Sayce v. TNT (UK) Ltd, CA, 19/12/11

Thu, 16 Feb 2012 22:25:04 GMT

The Court of Appeal held that the judge's decision, that the Claimant had unreasonably failed to mitigate her loss in failing to accept the Defendant's offer of a replacement vehicle, was procedurally irregular in that the judge had decided the appeal on a basis contrary to the way in which it had been argued before him and without any indication that he was so minded (namely he did not hear any submissions on whether the Court of Appeal's decision in Copley v. Lawn [2009] EWCA Civ 580 should be followed). Furthermore, the Court of Appeal held that the judge had not been entitled to disregard the decision in Copley, notwithstanding his disagreement with the decision and his doubts as to its reconciliation with previous decisions of the House of Lords.

Minio-Paluello v. Commissioner of Police of the Metropolis, QBD, 16/12/11

Thu, 09 Feb 2012 20:49:38 GMT

Protestor Successful In Recovering Damages For Assault By Police Officer In The Course Of A Demonstration:-

Eder J held that the Claimant protestor, who sustained a fractured arm during a pro-Palenstinian demonstration following restraint by a police officer, was entitled to recover damages from the police for assault. Eder J held that whilst the police officer had reasonable grounds for believing that the Claimant was committing the offence of obstructing the highway and that the arrest was thus lawful and the Claimant resisted her arrest, the method and force used by the officer to get the Claimant to her feet were not reasonable or proportionate. In particular, the locking of the Claimant's arm behind her back and lifting her by that arm was dangerous and her injuries were avoidable. The Claimant was awarded damages for assault and general damages of £11,500.00.

Event Management Company In Breach Of Duty To A Visitor To Santa's Grotto: Dufosse v. Melbry Events Ltd, CA, 14/12/11

Thu, 09 Feb 2012 20:48:12 GMT

The Court allowed the Appellant's appeal against the dismissal of her claim for damages for a leg injury sustained as a result of tripping and falling over a plastic icicle christmas tree bauble during a visit to Santa's grotto. The Court of Appeal approached the issue of whether the Respondent event management company had breached its duty of care from the starting premise of whether the icicle was there to be seen. On the basis that the icicle was there to be tripped upon, the Court of Appeal held that the proper inference was that it was there to be seen. Consequently, the Court of Appeal held that whilst in principle the Respondent had a safe system in place for checking the floor of the grotto for tripping hazards, on this particular occasion the Santa and elf had not been as careful in the checking of the floor as they should have been. As such, the Respondent was found to have breached its duty of care to the Appellant.

Tariq Ali v Esure Services Ltd [2011], EWCA Civ 1582, 19/12/11

Thu, 26 Jan 2012 23:33:59 GMT

A single judge sitting in the High Court did have jurisdiction to make a committal order for an alleged contempt of court in proceedings commenced in the county court but subsequently transferred to the High Court.

The appellant, who had been the original Claimant appealed against a decision that a single judge sitting in the High Court had jurisdiction to hear an application by the respondent Insurer for his committal for alleged contempt of court. The Insurer had filed and served a Defence alleging fraud, at which point the Claimant had filed a notice of discontinuance. The Insurer issued an application to set aside the notice of discontinuance and transfer proceedings to the High Court. The Appellant submitted that the alleged contempt was made in connection with proceedings in the county court and therefore an order of committal could only be made by a Divisional Court and a single judge of the High Court had no jurisdiction. The Court held that Order 52 r.1(3) applied to "any proceedings in the High Court" and those words were wide enough to cover proceedings that were not started in the High Court, but were transferred to it from the county court. The proceedings in the High Court were the very same proceedings t hat were in the county court. On the transfer to the High Court the proceedings "in connection with" which the alleged contempt was committed did not become a different set of proceedings separate from those that were in the county court. The decision in Brighton and Hove Bus and Coach Co Ltd v Brooks (2011) EWHC 806 (Admin) that only the Divisional Court had jurisdiction where contempt was alleged in proceedings that had been transferred from the county court to the High Court was disapproved.

Maynard v Wigan Metropolitan Borough Council (2011), CA, 21/12/11

Thu, 26 Jan 2012 23:33:08 GMT

The trial judge had not erred in implicitly accepting a witness' evidence as truthful despite not clearly expressing his reasoning and consequent findings.

A local authority appealed against a decision that it had breached its duty of care owed to the Claimant when she had fallen crossing a grass verge outside her house due an averred hole in the car. During the trial the judge considered a number of photographs of the verge taken at least 3 years after the accident which the Claimant suggested was similar to the size of the whole, albeit it was deeper at the time of the accident. The judge held she was a truthful witness and awarded her damages. The local authority appealed on the basis that the judge had made no clear findings on the nature and size of the hole, and that he had inferred that the hole was dangerous from the mere fact that the Claimant had fallen and that she had complained. The appeal was refused on the basis that the judge, in referring to evidence of the Claimant's foot getting stuck and of her stepping into the hole seemed to accept that there was a hole and that it was large enough for an adult to step into. The judge had accepted the deta ils of the Claimant's account as an honest witness even though he had not expressly found that the hole was deep enough to be able to get stuck in and had not made any findings about the hole's dimensions.

Smithurst v. Sealant Construction Services Ltd, CA, 03/11/11

Thu, 05 Jan 2012 20:15:06 GMT

The Court of Appeal held that the judge had been entitled to adopt an acceleration approach as to the assessment of the claimant's back injury and damages to be awarded thereof. The claimant's expert's opinion was that there was no reason to suggest that the claimant would have suffered a similar disc prolapse in the future but for the accident. The expert opinion of the defendant's expert was that the claimant would have suffered from a similar prolapse within 2 years independently of the accident. The judge had preferred the evidence of the defendant's expert and assessed the claimant's damages on the basis of a 2-year acceleration period. The Court of Appeal held that the judge had been entitled to prefer the evidence of the defendant's expert and that provided the acceleration period found by a judge fairly reflected the medical evidence, the acceleration approach could properly be adopted.

McDermott v. Pettit, QBD (Manchester), 23/11/11

Thu, 22 Dec 2011 17:29:15 GMT

Pedestrian Knocked Over By Speeding Motorist Under The Influence Of Alcohol Guilty Of Contributory Negligence To The Extent of 10%:-

The claimant pedestrian claimed damages for personal injury and loss arising out of a road traffic accident in which he had been knocked down by a speeding motorist under the influence of alcohol in the early hours of the morning. The defendant motorist had previously pleaded guilty to a charge of dangerous driving. The issue for Parker J to determine was the extent, if any, of the claimant's contributory negligence. Parker J held that the claimant had failed to take reasonable care for his own safety in: (a) not using a pedestrian crossing some 10m from where he crossed the road; (b) in crossing the road given the approach of the defendant's speeding vehicle and in view of the fact that the traffic lights for oncoming traffic were green; and (c) in not focusing to his right when crossing. Parker J held that these failures had contributed to the accident and thus damage. However, Parker J held that the defendant driver should bear 90% of the responsibility for the accident as his failings had substan tially caused the accident The claimant was held therefore to have contributed to the extent of 10%.

Ali v. D'Brass, CA, 23/11/11

Thu, 22 Dec 2011 17:26:15 GMT

A Motorist That Broke Sharply For No Good Reason 40% Responsible For Rear-End Collision That Ensued:-

The Court of Appeal held that the trial judge had erred in dismissing the claimant's personal injury claim on grounds that the although the defendant had been driving too close behind the claimant's vehicle, the claimant was wholly responsible for braking for no good reason and thereby causing a rear-end collision. Upon appeal, the Court of Appeal held that the accident could have been avoided if the defendant had kept a greater distance from the claimant's vehicle and driven with more care. The Court of Appeal also held that the claimant was partially at fault in braking sharply for no good reason. However, in driving too close to the rear of the claimant's vehicle, the defendant should bear the greater degree of responsibility. Accordingly, the Court of Appeal upheld the appeal and apportioned liability at 60:40 in the claimant's favour.

Satoshi Kojima v HSBC Bank Plc [2011], CA, 09/11/11, Extempore

Thu, 22 Dec 2011 15:32:58 GMT

The applicant appealed against a DJ's decision not to allow him to withdraw an admission he had made that he was indebted to the respondent bank. At first instance the judge had ordered that unless he executed a charge over his flat, judgment would be entered against him for the admitted amount. The applicant was later informed by solicitors that he had a defence to the claim, however his application to have the unless order revoked was refused. The CA held that the DJ had considered all the principles in CPR PD14 had had made a value judgement. The CA would only displace the decision if they had gone wrong in principle and there was no evidence this had occurred. It was impossible to say that his decision was one that he was not entitled to reach

Donald Berry (A protected party by his wife and litigation friend Carol Berry) v Ashtead Plant Hire Co Ltd & Others [2011], EWCA, Civ 1304, 10/11/11

Thu, 22 Dec 2011 15:31:46 GMT

The word "defendants" in CRP r. 25.7(2)(e)(ii) meant the Defendants against whom an order for an interim payment was sought. Therefore when a Claimant applied for an interim payment against a number of Defendants on the basis that one or another was liable and they were all insured, it was irrelevant that there was also another Defendant who was not insured. On the facts, the Appeal was allowed as it was far from certain that the parties against whom the interim order had been made would be found liable.

Sadler v. Filipiak & Anor, CA, 10/10/11

Thu, 22 Dec 2011 14:30:38 GMT

Whilst recognising that an appellate court would only interfere in exceptional cases, the Court of Appeal held that the judge below had taken the wrong approach to the assessment of general damages for pain, suffering and loss of amenity in a case of multiple personal injuries and accordingly it was entitled to look at his judgment afresh and substitute its own figure. The Court of Appeal held that the correct approach was to consider separate figures for each injury and then assess whether the total award was sufficient to compensate the claimant for the totality of her injuries. The judge had first formed an overall impression as to the total award and then broken the award down in respect of the various injuries. In so doing, the Court of Appeal held that he had erred. The award of £32,000.00 was increased to £40,000.00.

Sutton v. Syston Rugby Football Club, CA, 20/10/11

Thu, 22 Dec 2011 14:29:19 GMT

The Court of Appeal allowed the Respondent rugby club's appeal against a decision that it was liable for the personal injuries sustained by the respondent/claimant rugby player during a training session on its pitch. As to the duty of care owed, the Court of Appeal held that a rugby club owed rugby players a duty to conduct an inspection of the pitch pre-training session or match and which inspection should be carried out at a reasonable walking pace by a coach or match organiser. However, on the facts/evidence, the Court of Appeal held that such reasonable inspection would not have revealed the defect.

Woodland v. Essex County Council & Ors, QBD (Manchester), 17/10/11

Thu, 22 Dec 2011 14:28:00 GMT

By way of determination of a preliminary issue, Langstaff J rejected the Claimant pupil's claim that the Defendant local education authority (which ran her school) owed her a non-delegable duty of care. Accordingly, Langstaff J held that the school was not liable for the alleged negligence of a lifeguard not employed by the school and thus the personal injuries sustained by the Claimant in the course of a swimming lesson.

Christine Smith v Barry Kempson [2011], EWHC 2680 (QB) 21/10/11

Thu, 01 Dec 2011 22:45:43 GMT

The Appellant submitted that the judge had failed to make findings about what a motorist failed to do or did which constituted a breach of duty after she was found negligent for pulling out from a minor road into a motorcyclist. It was held that the judge had directed herself correctly when she had found on the balance of probabilities that the driver had driven below the standards of a reasonable driver, with it significant that she had found that the motorcyclist was not culpable of driving below the reasonable standards of a motorcyclist. Though the judge did not make a specific finding of what it was that the motorist did or did not do which was negligent, which the trial judge should have done, it did not preclude the trial judge from reaching a conclusion that the motorist had failed to reach the high standard of care required. It was open to a judge to conclude that a person had acted in breach of the standard of care, even if the judge was unable to say, or had not said, precisely what action or omis sion constituted the fault.

Brighton & Hove Bus & Stage Coach Ltd v (1) Sheridan Brooks (2) Merihan Tadrous (3) Nabil Tadrous [2011], EWHC 2504 (Admin) 14/10/11

Thu, 01 Dec 2011 22:44:25 GMT

The applicant insurer sought to have the Claimant's two daughters and husband of a Claimant committed. It was for the applicant to demonstrate beyond reasonable doubt that the statements and representations relied on were made, that they were false, that they were likely to interfere with the course of justice in some material respects, and that, at the time they were made, the maker had no honest belief in their truth and knew of the likelihood that they would interfere with the course of justice. An impression had been conveyed to the medico-legal experts by one of the daughters and the husband that the Claimant had very limited mobility which was in sharp contrast to the surveillance evidence. The relevant statements and representations made to the experts were clearly false in so far as they related to the Claimant's mobility. It was held that the Claimant's daughter and her husband had agreed to present a false picture of the Claimant's limited mobility and must have known that their false statements an d representations would interfere with the course of justice. However nothing in the witness statements of the Claimant's family was false to the extent that the entire case against the Defendant was false.

K2 Restaurants v Glasgow City Council and others, 18 October 2011, [2011] CSOH 171

Tue, 15 Nov 2011 14:28:00 GMT

Outer House case concerning damage to an Indian restaurant in Glasgow following the demolition of the floors above by Glasgow City Council.

The Council demolished the first, second and third floors of a tenement on North Street in Glasgow in the autumn of 1996 after serving notice (under s13 of the Building Scotland Act 1959) on the owners. However, on 6 November part of the gable wall and chimney (exposed after the demolition) collapsed in high winds and fell through the roof of the Koh I Noor restaurant which formed the ground floor of the tenement.

The owners of the restaurant sought damages from the Council claiming that the Council knew or ought to have known that, after completing the works, they had left the former mutual dividing wall in a condition which presented a foreseeable danger to people and the adjacent property in the event of high winds.

Morag Wise QC (sitting as a temporary judge) found that it was a clear case of common law breach of duty. Whilst the Council had initially acted under the 1959 Act, after it had made the decision to demolish part of the building, a relationship was created between them and the neighbouring proprietors that gave rise to a common law duty of care.

The decision to demolish had been taken by a director of Building Control at the Council. However, he also decided to delete tying works (reducing the contract sum by about £12,000) to the exposed wall from the contract despite having received a survey report indicating that it would not be safe to leave the wall without tying or other stabilisation works. Morag Wise QC came to the conclusion that the Council knew that without carrying out gable stabilisation works there was a material risk of harm to people or property in the vicinity of the wall.

The Council’s argument that they should be free of responsibility for the collapse as they had written to the restaurant owners indicating that future maintenance of the structure would be their responsibility was rejected. There was no evidence of the restaurant owners having been advised that the exposed wall lacked stability and had not been tied. The restaurant owners were entitled to assume that the Council had carried out the work in a manner that did not create a new structural instability.

The Council’s further contention that any liability had been extinguished by limitation in terms of the Prescription and Limitation (Scotland) Act 1973 was also rejected. The Council were relying on the fact that the limitation period began on the date they completed the works and left the site knowing the wall lacked stability. However, the court found that in this case the loss and damage occurred when the masonry fell through the roof of the restaurant on 6 November. Before that no relevant proceedings could have been taken.

Genevra Pope (As Personal Representative of Jason Pope) v Energem Mining (IOM) Ltd (Formerly Branch Energy Ltd) (2011), (2011), EWCA, Civ, 1043

Thu, 03 Nov 2011 08:58:41 GMT

The judge at first instance had appeared to have made an arithmetical error in determining the sum for which judgment should be given and the appeal was to that extent allowed. Permission to appeal on costs was refused as there was no realistic prospect of success on appeal. The Claimant complained that, in addition to indemnity costs the judge should have given her the additional consequences available to a claimant who had made a Part 36 offer which a defendant had been unable to better at judgment however there was no reason to revisit his exercise of discretion. The Claimant also alleged bias and prejudice against the judge who had refused permission to appeal and refused to recuse himself from dealing with the r.52.17 application. However, there was not the slightest evidence whatsoever of any bias of prejudice, actual or even apparent. Therefore the balance of the Claimant's application to appeal and to re-open previous failed attempts to appeal was dismissed.

Sir Robert Lloyd & Co Ltd and Others v Bernard Hoey (2011), EWCA Civ, 1060, 09/09/11

Thu, 03 Nov 2011 08:57:13 GMT

The Claimant had been exposed to asbestos following employment with the Defendant and issued on the basis of diffuse pleural thickening. He had first developed chest pains in the mid 1980's and though pleural thickening was noted on some of his x-rays, it was not the suspected cause of his chest pain and he was subsequently discharged from clinic. The expert evidence was that the pleural thickening would have caused this chest pain. He returned to work but returned to hospital with breathing difficulties in 2007. It was held that the trial judge was correct to conclude this admission represented a transient episode of chest pain and he did not realise he had suffered a significant injury pursuant to s.14(1)(b) of the Limitation Act 1980 and the question of attributability under s.14(1)(b) did not arise.

Whiten v. St George's Healthcare NHS Trust, QBD, 5/08/11

Thu, 27 Oct 2011 21:26:59 GMT

Swift J awarded the claimant general damages for pain, suffering and loss of amenity in the sum of £235,000 in respect of personal injuries sustained as a result of the defendant's negligent management of his mother's labour and his subsequent birth. In particular, the claimant had sustained very severe brain damage which had a consequential profound effect on his everyday life. However, as the claimant lacked any significant degree of insight into his condition, Swift J held that his injuries would not attract an award at the higher end of the relevant bracket of the JSB Guidelines. Significant damages of £5,685,500 were awarded in respect of future losses.

Bodey v, Hall, QBD, 5/08/11

Thu, 27 Oct 2011 21:25:28 GMT

David Pittaway QC, sitting as a Deputy Judge of the High Court, dismissed the claimant's claim for damages under the Animal's Act 1971 in respect of serious head injuries sustained by her when she was thrown from a trap that was being pulled by the defendant's horse. For reasons unknown, the horse had become startled by an unknown stimulus. Mr. Pittaway QC held that the predisposition of a horse to react to an unknown stimulus by running away was a characteristic of an animal and as it was a normal reaction in the particular circumstances of confrontation with an unknown stimulus, it was held that section 2(b) of the Act was satisfied. However, the claim was ultimately dismissed on grounds that as an experienced horsewoman, the claimant had voluntarily assumed the risk of the trap tilting and thus the exception to liability under section 5(2) of the Act applied.

Grimes v, (1) Hawkins (2) Frimley Park Hospital NHS Foundation Trust, QBD, 3/08/11

Thu, 27 Oct 2011 21:24:35 GMT

Thirlwall J held that the defendant householder was not liable in common law negligence or under section 2 of the Occupiers' Liability Act 1957 in respect of personal injuries sustained by the adult claimant (aged 18) who had dived into his private swimming pool and was thereby rendered tetraplegic. Thirlwall J held that the swimming pool had been competently and properly designed and built and was well maintained and accordingly the risk that arose from diving into the swimming pool was caused by the inherent risk in diving and not from the state of the premises. As such, Thirlwall J held that the swimming pool was not unsafe for diving into and therefore the defendant did not owe a duty to make the swimming pool out of bounds to the claimant.

Hodge Jones & Allen LLP v. McLaughlin, QBD, 23/09/11

Thu, 20 Oct 2011 09:46:43 GMT

Michael Harvey QC (sitting as a Deputy High Court Judge) allowed the claimant solicitors' firm's claim for a sum of money in respect of outstanding fees for legal services provided to its former client, the defendant. The defendant had brought a counterclaim for damages for alleged professional negligence. Harvey QC found that whilst the counterclaim succeeded in part in relation to the claimant's admitted fault in two minor respects and which faults were negligent, he found that the defendant had failed to prove that either of those failures had caused her any loss. As such, the defendant was awarded nominal damages in contract of £10.00.

Capita Alternative Fund Services (Guernsey) Ltd & Anor v. Drivers Jonas (A Firm), QBD (Comm), 09/09/11

Thu, 20 Oct 2011 09:44:12 GMT

Eder J held that the defendant surveyors had given negligent advice as to the value and commercial prospects of a factory outlet shopping centre development. Eder J found, inter alia, that the defendant surveyors did not have either the expertise or experience to competently advise as to the development and in taking on the project, they had breached their duty of care to their clients. In considering the measure of damages to be awarded, Eder J held that the claimants were entitled to recover the difference between the value of what they paid for the project and what they would have been paid had they been advised competently and correctly.

Broadfield v, Meyrick Estate Management Limited, CA, 27/07/11

Thu, 15 Sep 2011 19:27:41 GMT

The Court of Appeal dismissed the appellant employee's appeal against the dismissal of her claim against the respondent employer for breach of its statutory duty pursuant to regulation 12(5) of the Workplace (Health, Safety and Welfare) Regulations 1992 to provide a suitable and sufficient handrail. The Court of Appeal held that unless an exception as provided under regulation 12(5) applied, a handrail had to be provided and the burden rested on the employer to establish the existence of such an exception on the facts. In the instant case there was little evidence before the judge below to establish that it would have been impossible to provide a handrail. However, the Court of Appeal found that the judge had been entitled to find that the failure to provide a continuous handrail along the entire length of the staircase had not caused the accident in circumstances where the evidence suggested that the appellant would not have used such handrail to prevent the fall.

Reynolds v. Strutt & Parker LLP, QBD, 15/07/11

Thu, 15 Sep 2011 19:24:35 GMT

HHJ Oliver-Jones QC (sitting as a deputy judge of the High Court) held that an employee who was injured whilst competing in a cycling race organised by his employers was not participating in the event in the course of his employment within the meaning of the relevant health and safety legislation. However, HHJ Oliver-Jones QC held that the partners organising the event had breached their duty of care owed to the claimant employee as neither had properly assessed the need to recommend and/or require participants to wear helmets. In not wearing a helmet, the claimant's contributory negligence was assessed at two-thirds.

Pool v Chartis Insurance, QBD, 13/07/11

Wed, 07 Sep 2011 11:27:54 GMT

It was inappropriate to determine as a preliminary issue whether an insurance company could rely on exclusions clauses in a personal accident insurance policy as to the deceased's state of mind at the time of a fatal car crash; to so would inhibit the trial judge in determining whether his acts had been voluntary.

The trial judge had to decide what the state of the deceased's mind was which would be based in part on the cross examination of experts to determine what he would have been aware of and what decisions he could fairly be said to have made. The facts were not agreed and the consequences of the deceased's behaviour were not agreed. It would be wrong to inhibit the trial judge in relation to the finding that he had to make about whether the deceased's actions were voluntary. It was not appropriate to determine the preliminary issue. It was far better, even though costs were involved, that the issues be determined at trial. The D was ordered to pay the C's costs of and occasioned by the instant hearing. The D had initially served a blanket denial. It amended its defence very late, and had taken a different stance at the instant hearing.

(1) Edward William Nield (2) Acromas Insurance Co Ltd v (1) Graham Jeffrey Loveday (2) Susan Loveday, DC, 13/07/11

Wed, 07 Sep 2011 11:16:45 GMT

A Claimant who had verified his statement of claim and witness statement with a statement of truth that he knew to be false was jailed for 9 months. His wife who had also verified false statements in support of his claim was given a suspended prison sentence of 6 months.

The Claimant had originally brought proceedings for personal injury following an RTA, claiming that as a result of the accident he could not work or drive, was often reliant on a wheelchair, had difficulty walking and coping with stairs and required assistance from his wife. The Defendant adduced surveillance footage from a private investigator which appeared to show he was far more active and able than his claim suggested. The action was therefore settled for significantly less than he had claimed and he agreed to pay the Dâ€™s costs. Contempt proceedings were subsequently brought by D. It was held that the C was guilty of contempt of court. His evidence that he had not read what he had signed was untrue and must have known that his false claims were likely to interfere with the interests of justice. His wife was given some credit in that she had admitted her contempt, however even in his oral evidence the C had attempted to continue with various fabrications.

Marie Ann Wallace v Glasgow City Council, [2011] CSIH 57

Sun, 28 Aug 2011 16:07:00 GMT

Inner House case concerning a clerical assistant at Kirkriggs School in Glasgow who injured herself when she fell from a toilet bowl whilst trying to open a window.

An extra division of the Inner House allowed a reclaiming motion and Ms Wallace was granted damages of £31,800 reduced by 50% in respect of contributory negligence.

The decision turned on the Workplace (Health, Safety and Welfare) Regulations 1992 and in particular on Regulation 15(1) which says:

"No window, skylight or ventilator which is capable of being opened shall be likely to be opened, closed or adjusted in the manner which exposes any person performing such operation to a risk to his health or safety."

The extra division of the Inner House found that regulation 15 (1) required the Council to address the question of how the window might be opened, closed or adjusted. If the Council had carried out a proper risk assessment in relation to the opening of the window they would have discovered the risk of injury to persons of Ms Wallace’s height (5’1”) if no window pole was provided in the toilets or, at least, made very readily accessible at all times nearby.

Lord Tyre had suggested that Ms Wallace should simply have refrained [1] from seeking to open the window. However, in the Inner House, it was considered that this was to ignore the significance of the duty on the Council [2] with regard to the ventilation of areas such as the toilet. It appeared that the only source of ventilation of the cubicle was to be obtained by opening the window. The Court found that:

“A proper risk assessment would have pointed out the risk of someone, like [Ms Wallace], when no window pole was available, seeking to open the window for ventilation purposes either by standing and stretching, which itself could have caused injury, or, alternatively, attempting to reach the window by standing on what appears to have been the sole means of doing so, namely the toilet bowl, which itself would have been dangerous.”

______________________________________________

[1] Having held that it was not reasonable, in the circumstances, to expect her to seek out a taller member of staff to open the window given that she had used the toilet.

[2] Under Regulation 20(1) and (2) of the 1992 Regulations.

Bruce Kirkpatrick v. SoS for Transport and the Deputy Traffic Commissioner for the Scottish Traffic Area, Sheriff Principal Lockhart, Dumfries Sheriff Court, 29th June 2011

Thu, 18 Aug 2011 17:16:36 GMT

Parties and Background
The respondent, Bruce Kirkpatrick, was a large goods vehicle driver for Cameron Young Transport Ltd. His licence was revoked by the second appellant, the Deputy Traffic Commissioner (DTC), in October 2010. Drivers were supposed to carry out double-manned journeys so that they complied with legal driving hours for large goods vehicle drivers. However, Mr Kirkpatrick logged driving hours under other drivers’ names so that it appeared that legal hours had been complied with. The respondent’s licence was therefore revoked by the DTC on the basis that he had falsified records and was no longer a fit or proper person to hold a licence. He was also disqualified from driving large goods vehicles for five years.

Mr Kirkpatrick appealed against this decision in the sheriff court. The sheriff quashed the decision of the DTC to disqualify Mr Kirkpatrick for five years. The sheriff directed that he be disqualified for 18 months instead. The Secretary of State for Transport and the DTC then appealed to the sheriff principal.

Parties’ Submissions
The appellants argued that the sheriff should not have reduced the period of disqualification. The DTC did not act disproportionately and his decision was within the margin of discretion. A disqualification of five years was reasonable.

The respondent submitted that the DTC had taken into account allegations of further falsification that were not proven in the course of his investigation. If these speculative offences were discounted, a disqualification period of 18 months was reasonable.

Decision
The sheriff principal found for the appellants and quashed the decision of the sheriff. The appellants had relied on allegations of falsification and were wrong to do so. However, the sheriff had not taken into account evidence showing that the number of false records created was greater than he had allowed for. He had also not taken into account the way in which false records were created, namely by interfering with recording equipment. These factors merited a longer period of disqualification. The sheriff principal imposed a period of four years’ disqualification, inclusive of the disqualification period that had already elapsed.

Cameron John Young v. SoS for Transport and the Deputy Traffic Commissioner for the Scottish Traffic Area, Sheriff Principal Lockhart, Dumfries Sheriff Court, 29th June 2011

Thu, 18 Aug 2011 16:11:00 GMT

Parties and Background
The respondent, Cameron John Young, was a large goods transport company owner. He held a large goods vehicle licence. His licence was revoked by the second appellant, the Deputy Traffic Commissioner (DTC), in October 2010. Mr Young’s drivers were supposed to carry out double-manned journeys so that they complied with legal driving hours for large goods vehicle drivers. However, Mr Young had allowed another driver to log driving hours under his name so that it appeared that legal hours had been complied with. The respondent’s licence was therefore revoked on the basis that he had ‘aided and abetted’ the other driver in falsifying records. He was also disqualified from driving large goods vehicles for three years. Mr Young appealed against this decision in the sheriff court. The sheriff found in his favour and quashed the decision of the DTC. The Secretary of State for Transport and the DTC then appealed to the sheriff principal.

Parties’ Submissions
The second appellant conceded that there was no justification for the DTC applying the criminal law concept of aiding and abetting to a civil case. It was submitted that Cameron Young's actions in allowing false records to be created under his name called into question his conduct as a driver. The DTC had therefore reached the correct decision.

The respondent argued that the decision of the DTC should have been confined to Cameron Young’s actions as a driver under s.115 of the Road Traffic Act 1988. As he was not driving at the time the records were falsified, he could not be found to be unfit to hold a licence.

Decision
The sheriff principal found for the respondent and refused the appeal. The 1988 Act clearly draws a distinction between conduct as a driver of a motor vehicle and conduct in any other respect relevant to holding a driver's licence. As the respondent was not driving at the relevant time, the decision of the DTC was flawed.

Stephen Lewendon v. International Paper (UK) Limited [2011] CSOH 116

Thu, 04 Aug 2011 21:25:25 GMT

The pursuer sought damages for injuries sustained by him in the course of his employment at the defender’s paper mill. In January 2009, the pursuer’s right arm was drawn into machinery, which latterly required the surgical amputation of this limb to the elbow, preventing him from being able to continue in his employment with the defender. The defender relied upon contributory negligence in defence. Moreover, the defender submitted that the calculation of wage loss would depend on a range of variables, perhaps involving the Ogden Tables, therefore meaning that special cause, to merit the case not being decided by a jury, was shown.

Having heard submissions on this point, the court concluded that it was likely there would be real dispute between the parties on the pursuer’s true wage loss, which would mean two or more calculations using the Ogden Tables before any jury; the issues at stake were likely to be complex and detailed.

The court accepted that civil juries as a matter of course will often be perfectly capable of resolving wage loss disputes with the aid of the Ogden Tables in normal cases. On this occasion however, the case was of a sufficiently difficult nature and involved a multiplicity of calculations, such that the jury’s task would be too difficult. The court therefore concluded that the likely complexities of the case gave rise to special cause for withholding it from jury trial under section 9(b) of the Court of Session Act 1988.

Kent County Council v, Lawrence, QBD, 22/06/11

Thu, 04 Aug 2011 13:55:47 GMT

Eady J allowed the appellant highway authority’s appeal against a decision that it had breached its statutory duty to maintain the highway in respect of a manhole cover which protruded some 15mm above the pavement. Eady held that in determining whether a protrusion was dangerous for the purposes of section 41 of the Highways Act 1980, a judgment had to be made by the court and which judgment should, in general terms, have some regard to financial and other practical constraints on the relevant highway authority. On the evidence, Eady J concluded that a protrusion of 15mm was not such that a reasonable person would regard as presenting a real source of danger. To the extent that the judge had taken into account views of witnesses as to what they considered dangerous, these were irrelevant considerations.

Geary v, JD Whetherspoon Plc, QBD, 14/06/11

Thu, 04 Aug 2011 13:54:52 GMT

Coulson J dismissed the claimant’s claim for damages for personal injury. The claimant had attempted to slide down a set of banisters but fell backwards onto the marble floor below, thereby sustaining a spinal fracture resulting in tetraplegia. On the evidence, it was held that the claimant had accepted the obvious and inherent risk of injury in sliding down the banisters. Coulson J held that as she had voluntarily assumed such risk, this was fatal to her claim. Coulson J further held that that the defendant was not under any duty to protect or prevent her from voluntarily assuming such risk and on that basis, the claim would also fail.

Jamie-Rae Cook (By her litigation friend & Mother Karen Cook) v (1) David Andrew Cook (2) Elizabeth Harriet Walker (2011), QBD, 28/06/11

Thu, 28 Jul 2011 19:44:29 GMT

It was the normal rule, and desirable practice, that all outstanding issues between the parties should, where possible, be resolved at a single hearing and the principle of the public interest in the finality of litigation remained crucial. Further, a judge should not be tempted to invent rules to make up for perceived deficiencies in statutory provision. Although the court had the power to postpone some issues for later resolution, that was to be regarded as a rare or exceptional course requiring some tangible reason to justify it. While from the point of view of a defendant or an insurer there were obvious disadvantages in postponing the resolution of quantum issues, there could be circumstances in which a long-term postponement might be necessary in the interests of justice, where, for example, the nature of the damage was clear but quantification could not yet be meaningfully assessed. The instant case was a complicated one in which the long-term outcomes for C were uncertain and speculative. In order to do justice in accordance with the overriding objective it was plainly right to make an order where the assessment of damages was to be staged.

Santander v David Gallagher (otherwise Gallacher), B844/11

Thu, 28 Jul 2011 15:30:00 GMT

Sheriff Court case concerning the competency of service of a calling up notice under the Conveyancing and Feudal Reform (Scotland) Act 1970.

After having failed to find Mr Gallagher, Sheriff Officers instructed by Santander, purported to serve the notice on Mr Gallagher by putting it through his letter box. Santander sought to argue that service in this way satisfies s19(6) of the 1970 Act which says:

"For the purposes of the foregoing provisions of this section, the service of a calling-up notice may be made by delivery to the person on whom it is desired to be served or the notice may be sent by registered post or by the recorded delivery service to him at his last known address, or, in the case of the Lord Advocate, at the Crown Office, Edinburgh, and an acknowledgment, signed by the person on whom service has been made, in conformity with Form C of Schedule 6 to this Act, or, as the case may be, a certificate in conformity with Form D of that Schedule, accompanied by the postal receipt shall be sufficient evidence of the service of that notice; and if the address of the person on whom the notice is desired to be served is not known, or if it is not known whether that person is still alive, or if the packet containing a calling-up notice is returned to the creditor with an intimation that it could not be delivered, that notice shall be sent to the Extractor of the Court of Session, and shall be equivalent to the service of a calling-up notice on the person on whom it is desired to be served."

Santander referred to the unreported decision Household Mortgage Corporation plc-v-Diggory (1997) in which it was found that physical delivery to the debtor was not required where service by recorded delivery post was employed.

However, Sheriff Mackie found that Santander’s calling up notice had not been competently served. In terms of s19 (6) service can be made:

by delivery in person (which means the creditor has to place the document in the hands of the debtor);
by recorded delivery at the last known address of the debtor (no personal delivery is required and, so long as the document is not returned with intimation that it could not be delivered, then it can be presumed to have been served); or
by notice to the Extractor of the Court of Session (which refers to a situation in which the notice is valid even though the debtor knows nothing about it).

Whilst service by recorded delivery does not require that the document is physically delivered, that does not mean that alternative modes of service do not require to involve physical delivery.

Sheriff Mackie also made reference to Rule 5.4 of the Sheriff Court Rules which provides that a Sheriff Officer can serve a document by depositing it at an address after making due enquiries. She noted, however, that this only applies to official functions carried out under Act of Sederunt (Messengers-at-Arms and Sheriff Officers Rules) 1991. When serving the calling up notice, the Sheriff Officers were carrying out an extra official function (i.e. not an official function) and, as such, the calling up notice required to be served in accordance with s 19(6) of the 1970 Act.

R (on the application of McDonald) (Appellant) v Royal Borough of Kensington and Chelsea (Respondents), [2011] UKSC 33

Thu, 14 Jul 2011 09:52:29 GMT

Background

This appeal concerns the question of whether the Royal Borough acted unlawfully in seeking to amend Ms McDonald’s care package by substituting her night time carer with provision of incontinence pads or absorbent sheets when Ms McDonald was not in fact incontinent.

This case shows how cruel ill health can be. Some 30 years ago Ms McDonald was the prima ballerina of Scottish Ballet. In 1999 Ms McDonald suffered a stroke leaving her with severely limited mobility. She also suffers from a small and neurogenic bladder which means she has to urinate two or three times a night. Up until now she has dealt with this by using a commode with the help of a carer provided by the Royal Borough as part of her care package.

In November 2008 the Royal Borough proposed instead that the appellant should use pads, avoiding the need for a night-time carer. The Royal Borough argued that this would provide Ms McDonald with greater safety (preventing the risk of injury whilst she is assisted to the commode), independence and privacy and in addition reducing the cost of her care by some £22,000 per annum. Ms McDonald’s care plan was reviewed in November 2009 and April 2010.

Ms McDonald seeks to challenge this proposal. Ms McDonald maintains that the thought of being treated as incontinent (which she is not) and having to use pads is an intolerable affront to her dignity.

Earlier judgments

The High Court dismissed Ms McDonald’s arguments and held that it was open to the Royal Borough to meet Ms McDonald’s need, identified in her needs assessment as “assistance to use the commode at night”, in a more economical manner by the provision of pads.

The Court of Appeal disagreed holding that the clear language of Ms McDonald’s needs assessment could not be extended in a way proposed by the High Court and at the time proceedings were commenced the Royal Borough was in breach of its statutory duty. However, as the Royal Borough did not implement the proposal outlined above and had reassessed Ms McDonald’s care plan Ms McDonald had no substantial complaint.

Supreme Court judgment

By a majority of 4-1 Ms McDonald’s appeal was dismissed.

Reasoning

Ms McDonald put forward four arguments (The Supreme Court’s reasoning is outlined below each heading):

1. The care plan reviews did not in fact contain a reassessment of her needs

In accordance with the “Fair Access to Care Services” guidance issued by the Secretary of State, the care review plans could and did in fact incorporate a review of Ms McDonald’s needs. Care plan reviews are usually drafted by social workers and not lawyers and thus should be construed in a practical way.

2. The decision breached Ms McDonald’s rights under article 8 of the European Convention of Human Rights

Ms McDonald had not established interference with her article 8 rights. However, even if article 8 interference was established, it would be justified under article 8(2) on the ground that it is (a) necessary for the economic well-being of the Royal Borough and the interests of other service-users and (b) a proportionate response to Ms McDonald’s needs by affording her greater privacy and protection from injury.

3. The decision was taken in breach of section 21 of the Disability Discrimination Act 1995

Under section 21 the Royal Borough may not operate any “practice, policy or procedure” which makes it impossible or unreasonably difficult for disabled persons to receive any benefit conferred on them. Ms McDonald failed to show that the Royal Borough’s decision could properly be characterised as “practice, policy or procedure” and thus the Royal Borough did not breach its second 21 duty. Even if that were not so, the Royal Borough’s acts would have been justified as constituting “a proportionate means of achieving a legitimate aim” within the mean of section 21D(5) of the 1995 Act.

4. The Royal Borough failed to have due regard to the need to promote equality of opportunity of disabled persons under section 49A of the Disability Discrimination Act 1995 (now superseded by comparable provisions in the Equality Act 2010)

Where the Royal Borough is discharging its functions under statutes which expressly direct its attention to the needs of the disabled persons, it may be entirely superfluous to make express reference to section 49A of the 1995 Act. It would be absurd on the facts of the present case to infer a breach of section 49A from an omission to refer to that section in any of the Royal Borough’s documentation.

Dissenting opinion

The dissenting Justice would have allowed Ms McDonald’s appeal on a different basis outlined by Age UK in its intervention, namely that it was irrational for the Royal Borough to characterise Ms McDonald as having a need different from one she in fact has.

Eileen Jane O'Neill v. University of the West of Scotland [2011] CSOH 52

Thu, 07 Jul 2011 22:10:11 GMT

The pursuer had been an employee of the defenders when she was involved in an accident at work. She sued for her injuries, relying on Regulations 5(1), 12(1) and 12(3) of the Workplace (Health, Safety and Welfare) Regulations 2003. Quantum was agreed in this case; the only outstanding issues before the court were the matters of liability and any element of contributory negligence on the part of the pursuer.

At proof, the court heard that the pursuer tripped over a single step at the height of 110 cms in a doorway, having entered the relevant building from the outside. To the pursuer’s mind, the surface she was stepping on to was flat; she did not see the step and consequently tripped, falling to the floor with outstretched arms, sustaining a broken arm.

The court noted that it had no difficulty in concluding that the step represented a safety hazard and presented a real risk of injury to those that worked within the building. Safety measures taken by the defenders were not sufficient to eliminate this risk and consequently, the court found the defenders in breach of Regulation 12(1). While the court accepted that the pursuer was under some duty to take reasonable care where she placed her feet and to take reasonable care in her surroundings, the court found that there was nonetheless no basis for a finding of contributory negligence as the step was not marked as a hazard and the decoration of the building added to the greyness of the floor and the perceived flatness of the surface. Decree granted for the sum of £15,500 in favour of the pursuer.

Tafa v, (1) Matsim Properties Ltd (2) Gilling-Smith (3) Agora Gynaecology & Fertility Centre Ltd, QBD, 23 May 2011

Fri, 01 Jul 2011 11:23:44 GMT

King J held that a commercial tenant (D3) and its company director (D2) were both personally liable in negligence and for breach of statutory duties pursuant to the Construction (Health, Safety and Welfare) Regulations 1996 and the Work at Height Regulations 2005 in respect of personal injuries sustained by a workman employed by a contractor engaged by D2 and D3. King J held that D3, through D2, had control over the works being carried out on site and such as to trigger the personal obligations under the Regulations. King J further held that they had breached their statutory duties by failing to ensure that the workman was adequately supervised and in failing to ensure that the works at height were, inter alia, properly planned, supervised and carried out in a reasonably safe manner.

Belka v, Prosperini [2011] EWCA Civ 623, 26 May 2011

Fri, 01 Jul 2011 10:25:00 GMT

Court Of Appeal Upheld Judge’s Finding That A Pedestrian Stepping Into Path Of Oncoming Vehicle Was Two-Thirds Responsible For Accident

The Court of Appeal dismissed the Claimant’s appeal against a decision that he should bear two-thirds of the responsibility for a road traffic accident. The judge found that the Claimant pedestrian had, upon entering the carriageway, deliberately run the risk of trying to cross in front of the Defendant’s vehicle (which had right of way). Whilst the fault of the Defendant had been not to ease off his speed, the Court of Appeal took the view that the Claimant’s actions were more blameworthy and thus found that the Judge had not erred in his apportionment of liability based upon his findings.

Boris Abramovich Berezovsky v Roman Arkadievich Abramovich [2011] EWHC 1143 QBD (Comm)

Fri, 01 Jul 2011 09:44:40 GMT

In circumstances where a party had deliberately chosen, in the context of the summary judgment application, to waive legal professional privilege by referring extensively to the contents of a former business associate’s interviews with his former solicitors in order to support his case on the merits of his claim, it would not be just, fair or consistent with the principles expounded in the authorities to permit him, on the simple pretext of saying, that he had not made up his mind whether to refer to such evidence at trial, to withhold disclosure of the underlying privileged materials relating to such interviews. To allow him to do so would amount to cherry-picking of the worst kind. It would give him the unjust advantage of deploying privileged and possibly selective (or partial) materials for the purposes of surmounting the summary judgment hurdle, but not requiring him to give full disclosure of the underlying materials for the purposes of trial, in circumstances where there was no dispute that, if the evidence were indeed deployed at trial, such disclosure would have to be made.

Walid Khatib v Ramco International & 6 Others, CA (Ch), 18/05/11

Fri, 01 Jul 2011 09:40:48 GMT

The applicant appealed following the striking out of his claim for breach of an Unless Order. The CA held that the judge was not wrong in failing to go through each of the factors set out in r.3.9 and ticking them off and assigning them to one side of the balance or the other. Too rigorous an approach to the manner in which they had to express their reasoning was undesirable in principle and unnecessary in practice. A trial judge had to be aware of rule 3.9 and of the particular factors said on either side to be relevant, according the evidence and the circumstances of the particular case and conduct an appropriate review and balancing exercise.

Where the Claimant had chosen to waive legal privilege in a summary judgment application it would be appropriate to order him to give specific disclosure of all the relevant material under the principle of collateral waiver.

Zurich Insurance Co Plc v Colin Richard Hayward, CA, 27/05/11

Fri, 01 Jul 2011 09:36:44 GMT

An action by an insurance company alleging that the settlement of an earlier PI action was obtained by fraud and/or misrepresentation should not have been struck out.

An insurance company appealed against a decision to strike out its claim for fraud and/or misrepresentation following the settlement of a personal injury action. Following settlement, new information came to light that the Claimant had made a complete recovery a year before settlement. It was held that a consent order created an estoppel if the parties to the second action were the same as the parties to the first and the issues raised in the second action were necessarily compromised in the first action. Although an allegation that a disability was being exaggerated for gain amounted to fraud and that allegation of fraud was similar to the allegation made in the second action, it was not the same allegation and it was not clear exactly what was compromised in the first action. The insurance company was not estopped from alleging that the settlement was obtained by fraud. The second action was not an abuse of process. Finality of litigation was desirable for many reasons but in the context of the instant case the principle was designed to protect a litigant from being vexed more than once by the same allegations. The public interest in the integrity of the administration of justice and the private interests of the insurance company in seeking the investigation of the allegations of fraud far outweighed the public interest in the finality of litigation and the Defendant’s wish to avoid a second action (per Smith LJ).

In determining relief from sanctions the court should not apply a formulistic approach.

Anne Virdee v. Duncan Stewart [2011] CSOH 50

Thu, 30 Jun 2011 23:19:59 GMT

The pursuer and defender to this action were sister and brother, respectively. The defender had inherited a family croft at Kilmory, Acharacle in 1989, the land upon which the pursuer subsequently constructed a house for the use of her and her family. In this action, the pursuer claimed she was entitled to recompense from the defender on the basis that he had been unjustly enriched through this event, at her expense.

Following construction of the house, the pursuer told the defender that he was permitted to use the house whenever it was unoccupied. By 2009 however, the parties’ relationship had deteriorated and the defender had taken over occupation and possession of the house entirely.

The defender argued that he was enriched when the house was constructed in August 1994 and that therefore, section 6 of the Prescription and Limitation (Scotland) Act 1973 applied to this situation, meaning that as five years had passed since the obligation on which the pursuer founded came into existence, that obligation had been extinguished. The defender therefore submitted that any claim for recompense that the pursuer once had, was now prescribed.

The Lord Ordinary agreed with the submissions of the defender, noting that the defender was enriched as soon as the construction of the house was completed. Decree of absolvitor granted.

Chandler v Cape Plc [2011] EWHC 951 (QB) 14/04/2011

Thu, 09 Jun 2011 16:03:51 GMT

Parent Company Held To Owe Duty Of Care To Employee Of Subsidiary Company

Jones v First Tier Tribunal (Social Entitlement Chamber) [2011] EWCA Civ 400 12/04/2011

Thu, 09 Jun 2011 16:01:27 GMT

Suicidal Act Can Constitute A Crime Of Violence For The Purposes Of The Criminal Injuries Compensation Scheme

Dalling v R J Heale & Co Ltd [2011] EWCA Civ 365 05/04/2011

Thu, 09 Jun 2011 16:00:35 GMT

The Court of Appeal upheld the trial judge’s decision that the appellant employer was two-thirds responsible for further head injuries sustained in a second accident some 3.5 years after the index accident (in which he had sustained head injuries leaving him with executive dysfunction) and which were sustained when the respondent employee fell over whilst intoxicated. The judge accepted expert evidence to the effect that the head injuries sustained in the first accident had reduced the employee’s ability to control his drinking and had the effect of potentiating the effect of alcohol upon him. The Court of Appeal held that the judge had been entitled to hold that the injuries sustained in the second accident were causally related to the first accident and that it was not unfair or unjust to hold the appellant liable to the extent of two-thirds of such subsequent injuries. In particular, the employee’s actions in getting drunk when the second accident occurred was not an act of free volition but rather was an act for which both he and the appellant were jointly and partly responsible.

Harty v Sabre International Security Ltd & Anor [2011] EWHC 852 (QB) 05/04/2011

Tue, 07 Jun 2011 17:02:15 GMT

An application to stay a personal injury action on the basis that England was not the most appropriate forum was refused.

Football Dataco Ltd & Ors v Smoot Enterprises Ltd & Anor (Rev 1) [2011] EWHC 973 (Ch) 14/04/2011

Tue, 07 Jun 2011 17:01:26 GMT

Judgment in default pursuant to a Part 23 application was not a judgment on the merits

Montgomery v Brown [2011] EWHC 875 (QB) 08/04/2011

Tue, 07 Jun 2011 17:00:28 GMT

An application for committal for contempt was refused where it could not be proved to the required criminal standard that the Claimant had deliberately and dishonestly presented a fraudulent claim

John McCabe v. The Royal Mail Group Plc., Sheriff George Way, Dundee Sheriff Court, 13th April 2011

Wed, 01 Jun 2011 18:04:40 GMT

Parties and Background:
The pursuer was a 56 year old mail delivery driver employed by the defenders in Dundee. This was an action for damages for personal injuries sustained in the course of employment. The pursuer’s duties included sorting mail into bags and pouches and loading these into a delivery van. In June 2004 he developed an inguinal hernia and weakness in his groin. On 27th August 2004 the pursuer suffered serious pain in his groin when lifting a mailbag. He underwent surgery to repair the hernia in December 2004 and returned to work on 7th February 2005, undertaking light duties. He returned to full duties in August 2005.

In June 2008 it was discovered that the pursuer had developed another hernia which was repaired in November 2008. By August 2009 the pursuer was suffering pain in his left groin area when and was struggling at work. The defenders’ occupational health consultant recommended early retirement with a lump sum. This was accepted by the pursuer who retired on 15th August 2009.

Parties’ Submissions:
The pursuer argued that the injury suffered on 27th August 2004 was caused through the fault of the defenders either at common law or in breach of Regs 4(2)(i) and (ii) of the Manual Handling Regulations. This led, ultimately, to his early retirement. It was reasonably forseeable that the injury would occur and the defenders had not ameliorated this risk.

The defenders averred that no breach of statutory duty had occurred. Even if it had, the breach did not cause the injury, loss and damage claimed. The pursuer underwent surgery which he would have endured in any event. If damages were to be awarded a figure of £2200 for solatium was appropriate.

Decision:
The sheriff found for the defenders and held that the pursuer had failed to prove that any loss, injury and damage sustained by him were caused by the defenders' breach of either common law or statutory duty. Decree of absolvitor was granted in favour of the defenders.

John McCabe v. The Royal Mail Group Plc., Sheriff George Way, Dundee Sheriff Court, 13th April 2011

Wed, 01 Jun 2011 18:04:10 GMT

Robert Clelland v. (1) Department for Business, Enterprise and Regulatory Reform & (2) The Scottish Coal (Deep Mine) Company Limited (in liquidation) [2011] CSOH 46

Mon, 30 May 2011 21:23:58 GMT

The pursuer had been employed as a power loader in the mining industry between about 1976 and 2002, when he was made redundant. He had developed Hand Arm Vibration Syndrome ("HAVS") and has been partially compensated for this by the defenders. In particular, he has received payments from the defenders for solatium, disadvantage on the labour market and necessary services, and this proof was in relation to an outstanding issue of dispute between the parties: whether the pursuer had a valid claim for loss of earnings during the period from 12 August 2003 to 1 May 2007.

Having heard evidence, the court concluded that the pursuer had been offered the opportunity to work in the wheelie bin cleaning business in January 2003, but had been unable to take up this opportunity due to his HAVS. The court found that had the pursuer been able to take up this opportunity, he would have been put in charge of a new van operating the business, and his income would have entirely depended on how many new customers he was able to obtain from operating the new van. The court found that any indication of wages from this enterprise could only have been an estimate, and not a guarantee of earnings. The court found that the pursuer had accordingly lost an opportunity to work in and expand the business, and had also lost an opportunity to earn an income that would have been paid to him, in the event that the expansion of the business was successful.

Accepting the pursuer’s submissions that the court should take a broad approach to the assessment of loss of earnings in the whole circumstances, the court accepted that the pursuer would have been likely to take up the job, and would probably have made a success of it (or there was a reasonable chance of success). Noting however that the pursuer’s earnings would have likely fluctuated, the court awarded one third of the figure of £22,500 viz £7,500 to cover loss of earnings over the relevant period. In doing so, the court rejected the defender’s submission that to make such an award would be unduly speculative.

Kevin Ruddy v. (1) William Rae, Chief Constable of Strathclyde Police and (2) Elish Angiolini Q.C., the Lord Advocate [2011] CSIH 16

Tue, 24 May 2011 17:11:39 GMT

This action was an appeal against an interlocutor of the Sheriff Principal at Glasgow upholding a decision of the Sheriff, who had excluded certain averments of the pursuer and the appellant, and had excluded certain craves against the first and second defender.

The appellant had alleged that on 6 September 2004, officers of Strathclyde Police assaulted him in various ways, to his loss, injury and damage. Damages for the sum of £10,000 were sought. The appellant had also averred that the actings of the officers amounted to degrading treatment, incompatible with Article 3 ECHR. A subsequent enquiry into the actings of the officers was also criticised by the appellant, who had averred that the Lord Advocate was in breach of the Article 3 investigatory obligation, for failing to properly consider the matter and in deciding that no criminal proceedings should be brought against the officers.

The Inner House noted that the initial writ of the appellant amounted to somewhat of an "omnibus" of claims, all made against different defenders. The court noted that it amounted to one action, brought against two different defenders, with three distinctive juristic bases of claim being made. Despite this, and the fact that the Article 3 investigatory obligation breach was clearly a claim of administrative review and should have brought in the Court of Session, the court noted that neither of the defenders had raised incompetency grounds before the Sheriff. Indeed, the court noted that the Sheriff had been restricted to instead assessing the relevancy of the claims.

The court noted that the Scottish system of pleading does not, and should not, provide for a claim to address three distinct issues, distinguishable in fact and law, against two separate defenders, as in the present case. These types of omnibus pleadings, the court noted, would defeat the purpose of having rules of procedure, to avoid undue complexity and keep good order in the process of litigation. The Inner House noted that the matters raised in the action, particularly in relation to the alleged Article 3 breach, were of such fundamental importance and significance that the action fell to be dismissed as incompetent.

Lisa Wardle v. Scottish Borders Council, Sheriff Principal Edward F Bowen QC, Edinburgh Sheriff Court, 31st January 2011

Fri, 22 Apr 2011 16:42:48 GMT

The pursuer (and appellant) was a nine year old girl who climbed into the rafters of a shelter in the playground of her primary school where she fell and injured her wrist. The defenders (and respondents) were the local authority whom the pursuer sued for breach of s.2(1) of the Occupiers Liability (Scotland) Act 1960.

First Instance Proceedings
The pursuer submitted that the defenders knew or ought to have known there was a real risk that children would play within the shelter and attempt to use the rafters during play. In the circumstances they had a duty to take reasonable care to see that children could not gain access to the wooden rafters by boarding them up. The defenders submitted that the accident was wholly caused, or at least materially contributed to, by fault on the part of the child. The shelter was not inherently dangerous and staff were unaware of children having played on the rafters prior to the accident. At first instance the sheriff found for the defenders. The basis of the sheriff's conclusion was that the accident was not foreseeable to staff at the school. The pursuer appealed.

Appeal and Decision
The sheriff principal found for the pursuer and sustained the appeal. It was not necessary to prove that staff knew that children actually climbed into the rafters. The test was whether the accident could have been foreseen by an objective reasonably careful person. In this case the accident was foreseeable. The defenders had a duty of care towards the child under s.2(1) to take such care for her as was reasonable in all the circumstances. They ought to have rendered the exposed rafters inaccessible by putting up boarding but did not do so. Decree was awarded in the sum of £2,000 (inclusive of a 50% reduction of damages for contributory negligence).

Anthony Davis v. University of Aberdeen, Sheriff J K Tierney, Aberdeen Sheriff Court, 25th February 2011

Sat, 16 Apr 2011 10:07:00 GMT

The pursuer was employed by the defenders as a porter. One of his duties involved delivering mail around the university. On the 6th January 2009 the pursuer slipped on ice on an ungritted on-campus path while carrying out his duties. He suffered injuries to his back and sued the defenders for breach of their obligation under paragraph 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1922.

Parties’ Submissions
The pursuer submitted that the defenders had failed to take reasonable care to discharge their duty under the Regulations. They had not considered other ways of gritting the area before the pursuer was required to walk on it, nor had they given consideration to keeping workers such as the pursuer away from the area until it was free from ice.

The defenders submitted that they had discharged their duty by implementing a considered schedule of works for dealing with ice on roads and footpaths. They had checked the weather and had provided for an early response. The pursuer was seeking to apply an impossibly high standard as conditions on the day were changing all the time.

Decision
The sheriff found for the pursuer and granted decree in the sum of £3,914. The defenders failed to discharge their duty under the Regulations to take reasonably practicable steps to keep the surface of the path free from ice. There was no evidence of any formal risk assessment associated with the schedule of works. The defenders knew that, under the schedule, the pursuer and other workers would have to use ungritted paths for some time before they were cleared. The defenders had not addressed the risk to workers of the known presence of ice on the path, nor had they considered keeping employees away from the path.

Baker (Respondent) v Quantum Clothing Group Limited (Appellants) and others, 13/04/2011, [2011] UKSC 17

Fri, 15 Apr 2011 00:13:21 GMT

This appeal concerns the liability of employers in the knitting industry of Derbyshire and Nottinghamshire for hearing loss suffered by employees prior to 1 January 1990. The central issue is whether liability existed at common law in negligence and/or under s.29(1) of the Factories Act 1961 towards an employee who suffered noise-induced hearing loss due to exposure to noise levels between 85 and 90dB(A)lepd.

Mrs Baker brought a claim against her employers, for whom liability now rests with Quantum Clothing Group Ltd, one of the Appellants. Mrs Baker’s claim was dismissed on the basis that her employers had not committed any breach of common law or statutory duty.

The Court of Appeal allowed an appeal by Mrs Baker and reached conclusions less favourable to all four employers than those arrived at by the judge at first instance. The Court held that liability at common law arose in January 1988 for employers with an average degree of knowledge, which included Guy Warwick. Quantum, Meridian and Pretty Polly were found to have had greater than average knowledge and were liable at common law from late 1983.

The Supreme Court allows the appeal by a majority of 3:2 and restores the judge’s decision at first instance. Lord Mance gives the lead judgment. Lord Dyson gives an additional concurring judgment, and Lord Saville agrees with both. Lord Kerr and Lord Clarke give dissenting judgments.

The Supreme Court first dealt with common law liability in negligence. The central question was whether a 1972 Code of Practice published by the Department of Employment, which recommended a noise exposure limit of 90dB(A)lepd, constituted an acceptable standard for average employers to adhere to during the 1970s and 1980s. The judge at first instance had found that it did until the terms of a draft European Directive of 1986, which proposed a lower limit, came to be generally known in 1988 via a consultative document. The Court upheld that conclusion of the judge. Examination of the underlying statistical material did not undermine the relevance of the Code as a guide to acceptable practice. It was official and clear guidance which set an appropriate standard upon which a reasonable and prudent employer could legitimately rely in conducting his business until the late 1980s.

The Court also endorsed a further two year period beyond 1988 allowed by the judge for implementing protective measures, thus meaning that the average employer had no common law liability before 1 January 1990. The Court of Appeal had been incorrect to replace that period with a period of six to nine months. On the facts, Quantum and Guy Warwick were in the position of average employers to whom the 1 January 1990 date applied. Courtaulds and Pretty Polly, however, were in a special position. By the beginning of 1983 they had an understanding of the risk that some workers would suffer damage from exposure to between 85 and 90dB(A)lepd, which distinguished their position from that of the average employer. Allowing a further two years to implement protective measures, they were potentially liable at common law from the beginning of 1985.

The Court then dealt with liability under s.29(1) of the 1961 Act. In construing the section, the Court first held that a workplace may be unsafe within the meaning of the section not only due to its physical fabric, but also due to activities carried on in it. The next question was whether the section applies to risks created by noise. The Court held that it did, on the basis that the section could accommodate attitudes to safety that were not held at the time when it was enacted. Thirdly, the Court held that what is “safe” is a relative concept that must be judged having regard to general knowledge and standards at the time of the alleged breach of duty. Finally, the Court held that the qualification, “so far as is reasonably practicable”, also allows such general knowledge and standards to be taken into account. Applying that construction, the section did not impose in this respect a more stringent liability than at common law. The employers by complying with the Code of Practice were not in breach of the statutory duty before like dates as those from which they were potentially liable at common law.

Lord Kerr and Lord Clarke dissented. They held that the terms of the Code of Practice and other material available by 1976 were such that employers should have been aware that damage to hearing could occur at levels below 90dB(A)lepd and that certain individuals in the workforce would be particularly vulnerable at those levels. Further, the employers should have been aware that they could have reduced that risk at not inordinate cost by the provision of ear protection. Liability therefore arose at common law from the late 1970s onwards. As to liability under s.29(1), the concept of safety, unlike the qualification of reasonable practicability, does not include an assessment of what was foreseeable at the time. On the facts, the workplaces were not safe and it was reasonably practicable to provide ear protection. The dissenting Justices therefore held that employers were liable under the section from 1978 as held by the Court of Appeal.

MRK1 Limited v. (1) Mohammed Zahir Sakur and Suneia Momade and (2) the firm of Sara Properties [2011] CSOH 34

Thu, 07 Apr 2011 21:51:09 GMT

In this action, the pursuers sought implementation of missives, which the parties had entered into in 2008, for the purchase of subjects at Dens Road Market, Dundee. The pursuers sought payment of the purchase price from the defenders, totalling the sum of £1,550,000. The defenders denied their liability to implement the missives, on the grounds that they had been induced to enter into the contract through the fraud of the pursuers and others.

Following the defenders’ difficulties in lodging appropriate written defences through various sets of agents, the pursuers had had various awards of expenses successfully granted. These awards of expenses remained outstanding and arrestment was sought. The defenders argued before the Lord Ordinary that such arrestment orders prevented them having sufficient funds to instruct their solicitors to investigate their case and prepare defences to the claim on its merits. It was argued in this motion that the defenders would have to withdraw from the action, unless the arrestment order was recalled.

This motion for recall of the arrestment was refused by the Lord Ordinary on the ground that it would prejudice the pursuers’ enforcement of their expenses to date, and in any event, recall of the arrestment would lead to further delay, in circumstances in which the defenders had already had ample opportunity to state their defences. Motion refused.

Mark Andrew Aikman v. Elizabeth Bond [2011] CSIH 11

Sun, 27 Mar 2011 22:43:23 GMT

In this action for damages for failure to implement missives, the defender had failed to attend court and find caution, leading to decree being granted in favour of the pursuer. The defender appealed to the Sheriff Principal, and subsequently the Court of Session, arguing that a stateable defence in relation to quantum was indeed available to be plead by the defender, pending her application for legal aid to allow her to instruct agents. It was also latterly argued that the missives in question had been concluded by her original agents without instruction.

The court considered the defences offered by the defender to be contradictory of admissions on the record and on appeal documents, and had the hallmarks of “opportunistic intervention”. The court concluded that the only stateable defence the defender had was restricted to quantum only. Having heard submissions, the court thought that the difference between decree and the proposed quantum only amounted to £10,000.

Against the background of the pursuer’s legal expenses to date in bringing the action, the court was satisfied that injustice to the pursuer would result if the action were allowed to proceed on the defences. In light of the defender’s failure to comply with the procedural timetable of the case, the appeal was refused.

Elizabeth McLachlan v. Early Learning Centre [2011] CSOH 25

Tue, 22 Mar 2011 23:00:05 GMT

On 20 October 2007, the pursuer sustained injury in an accident at work while employed by the defenders as a senior sales assistant at their retail premises at Parkhead Forge, Glasgow. The pursuer fell from a ladder while attempting to retrieve a box from a high shelf in the stockroom of the premises. The defenders admitted liability to make reparation to the pursuer in respect of their breach of regulation 6(2) of the Work at Height Regulations 2005.

The defenders argued that the pursuer had been contributorily negligent in her actions. While the Lord Ordinary noted that it was clear from the evidence that the pursuer was scaling a ladder when she should not have been required to do by her employers, the court found that in the absence of any latent defect with the ladder itself, the pursuer must to some extent have been careless when retrieving the item from the racks. The Lord Ordinary noted that a non-defective A-frame ladder would not simply collapse without some unbalancing force having been applied to it, and concluded that such a force could have been created if the pursuer transferred her whole weight from the racking back to the ladder when attempting to descend. The court determined that a reduction of 25% of damages would be applied in recognition of contributory negligence.

The Lord Ordinary assessed the total value of the claim as £12,800 and after reduction, granted decree for the sum of £9,600.

Sara Buxton v Direct Line Insurance plc, Sheriff William Holligan, Edinburgh Sheriff Court, 29th December 2010

Thu, 10 Mar 2011 22:48:00 GMT

In this personal injury action, the pursuer (a student who worked part-time in a supermarket) sought damages following a road accident on 29th July 2009. Liability was admitted and the pursuer’s claim for inconvenience was agreed at the sum of £50, in terms of the parties’ joint minute. The issue in this case was the amount of damages for solatium.

As a result of the accident, the pursuer sustained low back pain and experienced travel anxiety and feelings of panic and stress. She attended her GP and used painkillers (Tramadol, Paracetamol and Ibuprofen). She also had five to six physiotherapy sessions. She was off work for one day, but found reaching and lifting painful and her movement at work was restricted. She also suffered from some discomfort in sleeping as a result of her pain. She was no longer able to go snowboarding once a week; this was reduced to once a month. The pursuer made a full recovery from her injuries within 6 months of the accident (her travel anxiety settled within 4 months and back pain within 6 months).

It was submitted for the pursuer that an appropriate solatium award would be £2500. The defenders submitted that £1500 would be appropriate. Both parties referred to various authorities in their submissions.

The Sheriff noted that while all claims for damages are fact specific and involve an element of subjectivity, it is important to achieve a degree of consistency in awards of a similar nature. Having considered the circumstances of the case and the range of awards in the authorities referred to by the parties (with particular importance placed on the decisions of Sheriff Principal Bowen QC in the Sheriffdom), the Sheriff awarded £2000 by way of solatium, to which £50 in damages for inconvenience was to be added. It was agreed interest should run at 4% from 29th July 2009 for 6 months and 8% thereafter. A hearing on expenses was assigned.

Healthcare at Home Ltd v. The Common Services Agency [2011] CSOH 22

Tue, 08 Mar 2011 20:55:32 GMT

In this action, the pursuer sought the setting aside of a decision of the defender to award a Framework Agreement to BUPA Home Healthcare Ltd. The Framework Agreement was for an extendable period of two years and was for a compounding, dispensing and delivery service of Trastuzumab, with a nursing administration and support service, to the homes of patients or other agreed designated delivery points within Scotland.

The court had previously granted a motion for recovery of documents pertaining to the tender process however BUPA intervened to oppose these documents being given to the pursuers, due to their confidential nature. Counsel for BUPA submitted that the documents would provide material assistance to its competitors (including the pursuer), and that sight of the material was not necessary for the proper resolution of the issues in the litigation. Counsel for the pursuer conversely submitted that when handling confidential documents, the court was required to carry out a balancing exercise, weighing the confidentiality and commercial importance of such documents against the degree to which the proper disposal of the litigation might be hampered by non-disclosure.

Having heard submissions, the Lord Ordinary noted that while there was a clear public interest in maintaining commercial confidentiality, there was also an important public interest in the proper administration of justice. Noting that BUPA’s claim to confidentiality was not particularly strong, the court noted that the documents contained no sensitive technical or scientific information, and fell only towards the lower end of sensitivity. While the Lord Ordinary noted that several of the documents contained a docquet stating that the contents of the document were strictly confidential and were not to be divulged to any third party without the prior written permission of BUPA, the court considered that these notices fell short of proper “written notice” in terms of the Invitation to Tender. Carrying out the balancing exercise required, the Lord Ordinary noted that the commercial sensitivity of the documents was so low as to yield to the disclosure of the information.

Child Maintenance & Enforcement Agency v Garry Smith, Temporary Sheriff Principal C G McKay, Dumfries Sheriff Court, 7 January 2011

Tue, 08 Mar 2011 10:01:04 GMT

The pursuers (and appellants) were the Child Maintenance and Enforcement Agency. The defender (and respondent) had allegedly failed to make child maintenance payments to the pursuers under a Liability Order dated 21st May 2008.

First Instance Proceedings:
This was an appeal in a summary application under the Child Support Act 1991, s.39A of which provides that an inquiry must be held into the circumstances of non-payment. This inquiry was to take place by way of a proof on the 28th January 2010. On that date the pursuers were prepared to lead evidence but were not given an opportunity to do so. Instead the sheriff accepted an explanation about the circumstances of non-payment from the defender, who had not been put on oath, without affording the pursuers the opportunity to test this evidence. He then proceeded to make findings in fact based on this unchallenged information and dismissed the application of the pursuers.

Parties’ Submissions:
The pursuers submitted that the Sheriff had failed to conduct a s.39A inquiry. The hearing had not been conducted in accordance with the principals of civil litigation as the pursuers were not able to challenge the evidence accepted by the court. The defender was not present at the appeal therefore made no reply.

Decision:
The sheriff principal held that in the Scottish adversarial system the only way of determining facts in a contested case is by way of a proof. At the hearing on 28th January the sheriff took account of what the defender had to say but did not allow that "evidence" to be tested in the normal way. Accordingly there had been no inquiry as required by s.39A of the 1991 Act.

The sheriff principal allowed the appeal and recalled the interlocutor of the first instance sheriff. He remitted the case to a new sheriff for a proof in terms of s.39A of the 1991 Act. No expenses were found due to or by either party.

Craig Montgomery v. Direct Line Insurance PLC, Sheriff Kathrine EC Mackie, Edinburgh Sheriff Court, 31st January 2011

Mon, 07 Mar 2011 09:30:54 GMT

The pursuer was involved in a road traffic accident with the defender’s insured on 22nd July 2009 in Dalkeith. The parties agreed that the accident was caused by the fault and negligence of the defenders' insured. They also agreed upon the value for services rendered by the pursuer’s wife (£100) and a sum for inconvenience (£25). The only issue in dispute was the amount of solatium to be awarded in respect of injuries sustained.

Injuries and Recovery:
The pursuer required to be cut from his car and was taken to A&E where he was examined and discharged with pain relief medication. The purser sustained a head injury, a soft tissue injury to his right shoulder and muscular spasm of the lumber region. The latter two injuries caused ongoing problems for which he had 8 sessions of physiotherapy treatment. Four months after the accident he continued to suffer stiffness and pain, particularly in the mornings. Full recovery was achieved after 6 months. The pursuer is employed as a joiner. He was off work for one week and suffered some pain during his work as a result of the accident. He was also unable to play recreational football for four months.

Parties’ Submissions on Solatium:
The pursuer claimed for solatium in the amount of £2,675. The defenders submitted that the appropriate amount was £1,700. Both parties referred to a series of unreported cases to support their submissions.

Decision:
The sheriff remarked that the cases referred to lacked authority and could only be used as a general guide as to a range within which an award may fall. The sheriff recognised that the courts are required to achieve a degree of consistency in awards of a similar nature. However, she noted that these cases are often distinguishable on their individual facts and circumstances. It was therefore questionable whether these subjective cases could provide the court with the information necessary to satisfy the need for consistency in this case.

The sheriff accepted the parties’ agreed valuation of £125 in respect of services and inconvenience. She found the defenders liable to the pursuer in the sum of £2,675 in respect of solatium for pain and suffering. All questions of interest and expenses were reserved and a hearing assigned thereon.

Everett & Anor v Comojo (UK) Ltd (t/a the Metropolitan) & Ors [2011] EWCA Civ 13 18/01/2011

Fri, 25 Feb 2011 00:06:36 GMT

Duty Of Care Owed By Nightclub In Respect Of Actions Of Third Parties On Premises But Standard Of Care Must Be Just, Fair And Reasonable

Swain- Masonn & Ors v Mills & Reeve (a firm) [2011] EWCA Civ 14 20/01/2011

Thu, 24 Feb 2011 23:03:33 GMT

The court should not take too relaxed an approach when considering late amendments

Jubilee Motor Policies Syndicate 1231 v. Volvo Truck & Bus (Southern) Limited, QBD, 20/12/10

Thu, 03 Feb 2011 23:50:12 GMT

‘Same Damage’ In Section 1(1) Of The Civil Liability (Contribution) Act 1978 To Be Construed Narrowly

Valentine v Transport for London & Anor [2010] EWCA Civ 1358, 07/12/2010

Thu, 03 Feb 2011 23:48:42 GMT

Duty Under Section 41 Of The Highways Act 1980 Did Not Extend To Removing Surface-Lying Materials From Highway

Mason & Ors v Mills & Reeve (A Firm), [2010] EWHC 3198 (Ch), 06/12/2010

Thu, 03 Feb 2011 22:48:16 GMT

A Late Application to Amend Should Be Allowed

Charles Benjamin v The Standard Life Employees Services Limited, Sheriff Principal Edward F Bowen QC, Edinburgh Sheriff Court, 17 December 2010

Mon, 31 Jan 2011 23:07:00 GMT

This was an appeal against a Sheriff’s decision in respect of an action of damages for personal injuries, in which absolvitor was granted after defences were lodged but before proof was allowed. The Sheriff had rejected a Note of Objections to a Report by the Joint Auditor of Court (dated 14 August 2009) on the defenders’ account of expenses. The issue at appeal was the allowance of the cost of defenders’ reports from experts who were not certified by the Court as a ‘skilled person’.

The Sheriff Principal considered paragraph 1 of the Act of Sederunt (Fees of Witnesses and Shorthand Writers in the Sheriff Court) 1992 (SI 1992 No 1878) relating to ‘skilled persons’, together with the similar terms of subsections 2 and 3 of Rule 42.13 of the Rules of Court of Session 1994. He noted the well established Court of Session requirement for timeous certification; both in cases settled extra-judicially and those proceeding to proof. He also highlighted, however, General Regulation 6 of the Act of Sederunt (Fees of Solicitors in the Sheriff Court) 1993 (SL 1993 No 3080), which refers to expenses in the Sheriff Court for reports produced before proof is allowed.

The Sheriff Principal noted that a similar issue arose in the case of Hamilton v Hamilton, 1998 SCLR 73 (decided by Sheriff Higgins at Paisley Sheriff Court), where proof had been allowed but the reports in question were obtained prior to the closing of the record. In Hamilton, the Sheriff held the Auditor was wrong to exclude the reports’ costs from the pursuer’s account. In the present case, the Joint Auditor had considered the only way to reconcile paragraph 1 of the 1992 Act and General Regulation 6 of the 1993 Act was to differentiate between outlays in cases settling before, or after, the allowance of proof, concluding that outlays in respect of the former were within his discretion, while those in respect of the latter were governed by the direction of the Court. The Sheriff Principal considered this view to be in line with the decision in Hamilton.

The appellant’s submissions concerning a general rule requiring certification for allowance of costs were rejected by the Sheriff Principal. He accepted the respondent’s submissions that if the costs of employing skilled witnesses were only allowable upon certification, Regulation 6 would have little content. Further, he agreed with Sheriff Higgins’ view (as set out in Hamilton) that while the 1992 Act was intended to relate to witnesses (attending to give evidence), the 1993 Regulations in respect of the Sheriff Court were applicable to earlier stages of proceedings. As long as the applicable tests of relevance and necessity were met, the costs were allowable and a matter for the Auditor’s discretion. The Sheriff Principal considered this to be comparable to the Court of Session, where the allowance of experts’ costs before they become ‘witnesses’ is regulated by practice.

The Sheriff Principal refused the appeal and adhered to the Sheriff’s interlocutor dated 17 December 2009. In doing so, he also outlined his view that the treatment of the subject in Macphail Sheriff Court Practice is potentially misleading. In the Sheriff Principal’s view, where a skilled person prepares a report for one of the parties but is not a ‘witness’, their certification as a ‘skilled witness’ is ‘not essential’; however, certification is ‘essential’ and can be competently sought to recover costs of a ‘skilled witness’, even where a case does not proceed to proof.

Hamish McLeod Prentice v. Richard Allan Sandeman [2011] CSOH 18

Sun, 30 Jan 2011 15:45:49 GMT

The pursuer sought damages for professional negligence arising out of the alleged mishandling of his unfair dismissal claim by his solicitor. At this debate, the defender submitted that the pursuer’s action was incompetent, and was moreover irrelevant and lacking in specification. The defender submitted that the pursuer’s failure to lodge a closed record in proper form could justify dismissal of the action under Rule 22.3(2) of the Rules of Court.

In reply, the pursuer (who had been unrepresented throughout the action) noted that the General Department of the court had provided him with copies of the relevant Rules of Court, but that he did not have access to the annotated versions which were relied upon by counsel for the defenders. He also submitted that he did not have access to any textbooks providing guidance on the format of the closed record, nor did he have any examples of such a closed record in its proper format.

Noting that the pursuer’s pleadings were currently “a mess” and “idiosyncratic”, the court noted that it was not possible to make a determination on the action on the basis of the closed record as it currently stood, however the Lord Ordinary noted that the action generally was not totally without competence. The court deemed that the interests of justice would be best served by giving the pursuer another opportunity to put his pleadings in order and to amend their form and substance. The court that noted the substantive justice of the situation called for this and ordained the pursuer to lodge a closed record in proper form.

Marion Renate Rodewald v. Mrs Elizabeth Taylor [2011] CSOH 5

Tue, 18 Jan 2011 19:19:00 GMT

In this action, the pursuer sought payment by the defender for certain sums averred to have been paid by tenants of a property known as “Corshellach”, which were paid to the defender and retained by her. The basis upon which the rental payments were sought by the pursuer was that the defender had in terms of a contract been acting at the relevant time as agent for the pursuer in relation to the letting of Corshellach. It was accordingly alleged that she had received said rental payments in a fiduciary capacity. The pursuer argued that in these circumstances, the defender was not entitled to retain the sums, but had to remit them to the pursuer.

In the defender’s motion for dismissal of the action, counsel for the defenders argued that not all parties were correctly called to the action, with the defender’s partner not being a party to the action, but featuring extensively in the averments. It was moreover submitted that the pursuer’s averments were lacking in specification. In particular, it was submitted that the averments failed to specify the contract that allegedly formed the basis of the action and exactly who the parties might be to any agreement. It was argued that this caused material prejudice to the defender’s ability to respond to the pursuer’s case.

Having heard submissions, the Lord Ordinary sustained the defender’s motion. Noting that in order to give a defender fair notice of a case made against them based on a contractual agreement, averments would require to specify (a) who were the parties to the alleged contract; (b) where the contract was entered into; (c) when the contract was entered into; (d) the terms of the contract; and (e) the form of the contract. The Lord Ordinary found that this had not been done in this case, and that the pursuer’s averments failed to specify the foundation of her case. It was moreover unspecified how the defender came to be in the position of agent for the pursuer, and the basis for any agreement there under. Describing the averments as “mystifying”, the Lord Ordinary concluded that the pursuer’s case was wholly lacking in specification as regards the material issues and that were the matter to continue, the defender would be materially prejudiced by this. The Lord Ordinary dismissed the action.

Peacock Group plc v. Railston Limited and WM Murchland & Company Limited [2010] CSOH 173

Wed, 12 Jan 2011 21:19:31 GMT

The pursuers were a retailing company whose business premises were flooded in 2001 when a mains water connection failed. According to the pursuers, that failure and the resulting loss and damage were caused by breach of contract on the part of the defenders who had carried out shop-fitting works,and who had allegedly failed to carry out their contractual obligations with reasonable care and skill.

The court heard that this action had been raised in early 2009, following its dismissal two years earlier. The earlier case had been dismissed because the physical pipework evidence – the condition of which would be of crucial significance to the determination of the claim - had been borrowed out and apparently lost by the pursuers' agents in November 2003. According to the Lord Ordinary at that time, the prejudice to the third parties was so severe and irremediable, by reason of crucial primary evidence being unavailable for expert inspection on their behalf that the action could not fairly be allowed to proceed against them or against the defenders whose right of relief had been rendered inoperable.

The pursuers acquiesced in this decision, but by chance rediscovery, the missing items were found again in December 2008 and the present fresh action was brought. According to counsel for the defenders and third parties, the element of delay involved since the original cause of action arose was unconscionable and excessive, and was in large measure attributable to fault on the part of the pursuers' agents. It was argued that the condition of the piping would have inevitably changed to some degree during their five-year sojourn in the interior of a filing cabinet, and the result was that new experts were now disabled from examining items in the same condition as had been seen by other experts many years ago. It was submitted that there could never be a level playing field in this litigation and the combination of inexcusable delay and severe prejudice should lead to the immediate dismissal of the proceedings.

Noting that averring inordinate and inexcusable delay was merely the first essential criterion in any motion for dismissal, the Lord Ordinary noted that there must always be “an added ingredient” – an element of unfairness. The Lord Ordinary was not persuaded that the passage of time involved in this case could properly be described as inordinate and inexcusable, and thought there was no reason to regard the third parties as having suffered material prejudice. Accordingly, the Lord Ordinary was not able to hold that a fair trial would not be possible. Proof before answer allowed.

James MacDonald v. Wood Group Engineering (North Sea) Limited [2010] CSOH 165

Tue, 04 Jan 2011 13:46:55 GMT

In this action, the pursuer sought damages for injuries which he sustained in the course of his employment with the defenders while working aboard the Brent Bravo Oil Production Platform in the Scottish sector of the North Sea. At the time of the incident the pursuer (an experience deck crew rigger) working in a small team engaged in transferring material and equipment from a supply vessel onto the platform. The transfer of containers was carried out by means of a crane, which lifted individual containers from the deck of the ship to the pipe deck of the platform. The pursuer was to reach across a beam and a pipe on the deck and with his arms outstretched, to control the rotation movement of a container as it was lowered by the crane. As he doing so, the tip of the middle finger of his left hand became trapped between the southwest corner of the container and the southwest vertical member of the frame of the load immediately to the west. The pursuer had pushed the southwest corner of the container away from him because he did not wish part of the container to come to rest on the pipe.

The pursuer, along with other employees, had previously complained to the defenders about the presence of pipes on the pipe deck while this exercise was taking place. They thought that the pipe in question should have been removed from the platform, but that had not been possible. The defenders had not previously regarded the pipe as a hazard with regard to the loading and unloading of containers.

The pursuer submitted that there had been a breach of both Regulation 4(1)(b)(i) and 4(1)(b)(ii) of the Manual Handling Operations Regulations 1992, as no sufficient risk assessment had been carried out on the significance of a pipe being left on the deck at the time of the accident. The pursuer also based his claim on the common law, arguing that his losses were caused by the defenders' failure of duty at common law to provide him with a reasonably safe place of work and system of work.
The defenders denied liability and contend that in any event the pursuer was guilty of contributory negligence to the extent that he was solely responsible for the loss which he suffered.

After having evidence and submissions at proof, the Lord Ordinary concluded that there had been a breach of both Regulations 4(1)(b)(i) and 4(1)(b)(ii) as the presence of the pipe on the deck materially contributed to the need for the pursuer to manually handle the container and also materially contributed to the risk of the injury which the pursuer sustained. The Lord Ordinary noted that if the risk had been identified by the defenders, it could easily have been obviated by moving the pipe to another part of the pipe deck. Additionally, the Lord Ordinary found the defenders had breached their common law duty to provide the pursuer with a reasonably safe place of work, though had not breached their duty in respect of the system of work.

The Lord Ordinary concluded that when the pursuer placed his fingers in the place of danger, he had failed in his duty to take reasonable care for his own safety. The Lord Ordinary could find no logical basis for finding that the responsibility of either the pursuer or the defenders for the loss suffered by the pursuer was greater than that of the other and accordingly, considered it just and equitable that the damages payable to the pursuer should be reduced by 50% contributory negligence. Having heard arguments on quantum, the Lord Ordinary granted decree to the pursuer for the sum of £5,338.22.

Craig Bell v. The Chief Constable of Strathclyde Police and others [2010] CSOH 140

Sun, 02 Jan 2011 13:47:13 GMT

The pursuer sought damages of £550,000 from the from the Chief Constable of Strathclyde Police and from the Scottish Ministers, the latter being responsible for the acts and omissions of the Scottish Prison Service. It was averred that on 12 November 2007, while employed as a prison officer at Polmont Young Offenders Institute, the pursuer’s finger was jabbed by a dirty syringe while searching the property of new detainees.

In this motion, the Chief Constable invited the court remit the action to the Sheriff Court under the terms of section 14 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985. The Chief Constable submitted that if the case had been raised in the Sheriff Court, it could have been dealt with by in-house solicitors at considerably less expense than is involved in defending proceedings in the Court of Session. The costs incurred by the defenders would not be recoverable from the legally aided pursuer, and it was submitted that the impact on the public purse of the costs of this action should be a relevant consideration in terms of section 14, as it bears on the “nature of the action”. It was submitted that the pursuer would have no procedural advantage through litigating in the Court of Session and would suffer no prejudice if the matter were to be remitted to the Sheriff Court.

Counsel for pursuer submitted that he was entitled to litigate in the Court of Session and that the state of public finances had no bearing on the interpretation of section 14. It was submitted that considering the potential value of the action and its complexity, it was wholly appropriate to be litigated in the Court of Session. It was also suggested that it would be wrong to discriminate against legally aided pursuers, thereby forcing them to litigate in the Sheriff Courts.

The Lord Ordinary noted that the wording of section 14 was designed to prevent the court from remitting cases to the Sheriff Courts, which are not appropriate for that forum. In dismissing the defender’s motion, the Lord Ordinary noted that the Chief Constable was not raising an issue concerned with the “nature of the action”, but rather was raising an issue relating to the state of the public finances of the country, and the budgetary constraints facing him. The Lord Ordinary noted that there was nothing in the specific circumstances of action to make it appropriate to remit the case to the Sheriff Court, and taking into account the case’s high value and complexity, it was wholly appropriate to remain before the Court of Session. Motion refused.

David Paterson v. Grattan Plc, Sheriff Brian A. Murphy, Kilmarnock Sheriff Court, 2 November 2010

Mon, 06 Dec 2010 21:17:00 GMT

In April 2004, the pursuer purchased a bicycle from the defenders by mail order. On or about 9 April 2004, the Pursuer was out cycling alone on the bike when he was involved in an accident. On or around the following, the pursuer and his father took the bike to North Ayrshire Cycles to be inspected. At that time, it was determined that there was a faulty cog in the rear freewheel mechanism of the bike, and that as a result, the hacket had failed to engage. North Ayrshire Cycles replaced the mechanism and retained the old parts until summer 2008, at which point they were scrapped.

Some months following the accident, the pursuer remained dissatisfied with the bicycle, and the bike was later returned to the defenders, who refunded all costs to the pursuer in October 2004, as a good will measure. This was treated as a normal return by the defenders, no accident having been reported to them at the time. The pursuer thereafter raised a personal injury action against the defenders in respect of injuries arising out of his accident.

The defenders submitted that the pursuer knew or ought reasonably to have known that the rear freewheel mechanism was implicated in the accident. The pursuer moreover should have known that North Ayrshire Cycles retained in their own possession the faulty part which attributed to the accident, and that this should be recovered, it forming part of the evidence of the claim against them. It was submitted that even if the pursuer had not realized the significance of this part in 2004, the pursuer ought to have so realized when his solicitors were instructed to raise his claim and reports were sought. The defenders submitted that the pursuer had failed in his high duty of care to take all proper steps to preserve this fundamental item of real evidence, and that the pursuer was solely responsible for its loss. The defenders submitted that they were at prejudice in the action as they were not able to obtain their own expert opinion to properly test the reason for the accident. Any such evidence on the cause of the accident would be entirely one-sided.

The Sheriff noted that the pursuer now accepted that retrieving and retaining the freewheel mechanism was important, and the Sheriff concluded that it was not open to the pursuer to absolve himself from fault in this respect, having known that the part would be a crucial part of the evidence in this case. The court noted that the defenders would suffer insurmountable prejudice if secondary evidence as to state of the rear freewheel mechanism were to be permitted and accordingly, decree of absolvitor was granted.

Christopher Brown v. North Lanarkshire Council [2010] CSOH 156

Mon, 06 Dec 2010 21:12:59 GMT

Proof on liability:- The pursuer was the father and guardian of Thomas Brown, who was born on 13 August 1992. On 3 April 2003, Thomas was a pupil at Ladywell School, Motherwell. On that day, he was engaged with 2 other pupils in painting a large sheet of paper on the floor of a classroom. The children were working in an open plan classroom, under the supervision of two teachers. Whilst Thomas was engaged in this desk, one of the other children bumped into him, causing him to fall on the paintbrush of the third child. The children had been provided with long, thin paintbrushes and the end of the paintbrush penetrated Thomas’s left eye and brain, resulting in blindness, left-side paralysis and brain damage.

It was not disputed that the defenders, and the teachers working for them, owed a duty of reasonable care for the safety of the children in their care, but there was a dispute about the standard against which that standard should be judged at common law.

Having heard evidence, the court ruled that the risk in this case arose not from the use of the brush in itself, but from the circumstances of its use. The factors brought into play by its use on the floor created the foreseeable risk of injury, in the court’s opinion. This factual matrix of relevant circumstances creating the foreseeable risk included the fact that the brush was a long, thin, tapering, sharp, pointed object; that it was not being used at desk level, but on the floor; the children were kneeling on the paper to work, with the sharp end uppermost; the children were not only in a situation of close proximity to one another, but were also expected to move back and forwards across the paper, with the brush in their hands. The court noted that it was against this factual background that the risk of foreseeable injury was to be assessed.

The court noted that no consideration was given by the teachers to the role which the brush might play in the activity, and taking all factors into account, the court concluded that the risk of some sort of penetrating injury from the brush was a real and foreseeable one. First plea-in-law sustained for the pursuer; quantum to be set at a later date.

Vicky Reid v. Equiworld Club Limited, Sheriff D.J. Cusine, Aberdeen Sheriff Court, 23 November 2010

Sat, 04 Dec 2010 14:34:15 GMT

The pursuer sought damages from the defenders in respect of an incident at their premises on 18 February 2005, when she fell from one of their horses and sustained a cross fracture of one of her thoracic vertebrae, and according to her, a mild brain injury.

The pursuer submitted that prior to her accident, the horse she was riding at the time had suffered an injury to his back when he fell on ice, and that after this fall, he was not fit for show-jumping practice. The pursuer submitted that this ought to have been known to the riding school, if it had been taking reasonable care. It was submitted it was reasonably foreseeable that if the horse was not fit, this could result in injury to persons riding him, e.g. the pursuer. The pursuer submitted that as a result of the horse being unfit due to injury, the horse bucked during the practice session, causing the pursuer to be thrown from the horse, resulting in her loss, injury and damage.

The defenders submitted that there was no factual evidence to support any of the key elements of the pursuer’s case. The defenders submitted that there was no evidence to support the contention that the horse in question had in fact suffered an injury to his back, and moreover, the pursuer’s account of the incident could not be found to be credible and reliable, as it directly contradicted evidence led from other eye-witnesses, upon whom the court could rely as being unbiased and disinterested in the outcome of the action.

The Sheriff preferred the evidence led by the defenders, and agreed that if the horse in question had suffered an injury to his back, it was only a minor one that resting had sufficiently taken care of. Moreover, the defenders’ eye-witness evidence was to be preferred, which had indicated that the pursuer had suffered an injury as a result of the horse bucking, due to “rider error”, namely excessive whipping of the horse when he refused a jump. The Sheriff concluded that he was not persuaded that the horse was seriously injured at the time of the accident, and was moreover not persuaded by the pursuer’s account of the incident. Accordingly liability for breach of duty of care was not established.

Aktas v Adepta (A Registered Charity) [2010] EWCA Civ 1170 22/10/2010

Fri, 26 Nov 2010 01:49:32 GMT

Reinstitution Of Fresh Proceedings Following Strike Out Of Claim For Failure To Serve In Time Not An Abuse Of Process

Threlfall v Hull City Council [2010] EWCA Civ 1147 20/10/2010

Fri, 26 Nov 2010 01:48:32 GMT

The Court of Appeal handed down guidance as to the correct approach to reg. 4 of the Personal Protective Equipment at Work Regulations 1992. Ordinarily, the court’s first task was to determine whether reg. 4 applied at all; it applied wherever a residual risk of harm arose and which was more than de minimis or so trivial that it should be ignored. The next question for the court was whether the equipment prevented or adequately controlled the identified risk of injury. Only if that question was answered in the affirmative would the need to consider the requirements of reg.4(3) arise. If the question was answered in the negative, the equipment would be unsuitable irrespective of how appropriate it may be. The correct interpretation of “adequately control the risk” in reg. 4(3)(d) is that the equipment should prevent a significant injury. Further, the Court of Appeal stated that the suitability of any protective equipment had to be judged at the time the equipment was provided, ra ther than with the benefit of hindsight.

Durham v. Bai (Run Off), CA, 8/10/10

Fri, 26 Nov 2010 01:47:44 GMT

Interpretation Of Trigger Date For Employers’ Liability Insurers To Indemnify In Mesothelioma Cases

Norbrook Laboratories Ltd & Anor v. Carr & Anor [2010] EWCA Civ 1108 14/10/10

Wed, 24 Nov 2010 20:36:38 GMT

Judge Wrongly Exercised Discretion As To Case Management Powers In Striking Out Claim

Broomleigh Housing Association Ltd v. Okonkwo [2010] EWCA Civ 1113 13/10/10

Wed, 24 Nov 2010 20:35:14 GMT

Guidance As To The Making Of A Committal Order Under CPR r. 71.8

Jim Walker v. Chesapeake Hillington Ltd, Sheriff Mitchell, Glasgow Sheriff Court, 11 October 2010

Sat, 06 Nov 2010 11:13:13 GMT

In this action, the defender had enrolled a novel motion, “ordain the pursuer to state whether he was impecunious or not within a period of 7 days on the basis that the pursuer has been repeatedly asked to confirm whether he was impecunious or not and has failed to do so". Due to its unusual nature, the Sheriff sought to be addressed on it, although the motion was unopposed by the pursuer.

The pursuer had brought a personal injury action against the defender, following a road traffic accident which took place in June 2008. The sum sued for was £31,974.70, which included claims for solatium, wage loss, loss of services and inconvenience. It also included the total cost of hire of a replacement car vehicle, £13,066. The defender submitted that the motion had been enrolled to determine whether the pursuer was impecunious at the time when he was provided with the hire vehicle. In Lagden v O'Connor [2004] 1 A. C. 1067, it was held that only if it was shown that the claimant's impecuniosity was such that he would have been unable to obtain a replacement car had he not used a credit hire company, the reasonable additional charges of that company would be recoverable as damages, it being reasonably foreseeable that there would be some car owners who would be unable to obtain a replacement car other than by use of a credit hire company. The defender submitted that "impecunious" signifies an inability to pay car hire charges without making sacrifices the plaintiff could not reasonably be expected to make.

It was submitted by the defender that it was unsatisfactory and unfair to leave this head of claim to be determined at proof, when it was unsupported by any relevant pleadings of the pursuer. The Sheriff agreed with this submission, noting that while there was no relevant Scottish authority on this point, the law had been settled in Lagden. If the pursuer seeks to recover more than an amount equivalent to the spot hire rate of hiring an alternative vehicle then his impecuniosity at the material time requires to be established. The Sheriff held the defender was entitled to fair notice of the pursuer’s claim, and whether this aspect of it could be properly maintained, based upon whether or not he was impecunious at the relevant time. The Sheriff held that the burden of proof lay on the pursuer to prove he was impecunious at the relevant time.

The Sheriff also drew attention to a defect in the personal injuries procedure, whereby there was no other way to deal with this straightforward issue, except by enrollment of a motion. There was no other pre-trial way to resolve this issue of legal relevancy of a head of claim, amounting to a significant proportion of the pursuer’s overall claim for damages. The Sheriff noted that there are sound reasons of public policy for motion procedure to enable parties to a personal injuries action proceeding under personal injuries procedure at an early stage to ascertain whether all, or at least some, of the issues between them can be resolved with a minimum of expense.

John Grant curator ad litem to Laura Berry v. Marcus Barnett, Sheriff Principal Edward F. Bowen QC, Edinburgh Sheriff Court, 14 October 2010

Thu, 04 Nov 2010 22:52:14 GMT

Recall of decree:- At a pre-proof hearing, decree by default was granted against the defender in an action for payment of a capital sum, sought by the pursuer under section 28 of the Family Law (Scotland) Act 2006. The defender failed to appear at diet, and the Sheriff granted decree as craved, in terms of Ordinary Cause Rule 28A.1(5). The defender appealed against the granting of that decree, arguing that the granting of the decree in the particular circumstances of the case was not a proper exercise of the Sheriff’s discretionary power.

The defender submitted that his former agents had withdrawn from acting on his behalf, and that he was subsequently not aware of a new date for the pre-proof hearing having been set. To that extent, the defender submitted that his failure to attend the hearing was not deliberate. Moreover, efforts by the defender’s subsequent agents to ascertain the state of matters were ignored by his former agents.

In considering those circumstances, the Sheriff Principal considered it proper to recall the decree by default against the defender.

Oceanbulk Shipping & Trading SA (Respondent) v TMT Asia Limited & others (Appellants) [2010] UKSC 44

Thu, 04 Nov 2010 22:40:59 GMT

This appeal concerns the scope of the exceptions to the principle that statements made in the course of ‘without prejudice’ negotiations are not admissible in evidence (“the without prejudice rule”). The issue is whether it is permissible to refer to anything written or said in the course of the without prejudice negotiations to help interpret any agreement which results from the negotiations.

The appellants, TMT Asia Limited and others, and the respondent, Oceanbulk Shipping & Trading SA, had entered into a number of forward freight agreements. When the appellants failed to pay a sum due under those agreements, the parties entered into settlement negotiations which were expressed to be without prejudice. The negotiations resulted in a written settlement agreement in respect of the sum due. The respondent brought a claim for damages against the appellants alleging breach of a clause of the settlement agreement. In their defence the appellants sought to rely on statements made during the without prejudice negotiations in support of their interpretation of the clause. The respondent contended that reliance on the statements was precluded by the without prejudice rule.

The High Court held that the evidence was admissible for the purpose of determining how the terms of the settlement agreement were to be construed notwithstanding the without prejudice rule. The majority of the Court of Appeal (Longmore and Stanley Burnton LJJ), however, allowed Oceanbulk’s appeal, holding that the evidence was not admissible.

The Supreme Court unanimously allowed the appeal. The substantive judgment was given by Lord Clarke, with whom the other Justices agreed. Lord Clarke reached the conclusion that justice clearly demanded that the interpretation exception should be recognised as an exception to the without prejudice rule.

Morgan & Anor v Ministry of Justice & Anor [2010] EWHC 2248 (QB) 03/09/10

Thu, 21 Oct 2010 19:34:25 GMT

Supperstone J held that the Crown did not owe prisoners a non-delegable duty of care in respect of alleged failings of the local NHS Primary Care Trust to adequately assess a prisoner’s risk of suicide.

Omega Proteins Ltd v. Aspen Insurance UK Ltd, [2010] EWHC 2280 (Comm), 10/9/10

Thu, 21 Oct 2010 18:35:26 GMT

Judgment That Insured In Breach Of Contract Not Conclusive As To Whether Insured Had Tortious Liability

Petition of Her Majesty's Secretary of State for Business Enterprise and Regulatory Reform for an order to wind up UK Bankruptcy Limited [2010] CSIH 80

Sun, 26 Sep 2010 18:18:13 GMT

Petition for winding-up:- A director of UK Bankruptcy (UK) Ltd, a company subject to winding-up proceedings, lodged answers in defence of the petition, in order to forestall disqualification proceedings against him under the Company Directors Disqualification Act 1986.

In 2009, the director sought to represent the company in the winding-up process, and a hearing took place on whether he was entitled to do so. At that hearing, the Lord Ordinary considered that on the present law, the director had no right to represent the company, but nonetheless, exceptional circumstances could arise in which the court would have to allow a company to be represented by a person who was not a qualified practitioner in order to ensure that there was a fair hearing under article 6 ECHR. The Lord Ordinary considered that the court could perhaps allow this by virtue of its inherent power and reported the case to the Inner House to consider and report on this proposal. The Lord Advocate and Advocate General compeared in proceedings, along with amicus curiae; all were in favour of a proposal to extend rights of audience to directors of companies, subject to certain safeguards.

The Lord Justice-Clerk outlined the current law on rights of audience, concluding that every extension of rights of audience beyond the traditional restrictive rules had to date been effected by way of enactment of new statutory provisions. Further, in outlining the relevant position in England, the court was in agreement with the Lord Ordinary at first instance, who doubted whether the English position could be effectively imported into Scots law, a system which is without the greater powers of case management enjoyed by England, and further without the power to strike out cases which are without a reasonable prospect of success.

Despite the general consensus among the Law Officers and amicus curiae that the present rule should be relaxed, and that subject to certain safeguards, it should be competent for a company to be represented by a lay representative, the Lord Justice-Clerk declined to so exercise the court’s inherent power to extend rights of audience in this regard.

Opining that the traditional restrictive rule (found in legislation establishing the Court of Session in 1532) was not desuetude, the court considered that the extension of rights of audience on behalf of companies to unqualified persons would bring risks to the due performance of justice system. The court considered that such a matter of social policy should only be considered by the legislature, in keeping with all other extensions of rights of audience hitherto. Moreover, the court noted the negative impact of party litigants on the efficacy of court proceedings in the last decade and further considered that an extension in respect of companies, would inevitably lead to wider questions of rights of audience for other unqualified representatives e.g. trustees and commercial partners.

Case remitted back to the Lord Ordinary, Outer House, with a direction to decline the director as a representative of the company in the proceedings.

Raggett v. Preston Catholic College Governors & Anor, [2010] EWCA Civ 1002, 27/8/10

Thu, 23 Sep 2010 16:33:13 GMT

Damages Claim In Respect of Alleged Historic Sexual Abuse By Former Teacher Allowed Outside Of Limitation Period

VL v. Oxfordshire County Council, [2010] EWHC 2091 (QB), 5/8/10

Thu, 23 Sep 2010 16:32:19 GMT

Local Authority Not Negligent In Failing To Make CICB Application On Child’s Behalf

R v. Thames Magistrates Court, QBD, 12/8/10

Thu, 23 Sep 2010 14:37:00 GMT

Medical Evidence Insufficient To Justify Adjournment

Terence Patrick Ewing v. Times Newspapers Limited [2010] CSIH 67

Sun, 19 Sep 2010 14:54:09 GMT

The pursuer and reclaimer had sued for "unlimited damages/solatium including actio iniuriarum" in respect of an article published by the defender and respondent on 11 February 2007 in the Sunday Times Scotland edition, and on two related websites.

The court recounted that the pursuer and reclaimer had a long history of civil litigation, with the High Court of England and Wales declaring him to be a vexatious litigant on 21 December 1989.

On 19 June 2008, the pursuer and reclaimer applied to the High Court for leave to initiate his action against the defender and respondent in the English courts. This application was refused. Around this time, the Inner House noted the pursuer and reclaimer had travelled to Scotland, where he downloaded the internet version of the article concerned, and also read a hard copy of the article at a public library. The pursuer then raised the present action in the Scottish courts. From the outset, the defender and respondent moved the court to ordain caution in the sum of £50,000 as a condition precedent to continuing the action. This motion was granted by the Lord Ordinary, Lord Brodie, in December 2008, and was intended to cover the pursuer’s probable expenses up to the procedure roll stage. In January 2009, having been assured by the pursuer that he could not and would not find the caution, the court granted decree of absolvitor. The pursuer reclaimed against these decisions.

The pursuer and reclaimer argued that (i) an order to find caution for expenses is per se a denial of access to justice and is therefore a breach of Article 6 ECHR; (ii) that in any event, it was unfair of the Lord Ordinary to make the order before the record was closed because the pursuer might still have adjusted his pleadings, and if necessary, defend them in a debate on relevancy, and (iii) that the pursuer’s criminal record should not deny him the opportunity to seek damages for what he considered to be serious defamatory statements.

In considering the pursuer and reclaimer’s first submission, the Inner House considered that the Article 6 ECHR right to access to justice was not unqualified, nor absolute. The court noted it was subject to the rights of the other party to be protected against being put to irrevocable expense by an impecunious and irresponsible litigant. The court added that such protection is a legitimate aim, to which a requirement to find caution is properly directed. In relation to the pursuer and reclaimer’s second submission, the Inner House noted that the distinction drawn on the timing of the order for caution was of no significance, noting that if the action was unlikely to succeed in any event, it was right that the court should grant caution at an early stage of proceedings; otherwise, the purpose of the caution itself would be defeated. Finally, the Inner House opined that the proper test to be applied when considering the pursuer’s reputation, is whether the Lord Ordinary exercised his discretion as no Lord Ordinary could reasonably have done. The Lord Justice-Clerk Gill, in delivering the opinion of the court, noted that Lord Brodie had given a careful account of his reasons for ordering caution, and that he could see no reasons to suggest that his decision was unreasonable. Reclaiming motion refused; defender’s motion for expenses granted.

Bhatt v Fontain Motors Ltd, [2010] EWCA Civ 863, 27/07/2010

Wed, 08 Sep 2010 20:53:59 GMT

Starting Point For Liability For Fall From Height In Workplace Is The Regulations Not Worker’s Conduct

Yetkin v London Borough of Newham, [2010] EWCA Civ 776, 13 July 2010

Wed, 08 Sep 2010 20:52:48 GMT

Gorringe v. Calderdale MBC Did Not Lay Down Any New Limitation On Highway Authorities’ Duty Of Care To Road Users

Leo Pharma A/S & Anor v Sandoz Ltd, [2010] EWHC 1911 (Pat), 27/07/2010)

Wed, 08 Sep 2010 16:19:45 GMT

CPR r. 40.12 Slip Rule Limited to Accidental Slips Or Omissions

Pollock v Westall – Jedburgh Sheriff Court, 16 July 2010

Wed, 25 Aug 2010 10:26:04 GMT

The Pursuer raised an action of damages following a road accident in December 2008. She was 23 years old at the time of the accident and 25 at the date of proof. Liability was admitted but there was a dispute over quantum.The Pursuer suffered a soft tissue injury to her lower back as a result of the accident. She had suffered chronic pre existing back pain for about 7 years before the accident. This had caused her difficulties on a daily basis and she took anti-inflammatory medication. Her pre-existing back pain was exacerbated by the injury she suffered in the accident. She experienced pain across the bottom of her back and up her spine. She saw her GP and was prescribed pain killers. She was later referred for physiotherapy, which helped to ease the pain but had to stop this treatment when she became pregnant. About 6 months after the accident the Pursuer continued to suffer intermittent lower back pain every day, which was made worse by certain movements. She had made a full recovery to her pre accident condition 9 months after the accident. The Pursuer suffered mild anxiety and hyper vigilance when driving and still experienced those symptoms about 18 months following the accident. The Pursuer needed help with domestic chores for about 2 to 3 weeks after the accident. Following the Proof, the Pursuer argued that solatium was worth £3,500. The Defender placed a value of £2,000 on solatium. Having considered the evidence and a number of authorities referred to by the parties, the Sheriff awarded £2,750 as solatium, with interest at 4% a year from the date of the accident until decree and at 8% until payment.

Marie Ann Wallace v. Glasgow City Council [2010] CSOH 88

Sat, 21 Aug 2010 15:24:25 GMT

In June 2007, the pursuer was employed by the defenders as a clerical assistant for a school in Glasgow. She required to use the toilet facilities, and as a courtesy to the next user, attempted to open the window after doing so. The window was around seven feet above the ground, and no pole was in the cubicle at the time to assist with pulling the window open. Being only 5ft1ins in height, the pursuer stood on the ceramic bowl of the toilet to open the window. As she did this, the ceramic bowl capsized, becoming detached from the floor and falling on her left foot. The pursuer sustained serious injuries to her left foot, including a displaced fracture of the posterior tuberosity of the calcaneum from which she had not made a full recovery.

The pursuer sought reparation from the defender for breach of their statutory duties under Regulations 5, 15, and 20 of the Workplace (Health, Safety and Welfare) Regulations 1992 and breach of their duty under Regulation 3 of the Management of Health and Safety at Work Regulations 1999. The defender contended that the accident was not caused by any breach of their statutory duties, but rather, by the fault of the pursuer, or in any event, was materially contributed to by her negligence.

Having heard evidence, the court considered that there were alternative courses of action available to the pursuer to safely open the window, and that in any event, it was not essential she do so. Even if alternative courses of action were not available, the pursuer could simply have left the window closed. Considering the application of Regulation 15 of 1992 Regulations, the court found that while the action employed by the pursuer had endangered her safety, it was not likely that the window in the cubicle would be opened by persons who stood on the toilet to reach it. With regards Regulation 20, alternate courses of action were available; the provision of a pole to open the window was not essential. Considering Regulation 5 was concerned with the maintenance, and not provision, of equipment, the court deemed this provision did not add anything to the pursuer’s claim. In relation to the duty to carry out a suitable and sufficient risk assessment under Regulation 3 of the 1999 Regulations, the court found that there was no sufficient evidence to conclude that one had not taken place, and in any event, it was likely that an assessment would not disclose the risk of people standing on toilet bowls to open windows. Defender found not liable for the pursuer’s injuries caused by her accident; decree of absolvitor granted.

Raymond Munro v. William Sturrock trading as Scotmaps [2010] CSOH 116

Thu, 19 Aug 2010 15:10:35 GMT

Proof:- In this action the pursuer, a successful rally driver, sought damages from the defenders, a provider of maps via DVDs used to assist navigators in a rally, following a crash in which the pursuer’s car and he was psychiatrically injured. In this action the standard of negligence which fell to be applied was the ordinary standard or the professional negligence standard as set out in Hunter v Hanley 1955 SC 200. On 21 August 2004, the pursuer competed in a rally on Speyside. He was driving a Subaru Impreza car along with his co-driver whose function it was to navigate the route for him by reading aloud the instructions on where to go from the route notes which had been provided by the defender. It was the pursuer’s contention that he approached a bend at an appropriate speed and in a line in terms of the notes, namely the angle of the bend was denoted as 40°. However, the pursuer saw the bend was much more acutely angled than 40° and lost control of his vehicle. Further, had the notes in relation to the angle of the bend been more accurate he would have approached it at a slower speed and would have taken a different line. In the set of route notes prepared for the same stage in 2001 the bend was classified as 7L and had it been classified as 7L in the 2004 route notes the accident would not have occurred. It was the defenders contention that the notes were not scientifically or mathematically accurate and they simply provided the defender's subjective assessment of the course. At proof the issue was restricted to the issue of liability. The court considered an objection made on behalf of the defenders in which the admissibility of the expert evidence of the pursuer’s witnesses in relation to the angle of the bend was challenged on the basis that none of the witnesses met the criteria for a skilled witness. Thereafter, the court considered the evidence led on behalf of both parties. In particular, the court considered the evidence led on behalf of the defenders from a surveyor who measured the bend at 30° in a mathematically accurate topographical survey. That calculation was unchallenged. In the event then that the court made a finding that the bend had an angle of 30° on 21 August 2004 the court considered whether guidance issued by the defenders to the effect that the bend had an angle of 40° was such as to render the defenders liable to the pursuers for acting on the information provided or whether such a difference was within the range of acceptability.

Mhairi Stainsby v. Janice Fallon [2010] CSIH 64

Mon, 16 Aug 2010 16:27:01 GMT

In July 2005, two sons of the pursuer were walking along a pavement towards an ice-cream van, when one fell into the road and was trapped under the nearside rear wheel of the defender’s vehicle. He sustained numerous serious injuries, including a fractured jaw, the loss of two front teeth, and fractured metatarsals in his right foot.

The pursuer raised an action for damages against the defender in the Court of Session under Chapter 43 of the Rules of Court, alleging that the defender had driven too close to the pavement and had failed to sound her horn on approach. A civil jury trial took place in October 2008, but having heard the pursuer’s evidence and submissions, the Lord Ordinary withdrew the case from the jury, on the basis that the evidence heard set up an essentially different case from that stated on record and that it did not constitute a relevant case in relation to the current proceedings.

The pursuer enrolled a motion for a new trial, contending that the case should have been left with the jury for their own determination, as only if there was no evidence upon which a jury properly directed could find in favour of the pursuer could the case be withdrawn from them. Alternatively, there had to be a major departure from the pleadings resulting in material prejudice to the defender: a mere discrepancy between the pleadings and the evidence was not enough.

The court noted that only in rare and exceptional circumstances will a case in which evidence has been led before a civil jury be withdrawn from that jury before they give their verdict. The court was not persuaded that there was such a discrepancy between the pursuer’s averments and the evidence led at trial, that the case should have been withdrawn.
The court further noted that the Lord Ordinary appeared to have assessed the evidence and to have given his own view that no negligence had been established; yet the court noted that even if he was correct on this point, that assessment properly remained one for the jury. Pursuer’s motion for a new civil jury trial granted.

Lloyds Pharmacy Limited for Judicial Review of the decision of Lanarkshire Health Board of 17 December 2009 [2010] CSOH 86

Sun, 15 Aug 2010 17:29:00 GMT

Petition for Judicial Review:- The petitioners, Lloyds Pharmacy Ltd, averred that Lanarkshire Health Board’s decision to refuse their application for a minor relocation of their pharmacy under Regulation 5(1) of National Health Service (Pharmaceutical Services) (Scotland) Regulations 2009, was unlawful and unreasonable. They additionally sought reduction of that decision.

Following a proposed relocation of general practitioner medical practices in Carluke, the petitioner, and a nearby competitor – Boots UK Limited – sought to relocate their premises to be closer to the new facility. In December 2008, the respondent granted Boots' application for minor relocation of their premises.

The petitioner applied for minor relocation in August 2009. In December 2009, the respondent refused this application, stating that they were not satisfied that the relocation was minor. Further reasons for this refusal were provided in a letter sent to the petitioner’s solicitors in February 2010.

The petitioners advanced three grounds of challenge. First, the petitioner averred the respondent applied the wrong legal test in considering their application, applying a test of “neutral effect” instead of a test of “no appreciable effect”. This was significant as these tests could result in different outcomes. The court rejected this ground of challenge; taking together the initial refusal of the petitioner’s application, and the expanded reasoning offered in the respondent’s letter in February 2010, it was clear from the context that they had applied the correct legal test.

Secondly, the petititoner averred that the respondent had erred in law in failing to have regard to relevant and material considerations e.g. the actual distance of the pharmacies from the proposed new medical centre, instead merely directing themselves to rankings of proximity. Had they directed themselves correctly, the petitioner averred, it would have been appropriate to note that the proposed relocation brought the petitioner only one unit apart from Boots. However, the court found that the respondent was entitled to take the view that an alteration to rankings of proximity would have an appreciable effect on the petitioner and other contractors, with a resulting effect on trade.

Thirdly, the petitioner averred that the respondent had treated Boots’ application for minor relocation more favourably, in ignoring the proposed relocation of the new medical centre at the time the Boots application was considered. The court once again rejected this ground of challenge, as from an examination of correspondence, it was clear the Board had considered the medical centre’s relocation in relation to the Boots application, and accordingly, there was no difference in treatment.

Petition for judicial review dismissed.

Roslyn Evelyn Mykoliw and Others v. Arthur James Botterill and Tulloch Transport Ltd [2010] CSOH 84

Fri, 13 Aug 2010 15:00:56 GMT

In this Procedure Roll Motion, the defender and third party sought dismissal of the claim brought by the eighth pursuer, on grounds that his claim for non-patrimonial loss for death of his step-child, was excluded by s1(4A) of the Family Law (Scotland) Act 2006, amending the Damages (Scotland) Act 1976.
The defender and third party contended the pursuer was excluded from the notion of “immediate” family of a deceased, because of his relationship being one of “affinity”, as a step-parent.

The court summarized the background to the amended provisions, noting that in August 2002, the Scottish Law Commission submitted their Report on title to sue for non-patrimonial loss (Scot Law Com No. 187) recommending that any person (including a step-parent) who had accepted the deceased a child of the family should be entitled to sue for non-patrimonial loss, as part of the deceased’s “immediate family”.

The Scottish Government accepted the Commission’s recommendations however, the resulting ambiguous amendments made by the Family Law (Scotland) Act 2006 clearly did not reflect this intention.

The question for the court was whether these amendments could be read as giving effect to their intended purpose, or if they did not, what should the court do when it has to interpret a statutory provision in circumstances where a strict, or literal, reading of it would deny a right which the legislation clearly intended to confer?

The defender and third party argued that the court must employ a strict literal construction, with only the legislature able to provide a solution to the unclear and ambiguous amended provisions.

The court roundly rejected this submission, noting this would lead to an absurd result and much injustice, in discriminating against step-parents merely as a result of their married status. The court illustrated the absurdity of the result of literal interpretation, by reference to cohabitants, who could claim under the Act (provided they were deemed to have had sufficient close ties of love and affection with the deceased), but step-parents could not, merely as a result of their martial status.

When literal interpretation of a provision produces such an absurd result, the court noted it will seek to avoid such an interpretation, because it is unlikely to have been intended by Parliament. The court should look at the context of the provision, and in this instance, noted that Parliament had clearly intended that persons who have accepted the deceased as a child of their family should be entitled to sue for non-patrimonial loss because of the closeness of the emotional bond likely to have been created between such immediate family members.

Lord Ordinary noted that the “only sensible interpretation” which could be given to s1(4A) is to hold that the exclusion has effect only where there is nothing more than a relationship of affinity between the claimant and the deceased. Where, however, there is a relationship of affinity over and above the fact that the claimant had accepted the deceased as a member of his family, the relationship of affinity does not defeat the entitlement to claim for non-patrimonial loss.

Furthermore, the court noted that Article 8, guaranteeing respect for family life, would be undermined by the literal interpretation of this exclusion and s3 of the Human Rights Act 1998 requires the court to read and give effect to legislation in a way that is compatible with Convention rights. Found the pursuers had title to sue under s1(4A) of the 1976 Act and repelled the Motion to strike out the claims on grounds of irrelevancy. Motion refused.

James Johnstone v. Amec Construction Limited [2010] CSIH 57

Tue, 10 Aug 2010 10:06:56 GMT

The pursuer and appellant injured his leg, when he tripped over part of a metal barrier fence during the course of his duties as a security guard, at a school construction site in East Kilbride in July 2006. Quantum had been agreed between the parties at £4,000, however the Sheriff at first instance granted decree of absolvitor in April 2009. The pursuer reclaimed to the Inner House against that determination.
The pursuer at first instance founded his claim in two parts: first, the pursuer brought his case under Regulations 4 and 5 of the Provision and Use of Work Equipment Regulations 1998, and secondly, under Regulation 5 of the Construction (Health, Safety and Welfare) Regulations 1996. In relation to the latter basis, the sheriff found the pursuer had failed to prove that the defenders had sufficient control over his work, required to establish responsibility under Regulation 5. The pursuer did not challenge this finding, and instead confined his reclaiming motion to the interpretation of the Provision and Use of Work Equipment Regulations 1998.

The appellant submitted that the Sheriff failed to properly address the concept of breach under Regulation 5, specifically its strict liability basis. Upon consideration, the Inner House concurred with the appellant on this ground, noting that the very fact the barrier fence had failed to remain in position and that it was blown over by the wind, meant that it was not maintained in an efficient state, in efficient working order and in good repair, finding that the appellant's accident was therefore caused or at least materially contributed to by the failure of the respondents to maintain the fence, in breach of Regulation 5.

Furthermore, the appellant submitted that the Sheriff had set the test of reasonable foresight in terms of Regulation 4 too high. The Inner House noted that the issue was not whether the particular tripping hazard that was ultimately posed was foreseeable, but rather the question was whether the risk that the barrier fence might be blown over and thus potentially cause injury and damage was foreseeable. They found this plainly was foreseeable, and therefore, allowing the appeal, found the respondent's failure to comply with their obligation under Regulation 4 caused or materially contributed to the appellant's accident.

The court finally considered the Sheriff's assessment of contributory negligence, in respect of the appellant's failure to keep a proper look out for his own safety and failure to appreciate where he was putting his feet, finding the Sheriff's calculation of 60% to be excessive, and substituting this for their own assessment of 40%. Appeal allowed, recalling interlocutor of Sheriff and decree granted.

Colin Leggat v Anthony Ralph and Allianz Insurance Plc, [2010] CSOH 4, 13/01/2010

Thu, 05 Aug 2010 17:10:37 GMT

The pursuer ("Mr Leggat") sued for damage for personal injuries sustained in a Road Traffic accident on 30 May 2005. Liability was admitted and no question of contributory negligence arose. The proof was accordingly restricted to the issue of quantum.

Smith & Anor v. Hammond, [2010] EWCA Civ 722, 25/6/10

Thu, 29 Jul 2010 20:34:22 GMT

The Court of Appeal held that the judge had erred in rejecting expert evidence in a claim relating to a road traffic accident. Whilst the judge was not bound to accept the expert’s evidence if he had good reasons for not doing so, that such expert evidence did not accord with his own experience was insufficient ground for rejecting the evidence. The Court of Appeal also held that standard of care to be applied remained that of a reasonably prudent motorist and the court was not entitled to impose a higher standard which amounted to a counsel of perfection. Accordingly the defendant lorry driver had not acted negligently in failing to sound his horn at the same time as engaging in other measures so as to avoid a collision.

Keefe v. Isle of Man Steam Packet Co Ltd, [2010] EWCA Civ 683, 17/6/10

Thu, 29 Jul 2010 20:00:53 GMT

A Defendant In Breach Of Duty To Take Measurements Of Noise Levels Could Not Assert Noise Levels Not Excessive

Lexi Holdings v. Pannone & Partners, [2010] EWHC 1416 (Ch), 18/6/10

Thu, 22 Jul 2010 17:27:58 GMT

Test Of Necessity And Proportionality Applied In Respect of Part 18 Application For Further Information

Bell v. Havering LBC, [2010] EWCA Civ 689, 27/5/10

Thu, 01 Jul 2010 18:27:59 GMT

Judge Entitled To Accept Claimant’s Account Of Accident As Credible Despite Inconsistencies Between Oral Evidence and Accounts In Medical Records

Swain v. Geoffrey Osborne Ltd & Anor, [2010] EWHC 1108 (QB), 19/5/10

Thu, 01 Jul 2010 18:26:21 GMT

Building Contractor And Subcontractor Liable For Personal Injuries Sustained By Claimant Slipping On Mud Near Building Site

Vernon v. Spoudeas & Anor, [2010] EWCA Civ 666, 6/5/10

Mon, 28 Jun 2010 16:09:30 GMT

Appeal Against Refusal Of Relief From Sanction Remitted Where Judge Failed To Give Reasons

The Chief Constable Northern Constabulary –v- A – Inverness Sheriff Court, 25 May 2010

Thu, 10 Jun 2010 14:01:35 GMT

This appeal to the Sheriff Principal related to a summary application seeking a Sexual Offences Prevention Order against the Defender/Appellant in terms of s104 of the Sexual Offences Act 2003. At an earlier hearing in August 2009, the Defender had not appeared and the Sheriff had decided that he was entitled to rely on the execution of service by two police officers as being ex facie valid and granted an order under s104 against the Defender. The Defender appealed against that decision and raised a preliminary question regarding an irregularity in the citation.

An interim order had been granted at a pre service hearing in July 2009 and two police officers had served a copy of the interim order on the Defender. This had included a copy of the whole of the Sheriff’s Order, dealing with the interim order and also granting warrant to cite the Defender. The Rules in relation to summary applications permit citation by post or by a Sheriff Officer (Rules 2.10 and 2.11 in Part II of Chapter 2 of the Summary Application and Appeals etc Rules 1999). The Defender pointed out that the expression “Sheriff Officer” did not include a Police Officer and there was no provision in the Rules for service of a summary application by a Police Officer. Although it had been competent for Police Officers to give him a copy of the interim order, and this had incorporated a copy of the warrant of citation, that did not satisfy the appropriate Rules. The citation should have been in a prescribed form (Form 3), which contains important advice for the Defender about what action he should take in response to the citation and the possible consequences of doing nothing. The Sheriff at first instance had been wrong to conclude that the execution of service by the police officers was ex facie valid. The Pursuer/Respondent did not accept that service had been defective. Although the Defender had not received Form 3, he had received a copy of the warrant of citation with the interim order and that had given him fair notice of the subsequent hearing. The Sheriff Principal decided that the citation had been “plainly irregular”. The Pursuer then moved the Sheriff Principal to relieve him of the consequences of that failure in terms of rule 2.3(1) of the 1999 Rules. The procedure followed in this case was the same procedure that the Police had followed since the 2003 Act had come into force. The Defender opposed this motion. It was not simply the case that the wrong form had been used. Service had been effected by Police Officers, rather than by Sheriff Officers. The Sheriff Principal did not consider it appropriate to excuse the Pursuer’s failure to comply with the Rules. He was influenced by the fact that the procedure adopted in this case had been used for many years. This meant that the Police had consciously disregarded the rules of procedure over a lengthy period. The Pursuer then argued that the Defender’s appearance in the action had remedied any defect in the citation by virtue of Rule 2.17 (1). This Rule indicated that a party who appeared could not object to the regularity of service and his appearance cured any defect in service. The Sheriff Principal made reference to the case of Cairney –v- Bullock 1993, SCLR 901 in which the proper construction of Rule 18 (1) of the Ordinary Cause Rules 1983 was considered. It was submitted that the language of Rule 2.17(1) was sufficiently similar to that of Rule 18 in the 1983 Rules to suggest that a similar approach should be taken to the meaning of the word "appear" in rule 2.17(1). A distinction was drawn between a party entering appearance in an action, for example by completing a Notice of Intention to Defend, and a party who “appears” in the sense that they raise an objection to the validity of citation. The critical question was what was meant by the words “appear” and “appearance” in Rule 2.17(1).

AWB v JP – Glasgow Sheriff Court, 1 June 2010

Thu, 10 Jun 2010 13:05:23 GMT

In a family action, the Defender withheld details of her current address. At proof, the Pursuer objected to the non disclosure. When the action was raised, the Defender had admitted the address in the instance in her defences. She later changed her address, but did not provided details of her up to date address. She averred that this was due to fear for her safety. The defences included bare allegations of physical and verbal abuse by the Pursuer, although the most recent incident was said to have happened in December 2006. The Pursuer submitted that a party to an action should be designed by reference to his or her name and address. If a party’s address changed during the course of proceedings, the onus was on that party to disclose an up to date address. In this case, disclosure of the Defender’s present address was necessary for any contact order that the Court might make. The Defender maintained that the onus was on the Pursuer to seek the Defender’s up to date address. The Defender also suggested that, if there were sufficient averments to support non disclosure, the Court had the discretion to allow a party to withhold personal details such as their current address. The Defender argued that her averments about the Pursuer’s conduct were sufficient for this purpose, although she accepted that the absence of an up to date address might cause problems in relation to enforcement of any Court order relating to contact. The Sheriff had to determine whether, in the circumstances of this case, the Defender was justified in refusing to disclose her present address.

R v. Upper Bay Ltd, 2/3/10, [2010] EWCA Crim 495

Thu, 20 May 2010 20:57:39 GMT

Parent’s Breach Of Duty To Supervise Child Did Not Absolve Swimming Pool Operator From Responsibility

Gouldbourn v. Balkan Holidays Ltd & Anor, 16/3/10, [2010] EWCA Civ 372

Thu, 20 May 2010 20:56:48 GMT

Standard Of Care Required Of Ski Instructors Judged Against Relevant Local Standards

University of London v. Zaman,[2010] EWHC 908 (QB)

Thu, 20 May 2010 19:28:19 GMT

Breach Of Contract Claim Not An Abuse Of Process Where Litigated Issues Fundamentally Different From Earlier Discrimination And Victimisation Proceedings

Murphy v. Smith News Trading Ltd & Anor, QBD, 16/3/10

Thu, 06 May 2010 19:09:22 GMT

Defendant Driver’s Excessive Speed Not Causative Of Road Traffic Accident

Kmiecic v. Isaacs, [2010] EWHC 381 (QB), 12/3/10

Thu, 06 May 2010 19:07:00 GMT

Householder Owes No Duty Of Care To Labourer Who Fell Of Ladder Whilst Repairing Roof

Steenberg & Anor v. Enterprise Inns Plc & Anor, [2010] EWCA Civ 201, 10/3/10

Wed, 05 May 2010 16:22:53 GMT

Judge Erred In Dismissing Claim Without Hearing All Relevant Evidence And Considering Submissions

West Sussex County Council v. Russell, CA, 12/2/10

Thu, 25 Mar 2010 14:22:45 GMT

The Court of Appeal held that the trial judge had been entitled to find the relevant highway in breach of its obligations under section 41 of the Highways Act 1980, in that a difference in height, a drop off of 6 to 12 inches, between a carriageway and verge, rendered a highway not reasonably safe for ordinary traffic, even after making due allowance for poor drivers. The expert evidence to that effect was inescapable and drove the conclusion made by the judge. Previous works undertaken by the highway authority raising the level of verges to the carriageway fixed it with constructive knowledge that the height of the drop off was dangerous and therefore it had failed for the purposes of section 58 to prove that it had taken such care as was reasonably required of it to secure that the highway was not dangerous for traffic.

Richardson v. Butcher, CA, 12/2/10

Thu, 25 Mar 2010 14:20:48 GMT

Burnett J held that the defendant driver had negligently hit an 8 year old child running out from the pavement into the road ahead, notwithstanding her defence that she had reasonably been concentrating on the vehicle immediately in front turning left, which could have prevented a hazard. Burnett J held that the claimant had been in the road for at least 2 seconds and was therefore there to be seen. The defendant’s failure to see the claimant constituted a failure to keep a proper look out and fell below the standard of care required and was negligent.

Porton Capital Technology Funds v. Porton Capital Inc & Ors, QBD, 2/2/10

Wed, 24 Mar 2010 16:45:59 GMT

Disclosure In Litigation Does Not Release Witnesses From The Confidentiality Duty Owed By Them To Disclosing Party

Bernadette Skillen v NIG LTD. - Livingston Sheriff Court, December 2009

Thu, 04 Mar 2010 14:59:47 GMT

The Pursuer claimed damages for injuries she suffered in a road traffic accident. Liability was not in dispute but quantum could not be agreed and a Proof took place. At the time of the Proof the Pursuer was 41 years old. She was the only witness to give evidence. On several important points her evidence was entirely different from the information she had given to the Consultant in Accident & Emergency Medicine and Surgery who had examined her and provided a medical report. Both parties had agreed that the terms of the report represented an accurate description of the nature and extent of the injuries sustained by the Pursuer and her treatment and prognosis. As a result, the Sheriff could not accept the Pursuer’s evidence as reliable. He was not able to accept any evidence from the Pursuer about the precise effects of the accident on her. The Pursuer stated in evidence that she had not yet recovered from her injuries but the Consultant’s report indicated that her symptoms had resolved fully within 10 months of the accident.The Sheriff found that the Pursuer had suffered a soft tissue injury to her neck from a whiplash distortion and a soft tissue injury to her lower back that had exacerbated the symptoms of pre existing degenerative changes to her spine. The Sheriff referred to the view he had expressed in another case - Valentine –v- McGinty - in which he had expressed the opinion that, in most cases, damages should be assessed by reference to the JSB Guidelines, rather than extensive reference to awards in other cases. In assessing solatium, the Sheriff took as a very general starting point the JSB Guidelines for minor back injuries where recovery was made within 2 years. The Guidelines suggested that an award should be no more than about £5,000. For a minor neck injury from which recovery was made within a year, an appropriate award was suggested at £850 and £2,750. The Sheriff took into account the fact that both the Pursuer’s injuries were caused by the same whiplash mechanism and that to some extent there was an overlap between the injuries. He also took into account the Pursuer's pre-existing back problem and noted that his assessment of her evidence had to count against her to a considerable extent. The Pursuer suggested a figure of £3,250 as solatium. The Defenders suggested a figure of £1,800. The Sheriff indicated that, if that figure had not been put forward by the Defenders, he may have made a lower award but, as the Defenders had suggested £1,800, he would award that figure for solatium.

Osei-Antwi v. South East London & Kent Bus Co Ltd, CA, 19/1/10

Wed, 24 Feb 2010 23:52:31 GMT

Pedestrian Hit By Bus Mounting Pavement Not Contributorily Negligent

Michael Henry v. Thames Valley Police, CA, 14/1/10

Wed, 24 Feb 2010 23:49:00 GMT

Police Officer Negligently Drove Police Car Too Close To Motorcycle To Allow Motorcyclist To Safely Dismount

Howe v. Houlton & Ors, QBD, (18 December 2009)

Thu, 04 Feb 2010 16:19:20 GMT

Lorry Driver Fully Liable To Claimant Motorist Parked Illegally

Glaister & Ors v. Appleby-In-Westmorland Town Council, CA, (9 December 2009)

Thu, 04 Feb 2010 16:18:07 GMT

Local Authority Owed No Duty To Procure Public Liability Insurance In Respect of Visitor to Horse Fair

South Somerset DC v. Tonstate (Yeovil Leisure) Ltd, ChD, 14/12/09

Thu, 04 Feb 2010 15:01:00 GMT

Issues In Amended Defence Not Barred By Issue Estoppel Pursuant To A Consent Order Made Under Original Defence

Duncan v City of Edinburgh Council - Edinburgh Sheriff Court, 6th November 2009

Thu, 21 Jan 2010 20:30:37 GMT

In a Summary Cause action, the Pursuer claimed damages following an incident in which his parked vehicle was struck and damaged by a vehicle driven by the Defender's employee. It was not disputed that the Pursuer needed a replacement vehicle. He hired a vehicle for 19 days at a cost of just under £5,000. Although prepared to pay the cost of repairing the Pursuer’s vehicle, the Defender disputed liability to pay the cost of an engineer’s report and also part of the hire charges incurred by the Pursuer. The Sheriff took the view that the cost of the engineer’s report was incidental to the cost of repairs and was a way of making sure that the repair costs were reasonable. It was common practice to obtain such a report and reasonably foreseeable that this cost would be incurred in mitigation of damages. On that basis it was recoverable. As regards the cost of hire, the Defender referred to the case of Lagden v O’Connor and argued that the Pursuer was not entitled to recover the full credit hire charges as far as these exceeded spot hire Rates.The Defender had obtained an alternative quote for the cost of hire for 19 days and this was just over £1,500. The Defender argued that it was for the Pursuer to show that he had been justified in hiring a replacement vehicle. The Sheriff pointed out, however, that the decision in Lagden v O’Connor made clear that if the Defender wished to argue that the Pursuer could have mitigated his loss more cheaply,the onus was on the Defender to establish this. In addition, it was for the Defender to show that the Pursuer had acted unreasonably. In this case, the Pursuer had already mitigated his loss considerably before hiring the vehicle. He did not hire a replacement vehicle until 28 days after the accident. He waited until his own vehicle was taken for repair, rather than hiring a replacement straight away. The Sheriff was of the view that the Pursuer had acted reasonably in relation to the replacement of a vehicle. He had been guided by his insurance company and they had referred him to the credit hire company he had used. The Sheriff did not think that the Pursuer was obliged to carry out a wide search to find an alternative hire company. In addition, he required a specialist vehicle with a tow hook. Under the circumstances, the Pursuer was entitled to recover the hire charges in full.

Lynette Valentine v Mark McGinty – Linlithgow Sheriff Court, May 2008

Thu, 21 Jan 2010 20:12:10 GMT

The Pursuer (aged 38 at Proof) raised an action of damages following a road traffic accident in October 2006. The Defender admitted liability but quantum could be not be agreed. The Pursuer was diagnosed with a whiplash injury and was prescribed painkillers. For about 2 months after the accident, the Pursuer suffered pain in her neck and had to take painkillers. The pain gradually settled over the following 5 months and the Pursuer’s symptoms had resolved fully within a year. As a result of her injury, the Pursuer had to have help with tasks round the house several weeks and could not take part in aerobic exercise for 2 – 3 months. The Pursuer argued that £3,500 should be awarded for solatium and the Defender suggested a figure of £2,000. Both parties accepted that the appropriate starting point for valuing solatium was the JSB Guidelines (8th Edition) and that the Pursuer’s injury should be classified in the lower bracket in the category of “minor” neck injury, for which the suggested range of damages was £750 to £2,550. Both parties referred to a large number of Sheriff Court cases in support of their suggested figure for damages. The Sheriff did not consider this a useful exercise. He suggested that this would have been appropriate if it had been difficult to fit the Pursuer’s injuries into a particular category in the Guidelines or if it had been argued that the JSB Guidelines were incorrect or misleading in some way, but that was not the case.The Sheriff expressed the opinion that, unless there was an obvious difficulty in applying the Guidelines, they were an appropriate starting point in considering damages and, in most cases, the damages actually awarded could be determined by reference to the Guidelines. The Sheriff considered himself bound by the decision of Sheriff Principal Bowen in Symington v Milne (2007, unreported). The facts in that case were difficult to distinguish from those in the present case. In Symington, the Sheriff at first instance had awarded £1,250 as solatium but the Sheriff Principal had increased this to £2,250. The Sheriff awarded damages of £2,250 in the present case but indicated that, if he had not been bound by the decision in Symington, he would have awarded £2,000 as solatium.

Kerr v Willis [2009] EWCA Civ 1248 (04 November 2009)

Tue, 29 Dec 2009 23:32:00 GMT

Judge Entitled To Reject Personal Injury Claim Where Eyewitness Evidence Did Not Support Claimant’s Evidence

Willmore v. Knowsley Metropolitan Borough Council, CA, (19 November 2009)

Tue, 29 Dec 2009 23:31:41 GMT

Exposure To Asbestos Above Minimal Level Enough To Establish Risk Of Harm

Fitzroy Robinson Ltd v. Mentmore Towers Ltd & Ors, QBD(TCC), (26 November 2009)`

Tue, 29 Dec 2009 22:39:37 GMT

Judicial Guidance On Applications to Adjourn At The Eleventh Hour

Sheriff Court Rules: Early Disclosure and Specification

Thu, 10 Dec 2009 15:47:18 GMT

David Wilson, partner at Digby Brown LLP, introduces the early disclosure/ specification aspect of the new Sheriff Court Rules.

Download the Act of Sederunt (Ordinary Cause Rules Amendment) (Personal Injuries Actions) 2009

West of Scotland Housing Association Ltd v Daly – Glasgow Sheriff Court, 23rd November 2009

Thu, 03 Dec 2009 20:56:40 GMT

The Pursuers/Respondents raised an action for recovery of possession of heritable property and obtained Decree in absence against the Defender/Appellant. A Minute for Recall of the Decree was lodged on the Defender's behalf in terms of Rule 24.1 of the Summary Cause Rules 2002. The Defender did not appear at the Hearing that was subsequently fixed and the Sheriff refused the application for want of insistence. The Pursuers then tried to enforce the Decree and the Defender lodged a further Minute for Recall. At the Hearing in relation to the second Minute, the Sheriff refused the Minute as incompetent and the Defender appealed that decision. Both parties agreed that the first interlocutor refusing the Minute for Recall has been incompetent as, even in the absence of the Defender, the Sheriff should have granted the application and recalled the Decree in view of the peremptory terms of Rule 24.1(7), which provides that, at the Hearing fixed under Rule 24.1(5), the Sheriff "shall recall the Decree". The parties could not agree on the effect of the incompetent interlocutor, however. The Pursuers simply argued that the Sheriff’s decision to refuse second Minute for Recall of Decree as incompetent had been correct. The Defender attempted to persuade the Sheriff Principal that the terms of Rule 24.1(1), which state that "a party may apply for recall...on one occasion only" should be interpreted as meaning that a party could obtain the Recall of a Decree on only one occasion. The Defender's argument was that there had been no application for Recall until the Minute applying for Recall had actually been granted. The Sheriff Principal had to decide whether the Defender's interpretation of the Rule was correct.

Simplified Pleadings - Personal Injuries Actions in the Sheriff Court

Thu, 03 Dec 2009 20:37:10 GMT

David Wilson, partner at Digby Brown LLP, introduces the simplified pleadings aspect of the new Sheriff Court Rules.

Download the Act of Sederunt (Ordinary Cause Rules Amendment) (Personal Injuries Actions) 2009

Craggy v Chief Constable of Cleveland Police [2009] EWCA Civ 1128 (06 October 2009)

Thu, 03 Dec 2009 17:42:44 GMT

Not Reasonably Forseeable That Another Emergency Vehicle May Enter A Junction Against A Red Light

Taleb v Trina Coaches Ltd [2009] EWCA Civ 1250 (05 October 2009)

Thu, 03 Dec 2009 17:41:21 GMT

Judge Failed To Provide Adequate Reasons for Disregarding The Claimant’s Evidence

Maher & Anr v Groupama Grand Est (CA) (12 November 2009)

Thu, 03 Dec 2009 17:23:00 GMT

Where a claim for personal injuries following a road traffic accident was brought direct against the third-party’s insurers that claim was to be characterised as an action in tort and damages are to be assessed in accordance with English law. That the third-party’s right against insurers arises under contract does not alter this. The existence of a right to recover interest as a head of damage is a matter of the law of the tort, but whether such a substantive rights exists or not, the English courts have available to them the remedy of interest created by section 35A of the Senior Courts Act 1981. In determining whether to exercise the discretion under section 35A the Court is entitled to take in to account any relevant provisions of the law of the tort relating to the recovery of interest. Article 11 (3) of Regulation 44 permits a Claimant as well as an insurer to joined the third party insured as an additional defendant in proceedings brought by the Claimant direct against t he third party’s insurers.

Mullock v Price (t/a the Elms Hotel Restaurant) [2009] EWCA Civ 1222 (15 October 2009)

Thu, 03 Dec 2009 16:30:11 GMT

Judge Took Into Account Irrelevant Considerations In Setting Aside Default Judgment 2 Years Later

Web Resolutions Limited v Derek Glen & Suzanne McIntosh – Hamilton Sheriff Court, 9 November 2009

Thu, 19 Nov 2009 20:08:47 GMT

The Defenders/Appellants appealed against the Sheriff’s decision to refuse their Reponing Note in an action raised against them under the Conveyancing & Feudal Reform (Sc) Act 1970. The Pursuers/Respondents wished to repossess the Defenders’ property. Decree in absence had been granted against the Defenders after they had failed to enter appearance. The Reponing Note was lodged almost 2 months later on the day before the Defenders were due to be ejected from the property. The Reponing Note had given no explanation for the failure to enter appearance. The Reponing Note had stated that the Defenders intended to defend the action by lodging a Mortgage Rights Minute application under Section 2 of the Mortgage Rights (Sc) Act 2001. They intended to have the Pursuers’ rights as creditors suspended in terms of that section with a view to allowing them to address their financial issues and come to a payment arrangement with the Pursuers. The Sheriff had taken the view that the Defenders had taken no steps to respond to the Initial Writ. They had offered no explanation for this, apart from expressing a hope that matters would simply go away. They had given no reason for their failure to react at an earlier stage and they had done nothing to help themselves. The lodging of the Reponing Note was simply a delaying tactic. At the appeal hearing, the Appellants suggested that the Sheriff had focused solely on the absence of an explanation for their failure to deal with the writ. He had not addressed the question of the order which they were seeking under the 2001 Act. They argued that they had a stateable defence based on their intention to obtain finance to repay the outstanding sums. Matters had moved on since the Reponing Note hearing, however, and the Defenders had not been able to make repayment arrangements. Instead, they now wished to participate in a mortgage to rent scheme. It was accepted that this would require the consent of the Pursuers but that no steps had been taken to obtain consent and that, even if they did enter into such a scheme, there would be a shortfall. In addition, there was a second charge over the property held by another heritable creditor. The onus was on the Defenders to negotiate a settlement with the creditors in relation to any shortfall under the mortgage to rent scheme. The Defenders hadn’t contacted the Pursuers to discuss a possible settlement, however. The Pursuers argued that the Defenders’ position - that they proposed to proceed with an application under the mortgage to rent scheme - would not provide a defence. It was also not a defence by itself simply to state that the mortgage rights application would be made. The Defenders would have to state what would be in the application so that the Court could consider whether there was a stateable defence. Nothing in the Reponing Note gave the necessary specification. In the Reponing Note, both Defenders stated they were working, but there was no explanation as to why no payment had been made to the Pursuers for over a year. Under the circumstances, the Sheriff had been entitled to take the view that the Reponing Note was simply a delaying tactic. There had been no detailed information about how the Defenders intended to clear their indebtedness when their borrowings were substantially in excess of the value of the property and, on that basis, there was no stateable defence. The Sheriff Principal had to consider whether the Sheriff had been entitled to refuse the Reponing Note.

McKenna v Aitchieson - Paisley Sheriff Court - 12th November 2009

Thu, 19 Nov 2009 19:34:02 GMT

The Pursuer raised an action of damages for injuries sustained in a road traffic accident. He was retired and aged 69 at the time of the accident and 71 at proof. Liability was admitted and the only issue in dispute was the value of solatium. Following the accident, the Pursuer had experienced pain and stiffness in his neck and shoulders. He had consulted his GP 4 days later and had been diagnosed with a whiplash injury. He had been prescribed analgesia and referred for physiotherapy. The Pursuer had been diagnosed as suffering from cervical spondylitis in 1988, but had been free of symptoms for many years. The accident had caused an acute exacerbation of his condition. The Pursuer continued to suffer neck pain and took painkillers daily. The Pursuer's symptoms would be fully resolved by April 2010 - 26 months after the accident. Following a Proof, The Pursuer referred to a number of authorities and suggested an appropriate award for solatium would be £5,000. The Defender also referred to authorities and argued that solatium was worth £3,500. The Sheriff drew the parties’ attention the dicta of Sheriff Kinloch in Valentine v McGinty (Linlithgow Sheriff - Court 20 May 2008) and Sheriff Davidson in Sivewright v Sands (Dundee Sheriff Court - 6th May 2009) to the effect that appropriate reference to the JSB Guidelines was preferable to selective citation of unreported authorities. He assessed solatium at £3,750.

Mackie t/a 197 Aerial Photography v Askew – Ayr Sheriff Court, August 2009

Thu, 12 Nov 2009 20:38:27 GMT

The Pursuer/Appellant raised an action at Ayr sheriff Court claiming damages for both breach of copyright and for breach of the Defender/Respondent’s statutory duty under the Copyright, Designs and Patents Act 1988 to identify the Pursuer as the owner of photographs that the Defender had published on her website. The Pursuer had taken aerial photographs of areas in Largs and had displayed these as digital images on his website. Two of these photographs were later displayed on the Defender’s commercial website advertising her business. She had not sought a licence for use of the images. The Pursuer lived and worked in Troon and his business was based there. Troon is in the jurisdiction of Ayr Sheriff Court. The Defender lived and had her business within the jurisdiction of Greenock Sheriff Court and her business involved renting properties in Largs, which is also within that jurisdiction. The Pursuer based jurisdiction on Schedule 8.2 (c) of the Civil Jurisdiction & Judgements Order 2001. This provides that a person may be sued “in matters relating to delict or quisi delict, in the Courts for the place where the harmful event occurred or may occur”. The Pursuer argued that the harm that had been done to him occurred in the jurisdiction of Ayr Sheriff Court, both in terms of the copyright infringement and the breach of statutory duty. He also referred to Schedule 8.2(i) of the 2001 Order, which provides for proceedings relating to proprietary rights in moveable property to be raised in the courts for the place where the property is situated. Copyright was a property right and the Pursuer was the owner of that property. At a hearing restricted to the issue of jurisdiction, the Sheriff had dismissed the claim for want of jurisdiction. He had decided that it was the uploading of the photographs that had been the harmful event and that had taken place at the Defender's place of business. At the appeal, the Sheriff Principal had to determine whether the Sheriff had been correct to dismiss the action. He referred to Anton and Beaumont’s “Civil Jurisdiction in Scotland” and the interpretation there of the words “where the harmful event occurred”. The Sheriff Principal was of the view that the Pursuer could raise proceedings against the Defender either in the place where the damage occurred, that is the Pursuer’s place of business in Troon, or in the Court of the place where the event which gave rise to the damage took place. The Sheriff had erred in dismissing the action and the appeal was allowed. The case was remitted to the Sheriff to fix a full hearing.

AC Ward & Son v Catlin (Five) Ltd & Ors [2009] EWCA Civ 1098 (10 September 2009)

Mon, 02 Nov 2009 11:43:01 GMT

Insurance Claim Could Not be Disposed of Summarily Where Terms Were “Draconian”

Oceanbulk Shipping & Trading SA v TMT Asia Ltd & Ors [2009] EWHC 1946 (Comm) (29 July 2009)

Wed, 28 Oct 2009 11:09:00 GMT

The Admissibility of Without Prejudice Exchanges

Bourne Leisure Ltd (t/a British Holidays) v Marsden [2009] EWCA Civ 671 (13 July 2009)

Thu, 08 Oct 2009 19:30:55 GMT

Danger Posed By Pond to Unaccompanied Children was Obvious

AB & Ors v Nugent Care Society & Anor (Rev 1) [2009] EWCA Civ 827 (29 July 2009)

Thu, 08 Oct 2009 18:28:00 GMT

Guidance on the Application of Section 33 of the Limitation Act 1980

Dorothy Elizabeth Munro v. Aberdeen City Council [2009] CSOH 129

Tue, 22 Sep 2009 17:12:37 GMT

Proof:- In this action the pursuer sought damages from the defenders, her employers, after she slipped on ice in a car par in Aberdeen on 1 March 2004 during the course of her employment. Here at proof all the evidence was agreed by way of a joint minute of admissions, including inter alia that the car park was part of her workplace in terms of the Workplace (Health, Safety and Welfare) Regulations 1992. The only issue related to statutory interpretation. Quantum was agreed at £150,000, which included a quarter discount for contributory negligence in the event that the pursuer was successful in relation to the issue of interpretation. The interpretation issue related to regulation 5(1) of the 1992 Regulations which states:- "The workplace ... shall be maintained (including cleaned as appropriate) in an efficient state, in efficient working order and in good repair." It was submitted on behalf of the defenders that regulation 5(1) did not apply and the relevant regulation was 12(3) as there is a distinction between structural defects in a workplace, which attract absolute liability, and transient hazards where the employer's duty is qualified. Here the pursuer's case was not based upon regulation 12(3) but on a breach of the absolute duty laid down in regulation 5(1). It was submitted on behalf of the pursuer that the ice presented an obvious and real risk to users of the car park and with the pursuer slipping on the ice resulting in injury, and with the defenders accepting that the car park was part of the pursuer's place of work, it followed that the defenders were in breach of regulation 5(1) by not maintaining the car park in an efficient state. Here the court considered which regulation the pursuer had a claim under and the defenders' obligations and duties for long-term dangers and their qualified duties for more short-lived transient conditions as in the present case.

Mark Matthewson v Robert Graham – Arbroath Sheriff Court, 22 June 2009

Thu, 10 Sep 2009 13:36:34 GMT

In an action for damages for personal injuries, where liability was admitted but there was a dispute over quantum, a Tender had been lodged and accepted. The Pursuer made a motion to have two witnesses, a consultant orthopaedic surgeon and a vocational employment consultant, certified as skilled witnesses and to sanction the use of Counsel. The Pursuer argued that the employment of Junior Counsel had been appropriate because of the complexity of the case, which involved the issue of chronic pain syndrome. The value of the claim had also been increased during the course of the action. The Defender argued that the Pursuer’s agents were very experienced reparation solicitors and that the claim involved nothing out of the ordinary. There was nothing unusual or complex in the action. The consultant orthopaedic surgeon had been the Pursuer’s treating surgeon and had prepared two reports containing opinions on prognosis. The Defender argued that the consultant had done nothing beyond being the treating surgeon. The vocational employment consultant had produced a report to assist on the issue of the future employment prospects. The Pursuer argued that the consultant had specialised knowledge but the Defender's position was that his report had not been necessary. He was not an expert and had simply been asked to do a calculation. The Sheriff had to determine whether the case was appropriate for the employment of Counsel by considering whether it involved matters of difficulty, complexity and importance, as well as the value of the claim. He also had to determine whether the Pursuer’s witnesses should be certified as skilled witnesses. MacPhail, Sheriff Court Practice and the Act of Sederunt (Fees of Witnesses and Shorthand Writers in the Sheriff Court) 1992 were considered.

Teviotdale v Norwich Union Insurance Limited – Dumfries Sheriff Court, 23 June 2009

Thu, 13 Aug 2009 19:40:07 GMT

Following a Proof in a Small Calim action, the Sheriff found in favour of the Pursuer and granted Decree for just under £1,000. He was addressed in the question of expenses and found the Defenders liable to the Pursuer in expenses as assessed in the Summary Cause Scale on the basis that there had been unreasonable conduct on the part of the Defenders. The Defenders appealed the decision in relation to expenses. The Pursuer dad claimed damages following an accident. Quantum had been agreed and the Proof was restricted to liability. The Pursuer maintained that she had been driving into a parking space when the Defenders' Insured had reversed at speed and collided with her vehicle. The Defenders’ position was that, while their insured had been reversing into the parking space, the Pursuer had tried to drive into the same space and had caused the collision. They claimed that the Pursuer’s car had not been in the vicinity when their insured had started his reversing manoeuvre. The Small Claims (Scotland) Order 1988 as amended by the Small Claims (Scotland) Amendment Order 2007 sets out the expenses that are recoverable in a Small Claim action. Section 36B of the Sheriff Courts (Scotland) Act 1971 sets out a number of exceptions to the rule limiting recoverable expenses in a Small Claim. One of the exceptions is where there has been “unreasonable conduct” on the part of a party. The Sheriff had recorded that the Pursuer and her witness had travelled from Liverpool to the Hearing. Her evidence had been supported by her witness. The Defenders’ Insured had explained that he had driven out of the parking space to allow another car to leave its space. He then tried to reverse back into his space, and collided with the Pursuer’s car. He admitted that he had not seen the Pursuer’s car when he was reversing as it had been in his blind spot. One of the Sheriff’s key considerations had been that the Insured had never seen the Pursuer’s car enter the car park. He had suggested in evidence that the Pursuer must have driven into the car park too quickly but that had been simply speculation. After the evidence had been heard, both agents had provided the Sheriff with diagrams showing how the accident had occurred and these had been substantially identical. The Sheriff had found that the Defenders’ Insured was at fault as he had a duty of care to keep a proper lookout for other vehicles and he had not seen the Pursuer’s vehicle. There had been no contributory negligence. The Defenders’ behaviour had been unreasonable as they had allowed the matter to proceed to a proof without making any offer to settle. For there to have been any reasonable hope of the Insured’s account succeeding, there would need to be clear evidence that the Pursuer had been driving too fast but there had not been evidence to support such a conclusion. As an insurance company with experience in road accident claims, the Defenders should have realised the difficulties their Insured faced as he had been the one reversing in the car park. There were also steps that the Insured could have taken to avoid the collision. In all the circumstances there had been a very strong likelihood that the Defenders would not succeed in their defence based on the information they had about the accident. It would have been prudent for the Defenders as a commercial organisation to have taken steps to limit their exposure to a motion for expenses on the Summary Cause Scale, perhaps by making an offer to settle, at least on a pragmatic basis. The fact that they had not done so was unreasonable conduct. At the appeal, the Defenders provided two documents, which had not been available to the Sheriff – a copy of the insured’s claim form and a telephone attendance note relating to a conversation with the Insured. It was argued that there had been enough information to allow the Defenders to defend the claim. They had been entitled to go to Proof and to make the Pursuer prove her case. It was suggested that the Insured’s evidence about not having seen the Pursuer’s car as it had been on his blind spot was not consistent with the information he had given the Defenders. The Defenders had been acting in good faith. It was also submitted that it was the Insured’s conduct and not that of the Defenders that should be considered. The Sheriff Principal decided that the Sheriff had been correct to consider the conduct of the Insurers as the party to the action rather than the conduct of the Insured. He took the view that the Sheriff’s decision was one that he had been well entitled to make in light of the information available to him. There had been clear evidence of fault on the part of the Defenders’ Insured and their conduct in failing to negotiate a settlement had been unreasonable because this information had been available to the Defenders during the course of their investigation. The Sheriff Principal refused the Pursuer's motion to certify the appeal as suitable for the employment of Counsel.

Mark Adams v National Insurance & Guarantee Corporation Limited – Edinburgh Sheriff Court, July 2009

Thu, 13 Aug 2009 19:07:12 GMT

The Pursuer raised an action for damages after he was injured when his stationery car was struck from behind by a car being driven by the Defender’s insured. Liability was admitted but there was a dispute over the value of solatium and a Proof took place. The Pursuer gave evidence and the terms of a medical report were agreed by Joint Minute. At the time of the Proof, the Pursuer was 48 years old. As a result of the collision, he suffered pain from some tearing of the muscles in his left upper back and soreness in his left shoulder. He was prescribed Ibuprofen. He was referred to a physiotherapist and had about 20 sessions of treatment. His sleep was disturbed and, initially, his upper body movement was restricted and he was in constant pain. The Pursuer was self employed and did not take time off work. He reduced the amount of driving he undertook and was unable to resume his hobbies of yoga, woodworking and fishing until he had completed the physiotherapy sessions. He recovered within 12 months of the accident. The Pursuer argued that a reasonable value of solatium would be £4,000, with interest at 4% from the date of the accident for a period of 12 months and at 8% after that. The Pursuer referred to a number of cases and also the JSB Guidelines. The Defender argued that the proper value for solatium was between £1,800 and £2,250. Again, a number of cases were referred to, as well as the JSB Guidelines. The Sheriff considered an appropriate award of solatium to be £4,000, together with interest as agreed by the parties.

Armsden v Kent Police [2009] EWCA Civ 631 (26 June 2009)

Thu, 06 Aug 2009 15:29:17 GMT

Police’s Failure to Use Siren had Contributed to Accident: The Court of Appeal held that a police force were 40% responsible for an accident in which a police car had collided with another car at a junction. The police officer’s failure to use a siren had affected the speed at which it was safe for his police car to travel and had exacerbated the danger that there might be another car about to enter the junction. Although the judge had been correct to find that the driver should have looked again before moving off, in the circumstances it had to be said that the police car’s excessive speed had contributed to the accident.

Shah v Ul-Haq & Ors [2009] EWCA Civ 542 (09 June 2009)

Thu, 06 Aug 2009 15:27:55 GMT

Support of Fraudulent Claim Did Not Deprive Claimant of His Own Damages
The Court of Appeal held that there was no support in law for the proposition that a Claimant should be deprived of damages in his own claim purely on the basis that he had supported a fraudulent claim made by another person. It was invariably the case that, where a claim had been dishonestly exaggerated, a judge would award the limited damages that were appropriate to his findings, but would award the Claimant the damages to which he was indisputably entitled. There was no logical justification for suggesting that a Claimant who had lied about another person’s claim should be treated any differently than someone who had lied about his own claim.

Gray v Thames Trains & Ors [2009] UKHL 33 (17 June 2009)

Thu, 06 Aug 2009 15:26:28 GMT

Damages Caused as a Consequence of the Claimant Committing Manslaughter were Ex Turpi Causa
The House of Lords held that a Claimant who had suffered psychological problems as a result of the negligence of the Defendant could not recover losses suffered as a consequence of a criminal act he had committed (and consequential sentence imposed upon him) as a result of those problems. The Court of Appeal had been correct to hold that it was an aspect of the ex turpi causa principle, based upon public policy, that the Claimant could not recover damages. Although it was true that the Claimant’s earning capacity would have been impaired by his condition in any event, the principle in Jobling v. Associated Dairies (1982) precluded liability.

Digicel (St. Lucia) Ltd & Ors v Cable & Wireless Plc & Ors [2009] EWHC 1437 (Ch) (17 June 2009)

Wed, 17 Jun 2009 13:16:00 GMT

Statement Recording the Fact that Legal Advice Has Been Given is Not Necessarily Privileged:-Morgan J. held that statements that referred to the fact that a party had sought legal advice, but made no reference whatsoever to the content of the legal advice received, did not in themselves give rise to an implied waiver of legal privilege in that advice. Although the privileged material may have been of relevance to a Court’s fact-finding exercise, relevance was not in itself sufficient to give rise to an implied waiver of privilege. Fairness was not a touchstone from which the Court could determine whether or not there had been a waiver.

Smith (Appellant) v Northamptonshire County Council (Respondents), [2009] UKHL 27

Wed, 20 May 2009 14:50:00 GMT

The appellant, Mrs Smith, was employed by the respondents (“the council”) as a driver and carer. As part of her job she was required to collect people who were in need of care from their homes and take them by minibus to a day centre. One of those whom she had to collect, Mrs Cotter, was confined to a wheelchair. To get her out of her house the appellant had to take her down a wooden ramp outside the doors which led from the living room to a patio. This was a task that she performed many times without incident. But as she was doing this on 1 December 2004 an edge of the ramp crumbled beneath her foot, causing her to stumble and sustain injury.

The appellant raised proceedings against the council, claiming damages. Her case proceeded based upon an allegation that the council was in breach of the Provision and Use of Work Equipment Regulations 1998.

The question which the judge had to decide was whether the1998 Regulations applied in this case. The judge held that they did apply because the ramp was “work equipment” as defined by reg 2(1) and it was being “used at work” within reg 3(1). It followed that there was a breach of reg 5(1). The council appealed, and the Court of Appeal allowed the appeal. It held that the ramp was not work equipment used by the appellant at work for the purposes of the Regulations. The most significant factors in this case were that the ramp had been installed by people other than the council’s own employees (it had been placed there by the NHS), that the council had no ability to maintain it and that in ordinary parlance it was part of Mrs Cotter’s premises.

The appellant appealed to the House of Lords.

By a majority of 3:2, the House dismissed the appeal. The majority held that liability for the condition of the ramp should not attach to the respondent employer. The respondent council did not supply or repair the ramp. It had inspected it at an earlier stage, but, it was merely being careful of its employees’ safety and such care should not give rise to liability which is not otherwise covered by its statutory duty. Further, the ramp did not come within the respondent’s undertaking or establishment.

David Sandeman Boath v. Perth and Kinross Council [2009] CSOH 66

Wed, 20 May 2009 09:49:00 GMT

This cause was remitted from Perth Sheriff Court and raised important questions concerning the Community Care and Health (Scotland) Act 2002. It was submitted on behalf of the pursuer that a range of services provided by the defenders to him and to his late wife should have been provided free of charge by virtue of the provision of the 2002 Act and the pursuer sought reimbursement of the charges paid. It was submitted on behalf of the defenders that certain of the services were properly chargeable and they defended the action and counter claimed for additional sums due by the pursuer on the assumption that the services were chargeable. The two issues to be considered by the court here were:- (1) "has the pursuer averred a relevant case that under the 2002 Act the defenders were not entitled to charge for services provided on account of their customer's / client's substantial immobility by way of laundry, housework and meals on wheels?; and (2) "In any event, has the pursuer averred a relevant case that under the 2002 Act the defenders were not entitled to charge for the element of the charge for meals on wheels that is attributable to the preparation of food?" Here the court considered those two questions in light of the construction of the legislation and the intention of Parliament in enacting the legislation and whether food preparation, meals on wheels, laundry and housework were chargeable.

Robert & Margaret Greer v Hartley Holiday Parks Ltd & The Royal Bank of Scotland plc – Hamilton Sheriff Court, 21 April 2009

Thu, 14 May 2009 19:41:00 GMT

First Defenders/Appellants appealed against the Sheriff's decision to allow a Proof before Answer following a debate.The Pursuers/Respondents had entered into a share purchase agreement ("the Agreement") for the sale of their business to the First Defenders/Appellants. The Agreement confirmed that the price to be paid for the business was subject to adjustment as the finalised accounts for the business would not be available on the date of the hand over. One of the mechanisms for adjustment of the price was that, after completion, there was to be a conclusive profit and loss statement made up down to the hand over date. A sum was retained and held by the Royal Bank of Scotland, the Second Defenders, and this was to be released in accordance with the balance found due in the profit and loss statement.There were three ways in which the profit and loss statement could become conclusive. One method involved the Pursuers submitting a profit and loss statement verified by their accountants to the first Defenders' accountants. The essence of the dispute between the parties was that the Pursuers claimed that they had invoked this mechanism effectively by intimating their accountants’ profit and loss statement to the First Defenders directly. There had been no reply on behalf of the First Defenders and, on that basis, the statement was deemed to be conclusive. The First Defenders’ position was that the Pursuers had not effectively invoked the required mechanism as the profit and loss account was not submitted to the First Defenders’ accountants as required by the Agreement. Unless the profit and loss statement was regarded as final, none of the remedies sought by the Pursuers in the action would be available. The First Defenders’ had argued at the debate that, as the strict terms of Agreement had not been complied with, the Pursuers had no rights against them in terms of the Agreement and the action should be dismissed. The Sheriff had concluded that the pleadings demonstrated that the parties were in dispute as to the interpretation of the relevant clause in the Agreement and that there were disputed issues of fact between them. On appeal, the First Defenders submitted that, where parties have agreed particular formalities in a contract, they are entitled to hold each other to those formalities.The First Defenders referred to a number of cases in support of their contention. The parties had agreed the formalities of how the profit and loss statement should be prepared, reviewed and agreed in the Agreement. The Defenders argued that the relevent clause in the Agreement could properly be catergorised as a notice provision. The issue was whether there had been compliance with the formal requirements imposed by the contract in respect of the service of the notice – in this case intimation of the profit and loss statement. This was a distinct issue from the construction of the notice or intimation after it had been served, in the sense of what the notice of intimation was intended to mean. The Pursuers’ position was that intimation to the First Defenders direct was part of the Agreement and could be considered intimation in terms of that Agreement. It was argued that the Sheriff had been correct to rely on the case of City Wall Properties (Scotland) Ltd v Pearl Assurance plc 2007 CSIH 79 in reaching his decision. The First Defenders’ preliminary pleas had been reserved, not repelled, and the First Defenders could still rely on these at a PBA. The Sheriff Principal had to decide whether the Sheriff had been correct in deciding that there were grounds for allowing a PBA.

Oceanfix International Limited v ATIP Kazakhstan North Caspian Operating Company NV – Aberdeen Sheriff Court, 3 April 2009

Thu, 30 Apr 2009 14:10:00 GMT

The Pursuers raised an action for payment of a sum that the Defenders had withheld in respect of invoices rendered for work done under a contract between the parties. The Defenders were a Dutch company registered in The Haig with a place of business in the Republic of Kazakhstan. The Defenders claimed that they had withheld the money properly in terms of Kazakhstan law. The issue between the parties was whether the Defenders were obliged under Kazakhstan law to withhold tax when paying the Pursuers’ invoices. The parties had entered into a written contract in terms of which the Pursuers provided qualified specialist personnel to act as client representatives for the Defenders during various surveying activities, most of which took place off-shore or on-shore in Kazakhstan. Payment was to be made into the Pursuers’ bank account in Aberdeen. “Applicable Law” was defined in the contract, and for the purposes of the present action, that was the law of Kazakhstan. A number of clauses in the contract covered the liability for taxes. The Defenders did not dispute that Aberdeen Sheriff Court had jurisdiction to hear the case, but argued that the Courts of Kazakhstan also had jurisdiction and the parties had prorogated the non exclusive jurisdiction to those Courts in terms of the contract. Those Courts were a more appropriate forum for hearing the case. It was open to the Sheriff Court to decline to exercise its jurisdiction and it should do so in this case for a number of reasons. In particular, the law and practice of Kazakhstan would have to be considered and the issue in dispute had no connection with Scotland. The Kazakhstan Courts were in a better position to do justice between the parties and this was the test to be applied. The Pursuers submitted that it was not open to the Sheriff Court to decline to exercise the jurisdiction which it had in respect of the dispute. It was submitted that the plea of forum non conveniens was no longer applicable in Scotland in cases where jurisdiction was founded on Council Regulation number 44/2001. Article 5 (1)(a) of that Regulation provided that “a person domiciled in a Member State may, in another Member State, be sued …. in matters relating to a contract, in the Courts for the place of performance of the obligation in question“. Jurisdiction in the present case could be founded on the place for performance of the obligation, namely payment of the invoices, which was the Pursuers’ bank account in Aberdeen. Even if this was competent for the Court to decline to exercise jurisdiction, this would be inappropriate as Aberdeen Sheriff Court was a more appropriate forum for the determination of the dispute. The contract had a number of connections with Scotland and a Scottish Court could investigate and determine foreign law. If the Court did have the powerto decline to exercise jurisdiction, the Defenders had not discharged the onus in respect of the test for determining whether that power should be exercised as laid down in Sim v Robinow (1892) 19R 665. Finally, even if the test had been met, there were special reasons why the power should not be exercised. These related to difficulties which might arise in relation to the enforcement of a Decree from the Kazakhstan Courts. The Sheriff had to determine whether the plea of forum non conveniens was available in this case.

Bridgefoot Building Contracts Limited v James Michie and others – Dundee Sheriff Court, 9 April 2009

Thu, 30 Apr 2009 13:27:00 GMT

The Appellants/Defenders appealed against the Sheriff’s decision to grant commission and diligence in terms of a Summary Application brought under Section 1(1) of the Administration of Justice (Scotland) Act 1972 (“the 1972 Act”) for recovery of documents held by or on behalf of the Appellants. The application related to documents relevant to proceedings which might be brought, rather than an existing action. The Appellants appealed on three grounds. They contended that the application was incompetent. They challenged the Sheriff’s interlocutor by reference to the merits of the application. Finally, they claimed that the Sheriff’s interlocutor was not in proper form. On the first ground, reference was made to Rule 3.1.2 of the Act of Sederunt (Summary Applications, Statutory Applications and Appeals Etc Rules 1999 (“The 1999 Rules”). This Rule provides that an application for an order under Section 1(1) of the 1972 Act should be made by Summary Application where the proceedings in respect of which the application is made have not been raised. In terms of Rule 3.1.2 (2), the Summary Application shall contain “the facts which give rise to the Applicant’s belief that, were the Order not to be granted, the items listed, or any of them, would cease to be available for the purposes of s1 of the Act.” It was accepted that, in the present case, no such facts were averred. The Appellants argued that, on that basis, the application was incompetent. The Respondents contended that the provisions of Rule 3.1. 2(2)(c) only applied to applications for an order for commission and diligence which were sought ex parte before service of the application (a “dawn raid” situation). It was suggested that the rule requiring such averments had been introduced to protect the defender’s human rights. In a case like this, however, where the Defenders had advance notice of the application and an opportunity to be heard before any order was made, the same human rights considerations did not arise. The Sheriff Principal concluded that, while Rule 3.1.2. (2) (c) was apparently of general application, when looked at in the context of the 1999 Rules, that Rule only applied to applications for an order for commission and diligence before service of the application. As regards the merits of the application, it was clear from the authorities that the Petitioners had to show that proceedings were likely to be brought and that they had a prima facie or stateable case. There was no requirement, however, that they should make full averments to meet the usual tests of relevancy and specification. In assessing whether a prima facie case existed, the Sheriff should take into account any defence offered against it. The Sheriff at first instance had had no hesitation in concluding that there was an intelligible prima facia case. The Respondents argued that the Sheriff had not given proper weight to their representations in response to the averments in the application and also that he had been wrong to conclude that the Petitioners had made out an intelligible prima facie case. The Sheriff Principal considered that the Sheriff had been correct. He refused the Appeal in respect of the first two grounds and assigned a further Diet in respect of the final ground.

Whippey v Jones [2009] EWCA Civ 452 (08 April 2009)

Tue, 07 Apr 2009 23:00:00 GMT

Dog Owner Did Not Contemplate Injury Caused by His Act or Omission: The Court of Appeal held that, before finding that a dog owner’s standard of care had fallen below the objective standard expected, the trial judge had to be satisfied that a reasonable person in the dog owner’s position would contemplate that the injury caused by the dog was likely to follow from his acts or omissions. The trial judge had been incorrect, for the purposes of the Animals Act 1971, to find liability where the injury was a “possibility” as opposed to being likely. In the circumstances, the dog handler had not acted unreasonably in unleashing the dog when he did.

Orchard v Lee [2009] EWCA Civ 295 (03 April 2009)

Thu, 02 Apr 2009 23:00:00 GMT

Schoolboy Not Liable For Injury Caused During Game of Tag: The Court of Appeal held that a 13-year-old schoolboy was not liable to a lunchtime supervisor in respect of injuries she sustained when he collided with her whilst playing a game of tag in an outdoor area. The Court were clear that the boy’s conduct was typical of a 13-year-old boy when playing tag; no part of his conduct was outside of the norm, nor was he breaking any rules. His conduct could not be described as being careless to a very high degree, and therefore he should not be considered culpable. In any event, a reasonable 13-year-old boy would not have anticipated that there was sufficient probability that the harm actually caused would have resulted.

South East Traders Limited v Garry Robertson – Airdrie Sheriff Court, 4 March 2009

Thu, 26 Mar 2009 22:05:00 GMT

The Pursuers/Appellants raised an action for interdict. Interim interdict was granted pre service and a hearing was then assigned. Both the Pursuers and the Defender were represented at that hearing, at which the Sheriff continued the interim interdict previously granted. The Defender/Appellant then enrolled a motion to have the interim interdict recalled. His motion was refused and he lodged an appeal against that decision. The Pursuers raised a preliminary issue as to the competency of the appeal. The Defender had not obtained leave to appeal to the Sheriff Principal from the Sheriff. The Sheriff Principal took the view that either party could have appealed the Sheriff’s decision to continue the interim interdict without leave on the basis of Section 27 (a) of the Sheriff Court (Scotland) Act 1907, which allows appeal to the Sheriff Principal against all final judgements of the Sheriff and also against interlocutors granting or refusing interdict, interim or final. That was consistent with the decision of Sheriff Principal Nicolson in ASA International Limited v Nelson 1999 SLT (SH CT) 44. In this case, however, the Defender had enrolled a motion seeking to have the interim interdict recalled and a further hearing had taken place. The Sheriff had heard submissions and then refused the motion. The Defender was appealing against that interlocutor. The Sheriff Principal saw a substantial distinction between the hearing which had taken place after the interim interdict had been granted and the further hearing. At the further hearing, the Sheriff had been asked to decide whether to recall the interim interdict. She had not been asked to grant or refuse an interim interdict. That decision had already been taken. Section 27 (a) of the 1907 Act only allows an appeal without leave against the grant or refusal of an interdict, whether interim or final. The Sheriff’s interlocutor following the second hearing did not fall into that category. The Sheriff had refused the motion to recall the interim interdict and that decision was not among those listed in Section 27(a). It was noted that the Court of Session Rules specifically include a decision to recall an interim interdict as being one for which leave to appeal was not required. In contrast, the Sheriff Court Rules did not refer to the recall of an interim interdict and the clear inference was that the decision to recall an interim interdict was not one which could be appealed without leave. The Sheriff Principal concluded that the appeal was incompetent as leave had not been obtained from the Sheriff. The Defender sought, and was granted, leave to appeal to the Court of Session.

Lambert v Clayton [2009] EWCA Civ 237 (20 March 2009)

Fri, 20 Mar 2009 18:43:00 GMT

Motorist’s Split-Second Decision Was Not Negligent

Ian Hamilton QC v The Royal Bank of Scotland Group PLC - Oban Sheriff Court, 26 February 2009

Thu, 19 Mar 2009 21:16:00 GMT

The Pursuer raised a small claim action against the Defenders based on the Defenders’ alleged negligence. The Pursuer claimed payment of a sum he had invested in shares in the Defenders following a rights issue. The Defenders lodged an incidental application for a direction to have the action treated as an ordinary cause under sections 37(2)(b) and 37(2B) of the Sheriff Courts (Sc) Act 1971. In terms of section 37(2B), the Sheriff had to decide whether the case involved difficult questions of law or questions of fact of exceptional complexity. If it did, the Sheriff then had discretion to decide whether the case should be remitted. The Sheriff referred to this as a two stage process. In contrast, section 37(2)(b) involved a one stage process - if it was decided that the case involved difficult questions of law or a question of fact of exceptional complexity, the case had to be remitted and the Sheriff had no discretion to decide not to do so (Mullan v Anderson 1993 SLT 835). In this case the Sheriff decided that the allegations of negligence involved a number of questions of law, including legal issues about company insolvency, the duties owed to the Pursuer and how the Defenders were alleged to have breached those duties. He was also of the view that factual issues, such as the accounts of the Defenders at various times, the Defenders’ insolvency and the advice given to the Defenders by auditors and others, involved questions of fact of exceptional complexity. In deciding how to exercise his discretion, the Sheriff considered the different characteristics of small claims and ordinary cause procedure. He considered that full written pleadings were necessary in this case and the small claims procedure made no provision for these beyond the statement of claim. It was not possible to have a debate on the legal issues in a small claim at a separate hearing before the proof. The sheriff considered the issue of expense and had to determine whether the legal difficulty or factual complexity of the case merited the additional expense of the ordinary cause procedure. In this case he thought that it did. The small claims procedure was intended to deal with claims of low value that did not involve difficult legal issues or complex facts. It was never intended to deal with a case like this. In terms of section 37(2)(b), the Sheriff had to consider the importance of the case, both to the parties and generally, and he thought that this case was of considerable importance to the public. The Sheriff granted the Defenders’ incidental application.

David Pearce v. Steven Ferguson and Another [2009] CSOH 39

Wed, 18 Mar 2009 14:53:00 GMT

Procedure Roll:- On 6 March 2009 the judge here issued an oral decision following a debate on the pursuer's pleadings. At the behest of the first defenders a written opinion was issued. The debate only proceeded in relation to the first preliminary plea of the first defenders. The case was raised under Chapter 43 procedure and was subsequently remitted to the ordinary roll. It was submitted on behalf of the first defenders that the pursuer's pleadings were irrelevant and the case must fail at proof. It was submitted that there were no averments which would enable the pursuer to establish a case of fault on the part of the first defender as the case involved motor racing, and the inherent dangers attached, all of which the pursuer did voluntarily. Here the court considered whether the pursuer's case would necessarily fail in determining the issue at debate, in particular, whether it could be properly inferred from the pursuer's pleadings that the risks and dangers described by counsel for the first defender were part of the facts and circumstances accepted or averred by the pursuer.

Ofulue v.Bossert, HL, (11 March 2009)

Wed, 11 Mar 2009 10:58:00 GMT

Without Prejudice Correspondence Not Admissible in Subsequent Proceedings Unless Wholly Unconnected

Peters v East Midlands Strategic Health Authority & Ors [2009] EWCA Civ 145 (03 March 2009)

Tue, 03 Mar 2009 18:38:00 GMT

Claimant Entitled to Self-Fund Care Rather Than Public Authority

Stanton v. Collinson, QBD, (2 March 2009)

Mon, 02 Mar 2009 18:41:00 GMT

25% Deduction Still Appropriate in Cases Where Claimant Fails to Wear a Seat-Belt

Ashton v Skews – Paisley Sheriff Court, 19 January 2009

Thu, 19 Feb 2009 17:31:00 GMT

The Pursuer/Appellant appealed against an award of solatium of £1,500 for neck and back injuries. It was argued that the Sheriff’s assessment of solatium had not been based on careful analysis of all the relevant facts on the basis that his Note referred to the Pursuer's injuries having resolved fully within 6 months, whereas his findings in fact stated that the Pursuer's injuries had resolved fully within 9 months. The Pursuer argued that an appropriate award for solatium based on the facts would be in excess of £2,500. The Pursuer referred to a number of cases in support of this figure. The Defender argued that the Pursuer has not demonstrated that the Sheriff’s award was out of all proportion to the sum that ought to have been awarded. The Sheriff’s award had not been inconsistent with awards made in cases of a similar type, nor was it outwith the appropriate range in the JSB Guidelines. The Sheriff Principal concluded that, in view of the Sheriff’s findings in fact, it could not be said that his assessment of solatium had been carried out strictly in accordance with the facts which had been found to be established. On that basis, he had to give consideration to the sum which ought to have been awarded as solatium. He concluded that solatium could properly be assessed at £2,000 and varied the Sheriff’s interlocutor to that extent.

Mitchell (AP) and another (AP) (Original Respondents and Cross-appellants) v Glasgow City Council (Original Appellants and Cross-respondents) (Scotland), [2009] UKHL 11

Wed, 18 Feb 2009 22:27:00 GMT

In July 2001 Mr Mitchell was violently assaulted by his neighbour Mr Drummond and died from his injuries. Both Mr Mitchell and Mr Drummond were tenants of Glasgow City Council and the latter’s propensity for violence and anti-social behaviour towards, in particular, Mr Mitchell, were well-documented and known to the Council. The final and fatal violence in July followed a meeting on that day between Council officials and Mr Drummond at which the Council officials had informed Mr Drummond that a notice of proceedings to recover possession of his council dwelling would be served on him and that any continuance of his anti-social behaviour could lead to his eviction.

Mr Mitchell’s widow and daughter sought to hold the Council liable in damages for loss, injury and damage as a result of fault and negligence of the Council. The damages claim was based also on the contention that the Council acted unlawfully and in a way incompatible with Mr Mitchell’s Convention right to life.

What is alleged to be a breach of a common law duty of care owed by the Council to Mr Mitchell, is that the Council neither warned Mr Mitchell that the meeting was about to be held nor, following the meeting, warned him that it had been held, thereby denying Mr Mitchell the opportunity, forewarned, of taking precautions to safeguard himself from the possibly violent reactions of Mr Drummond.

The House of Lords unanimously allowed the Council’s appeal on the duty of care issue. The Council’s obligation to Mr Mitchell was to act as a responsible landlord and to take steps to terminate Mr Drummond’s tenancy in order to remove him from the locality where he was causing trouble. That obligation did not suffice to justify treating the Council as having assumed responsibility for Mr Mitchell’s safety. The Council did not have any delictual duty to protect Mr Mitchell against assaults from Mr Drummond that the Council’s steps might possibly provoke. The attempt to found an action upon the Council’s failure to warn was an attempt to found an action upon a mere omission.

With regard to the cross-appeal the House of Lords held that there was no basis in the pursuers’ averments for saying that the defenders ought to have known that, when Mr Drummond left the meeting, there was a real and immediate risk to the deceased’s life. Accordingly, the House unanimously dismissed the cross-appeal.

Anglo Irish Bank Corporation Plc v West Lb Ag [2009] EWHC 207 (Comm) (13 February 2009)

Fri, 13 Feb 2009 00:00:00 GMT

Strength of Claim Did Not Weigh Into Decision on Pre-Action Disclosure

Blair J. held that although there would be cases where the Court would conclude that there was no claim at all, let alone a claim with reasonable prospects of success, the present case was significantly complex that there were good reasons for the Court to avoid being drawn into expressing views about the merits of the claim, even to the extent of saying that it was a weak claim. At the pre-action stage the parties may not have thought through or seen all of the implications of the issues. Nevertheless, the Application failed because the requirements in CPR 31.16 had not been met.

Phillips and Glasgow v First Glasgow (No. 1) Ltd – Glasgow Sheriff Court, 1 March 2008

Thu, 12 Feb 2009 20:32:00 GMT

The Pursuers sustained injuries when the driver of the bus on which they had been travelling braked suddenly. They raised an action for damages against the bus driver’s employers. Quantum was agreed but liability was disputed. At proof, the driver’s evidence was that a dog had run in front of the bus. This was confirmed by an independent witness. The driver stated that he had been aware that, if he braked suddenly, he would create a risk that passengers might be injured. He had also been concerned that a child might run out after the dog. He had braked, but not fully. The Pursuers argued that it had been established that there had been severe braking, which had caused injury, and on that basis the driver had been in breach of his duty of care. The onus was then on the Defenders to prove that the driver had acted reasonably. The Defenders accepted that a prima facie case of negligence had been made out, but submitted that they had discharged the burden on them by explaining the reason for the braking, which could be described as reasonable in the circumstances. The Sheriff suggested that the approach of the Scottish Courts might be said to be based on a presumption that sudden braking is prima facie negligent and that the driver must provide a reason and displace that presumption. In this case, the Defenders had discharged the onus on them. There was no basis on which the driver’s evidence could not be accepted as truthful and essentially reliable. He had thought about his passengers and their safety when deciding how to react. His evidence demonstrated that he had in mind his various and competing duties when deciding to brake and that he had not been negligent. The duties imposed on the driver were to take reasonable care for the safety of his passengers and to act with due consideration for other road users. He did not have a duty never to brake suddenly. If an emergency arose, he had a duty to take reasonable care to take into consideration the safety of his passengers when deciding how to react. He had discharged those duties and had not been negligent. On that basis the Defenders were not liable and Decree of Absolvitur was granted.

Jonathan Yearworth & Ors v North Bristol NHS Trust [2009] EWCA Civ 37 (04 February 2009)

Wed, 04 Feb 2009 00:00:00 GMT

Sperm Amounts to Property Owned by its Producer:
The Court of Appeal held that there was no authority, either domestic, Commonwealth or American, for the proposition that damage to a substance removed from a person’s body could constitute personal injury after its removal. It was, however, clear for the purposes of claims in negligence that sperm banked at a licensed fertility unit amounted to property that was owned by its producer. It could, therefore, be said that in addition to any personal injury claim, the claimant had a distinct action against the defendant in the law of bailment. The defendant had acquired exclusive possession of the sperm and had held itself out as having special skills for preserving it. As breach of bailment was closely akin to breach of contract, damages would be recoverable under the rules relating to damages for mental distress in contracts aimed at non-pecuniary benefits.

Rodney McLellan v. Dundee City Council [2009] CSOH 9

Tue, 03 Feb 2009 16:22:00 GMT

Proof:- The pursuer was employed by the defenders as a waste management workerbefore in April 2005 they employed him as a driver of a triple mower cutting large areas of grass on their housing estates in Dundee. The defenders sent the pursuer on a training course in the operation of triple mowers. Having completed that training the pursuer worked as a driver of a triple mower and on 20 May 2005 suffered an injury to his right hand when he attempted to clear a blockage in the central cutter of the mower. It is that accident which gave rise to this action where the pursuer sought damages for personal injuries which he suffered in the course of his employment with the defenders. Parties agreed the quantification of the pursuer's claim for damages and the only issue was whether the defenders were liable for the injury which the pursuer sustained. The pursuer based his claim under regulations 8(1) and 9(1) of the Provision and Use of Work Equipment Regulations 1998 and regulation 3(1) of the Management of Health and Safety at Work Regulations 1999 and at common law. Here the court considered whether the defenders were in breach of their common law duty of care to the pursuer and whether there was a causal link between the defenders' breaches of statutory duty and the pursuer's loss and if so, to what extent, if any, the pursuer was guilty of contributory negligence.

Donna Egan v Central Manchester and Manchester Children’s University Hospitals NHS Trust [2008] EWCA Civ 1424

Wed, 28 Jan 2009 19:40:00 GMT

The case involved a workplace accident. The pursuer, a nurse working at the Manchester Royal Infirmary, was transferring a patient by use of a mechanical hoist. The hoist suddenly stopped and she suffered a jerking injury to her back.

Kennedy, R (on the application of) v The Health and Safety Executive [2009] EWCA Civ 25 (28 January 2009)

Wed, 28 Jan 2009 00:00:00 GMT

The Court of Appeal held that the requirement in the Health and Safety Executive’s policy on granting exemptions from health and safety legislation, that there should be no reasonably practicable alternative way of complying with the statutory provision, was directed to the position of the applicant seeking the exemption rather than to the world at large. The issue was an objective question of construction; it did not matter what the policy maker intended the policy to mean or what the decision maker under the policy could reasonably interpret it to mean. The test, therefore, is whether there were reasonably practicable alternatives available to a particular applicant.

Tarn Insurance Services Ltd v Kirby & Ors [2009] EWCA Civ 19 (27 January 2009)

Tue, 27 Jan 2009 00:00:00 GMT

Court Must Consider Whether Unless Order Still Appropriate in all the Circumstances

The Court of Appeal held that, when exercising the power under CPR 3.9 to grant relief from sanctions for failure to comply with an Unless Order, the correct test to be applied was whether the order remained a proper order in the circumstances at the time of the application for relief. The trial judge had misdirected himself in considering whether the Respondent had a reasonable prospect of success; the judge who made the Order must have considered that the claim had reasonable prospects or he would have ordered Summary Judgment rather than an Unless Order. Accordingly, when considering whether to grant relief from sanctions, the judge was required to assume that the possibility that the Order would deprive the Respondent of the opportunity to advance a defence with reasonable prospects of success had already been taken into account.

Smith v. Finch, QBD, 22/1/09

Thu, 22 Jan 2009 00:00:00 GMT

Griffith Williams J. held that, although there was no legal compulsion for cyclists to wear helmets, there was no doubt that a failure to wear a helmet might expose a cyclist to a greater risk of injury; the situation was directly analogous to the failure of a car-user to wear a seat-belt. However, on the facts of the present case there was no finding of contributory negligence as there was no medical evidence that the claimant ‘s injuries would have been reduced or prevented by wearing a helmet.

Ammah v Kuehne+Nagal Logistics Ltd [2009] EWCA Civ 11 (22 January 2009)

Thu, 22 Jan 2009 00:00:00 GMT

Employee had been Provided with Adequate Warning About Danger of Standing on Box:
The Court of Appeal held that the Respondent employer had provided the Appellant employee with adequate instruction and warning about the risk of standing on an upturned box in order to reach an item from a high shelf. The Court said that although some dangers were so obvious that no instruction was required, that could not be said to be so in the present case. Nor had the trial judge been right to allow the Respondent to rely upon a general warning not to use any equipment for anything other than its intended use. However, the clear overall effect of the Respondent’s evidence suggested that adequate warning or instruction was given. The Appellant had been provided with an alternative method and alternative equipment with which to carry out the task safely.

Cain v Francis [2008] EWCA Civ 1451 (18 December 2008)

Thu, 18 Dec 2008 00:00:00 GMT

Loss of Limitation Defence Not a Head of Prejudice under Section 33 of the Limitation Act.

The Court of Appeal held that the loss of a limitation defence was not to be regarded as a head of prejudice to the Defendant when the Court was exercising its discretion to disapply the time limit for the commencement of proceedings under section 33 of the Limitation Act 1980. It was established law that, where a tortfeasor had no substantive defence on liability, the accrual of a limitation defence was a windfall, the loss of which should be considered no prejudice at all. The question of whether it would be equitable, meaning fair and just, to allow an action to proceed was at the heart of section 33. In fairness and justice, a tortfeasor only deserved to have its obligation to pay damages removed if the passage of time had significantly damaged its ability to defend itself.

Egan v Central Manchester & Manchester Children's University Hospitals NHS Trust [2008] EWCA Civ 1424 (15 December 2008)

Mon, 15 Dec 2008 00:00:00 GMT

NHS Trust were in Breach of Manual Handling Regulations

The Court of Appeal held that an NHS Trust was in breach of Regulation 4(1)(b)(ii) of the Manual Handling Operations Regulations 1992 for failing to take reasonably practicable steps to reduce the risk of injury to a nurse whilst engaged in transferring a patient into a bath using a mobile hoist. It was held that Regulation 4(1)(b)(ii) is separate and additional to the requirement to carry out a risk assessment. In the present case, the judge had erred by finding that a risk assessment would have made no difference rather than considering the sub-section separately. Once it was established that the operation contained some risk of injury, the legal burden should then pass to the Defendant to plead that it had taken such steps as were sufficient in all the circumstances. If the Defendant pleaded that no such steps existed, the evidential (but not legal) burden would pass to the Claimant to make suggestions.

Aileen Gilmour -v- East Renfrewshire Council 5th December 2003

Thu, 11 Dec 2008 16:19:00 GMT

This case provided one of the first decisions interpreting the Workplace (Health, Safety & Welfare) Regulations 1992. It held that the individual regulations are not mutually exclusive and should be looked at in conjunction with one another. In doing so the court adopted a purposeful interpretation of the regulations, in accordance with the spirit of the EC Workplace Directive (89/654/EEC).

Ian McCalman Rankin (A.P.) v. John Jack t/a Lochill Equestrian Centre [2008] CSOH 167

Wed, 10 Dec 2008 07:33:00 GMT

Proof:- On 27 September 2005 the pursuer, an employee of the defender, sustained serious injuries when he fell under and was run over by the wheels of a tractor. In this action the pursuer sought damages from the defenders in respect of that accident. The circumstances of the accident were that the pursuer was transporting the last load of the day and opened a gate, drove through it and stopped the tractor and trailer half on the verge on a slightly downhill slope. The pursuer left the tractor to close the gate and the tractor and trailer began to move down the slope. In an attempt to gain control of the vehicle the pursuer fell under the wheels of the tractor and trailer and suffered serious injuries. It was submitted on behalf of the pursuer that that the accident happened because the trailer was overloaded and thus the parking brake on the tractor was overcome. Further, it was the fault of the defender who was responsible for the load on the trailer as the load was so excessive that it should have been obvious that the pursuer was being asked to undertake a risky journey. On behalf of the defender it was submitted that the trailer was not overloaded and the accident was caused by the pursuer's failure to apply the parking brake when he stopped the tractor on the verge. Here the court considered whether the pursuer had made out his case on a balance of probabilities in light of the evidence led.

Thompstone v. Tameside Hospital NHS Foundation Trust, QBD, 2/12/08

Tue, 02 Dec 2008 00:00:00 GMT

Court Set Out Model Periodical Payments Order:

The Court of Appeal had considered periodical payment orders in the three instant cases and found that it was appropriate to link them to the ASHE 6115 index rather than to the retail price index. The claimants thus sought approval of model periodical payments orders designed to give effect to that judgment in the instant cases, and to be incorporated in orders awaiting approval in current and prospective cases. The draft orders sought to anticipate reclassification and revision of ASHE 6115. Sir Christopher Holland held that although the model schedules did no more than offer practitioners a precedent for adaptation to meet the particular nature of an award of damages, the terms reflected the best current expertise and a departure from then in a future order would have to be justified.

Durham v. (BAI Run Off) Ltd, QBD, 21/11/08

Fri, 21 Nov 2008 00:00:00 GMT

Date of Exposure Relevant for Mesothelioma Insurance Claims: Burton J. held that an employer’s liability insurer that provided insurance in respect of “injury sustained or disease contracted” had to pay out in a mesothelioma case if it was the insurer at the date the employee was exposed to asbestos rather than at the date he developed the tumour as the insurers has alleged. Although there was no injury or disease at the date of the inhalation of the asbestos fibres, they had been sustained or contracted in the sense that they were caused at that time. The construction of “sustained” or “contracted” as meaning “caused” was consistent with the factual matrix, the purpose of the insurance and the policy considerations underpinning the relevant legislation.

Russell v Jenkins – Glasgow Sheriff Court – 11 November 2008

Wed, 19 Nov 2008 22:03:00 GMT

The Pursuer (aged 24 at Proof) claimed damages following a road traffic accident in which his car was struck by the Defender’s car. The Defender admitted liability but quantum was disputed. A Proof took place at which the Pursuer was the only witness. The parties had entered into a Joint Minute of admissions in which it was agreed that a consultant orthopaedic surgeon’s reports contained a true and accurate account of the nature and effect of the Pursuer’s injuries. As a result of the accident the Pursuer sustained a soft tissue injury to his knee. The pain from this injury began to improve after 2 weeks and settled fully within a month. He suffered considerable pain in his lumbar spine for about 2 weeks and he continued to suffer pain, although this settled within 6 months. He attended a physiotherapist because of his knee and back injuries. He had small facial cuts and pain in his right shoulder for 3-4 days. The Pursuer was an active member of a rowing club and trained regularly. As a result of his injuries, he was unable to take part in a number of rowing events and could not return to full time training until nearly a year after the accident. After the Proof, the Sheriff indicated that he had accepted the Pursuer as a credible and reliable witness and, although he would have proceeded on the basis of the Pursuer’s unchallenged evidence, it was in part at variance with the terms of the Joint Minute and, as a matter of law, he had to proceed on the basis of what had agreed in the Joint Minute. The Pursuer submitted that damages of £3,750 should be awarded, including the cost of replacing a pair of glasses. The Defender argued that solatium should be valued at £1,800 and accepted that the Pursuer was entitled to recover the cost of the broken glasses. The Sheriff considered a number of authorities referred to by the parties and concluded that solatium should be assessed at £3,000, all attributable to the past. The Pursuer was also entitled to the cost of replacing his glasses.

Lee MacFarlan Nicoll v. Guild Homes (Tayside) Limited [2008] CSOH 156

Tue, 18 Nov 2008 08:37:00 GMT

Proof:- On 4 June 2001 the pursuer was involved in a road traffic accident when a tractor towing a trailer being driven by an employee of the defenders, in the course of his employment with them, passed the pursuer on the other side of the road. As it did so, the trailer became detached from the tractor and swung into the pursuer's path, colliding directly with his vehicle. The pursuer received a number of injuries. In this action the pursuer sought damages for the personal injuries sustained in the accident. Liability was admitted and no question of contributory negligence arose. The only issue at proof was restricted to the issue of quantum, with the level of solatium for the pursuer's injuries and his future employment prospects being the main areas of contention.

XXX v. A Strategic Health Authority, QBD, 14/11/08

Fri, 14 Nov 2008 00:00:00 GMT

Court Assessed Damages in Cerebral Palsy Case: The main focus of the decision was on the claimant’s claim for care: he submitted that he was entitled to the cost of two carers providing high quality care, along with the associated costs of employing them. The Court held that although he would not need two carers all of the time, it was reasonable for him to have them because it required two people to move him, except for eight hours during the night. It was reasonable that there should be a team leader who would require a higher hourly rate. Sums were allowed for the costs of advertising for carers and the additional costs of training up new carers.

Sarah Smith v. Lorna McNair [2008] CSOH 154

Tue, 11 Nov 2008 13:35:00 GMT

Proof:- On 20 January 2003 the pursuer, a teacher, was driving her motor car northwards on the A77, as she made her way to work, when she was involved in a serious road traffic accident. A lorry came out of a lay-by and the pursuer moved into the offside lane to avoid it, braked, and as she did so a car coming at speed from her rear ran into her. There was a claim for her physical injuries and anxiety disorder which she received treatment for in hospital. By November 2004 she was found to be suffering from Parkinson's Disease. It was claimed by the pursuer that the accident brought forward the development and diagnosis by a period of up to seven years On behalf of the defender it was submitted that the accident did not bring forward the development of Parkinson's Disease. It was accepted that the physical injuries she sustained in the accident were minor and for these a relatively small amount of damages would be made. If, however, Parkinson's disease was caused or triggered by the accident a significantly greater award of damages would be justified. Liability was admitted and the real issue was whether it had been established that there was a link between any head trauma and the onset of the condition.

Sanderson v Hull [2008] EWCA Civ 1211 (05 November 2008)

Wed, 05 Nov 2008 00:00:00 GMT

Case did not Fall within Fairchild Exception: The Court of Appeal overturned the trial judge’s decision that causation of the Respondent’s injuries sustained by contracting a bacterium whilst plucking turkeys fell within the Fairchild exception. It was said that the conditions which applied in Fairchild to a mesothelioma case may well apply in respect of other diseases and circumstances. However, great caution was required before any development of the exception to the “but for” test of causation should be allowed. For the exception to apply it was essential for the Claimant to establish that it was impossible to satisfy the “but for” test rather that merely difficult. In the present case, if the Recorder below had made the necessary findings of fact then he could have decided the case on the usual “but for” basis.

Emma McCord v William Thomson, Edinburgh Sheriff Court – 16 October 2008

Thu, 23 Oct 2008 14:31:00 GMT

The Pursuer (aged 36 at Proof) was injured in March 2007 when the Defender’s car collided with the bus on which she was travelling. The Defender admitted liability but quantum was disputed and a Summary Cause Proof took place, at which the only witness was the Pursuer. The terms of an expert medical report were agreed. As a result of the collision, the Pursuer sustained soft tissue injuries to her lower back, left wrist, forearm and elbow, as well as to her left ankle. She also developed mild tendonitis in her ankle. She attended her GP the day after the accident and he advised rest and pain killers. The injuries to the Pursuer’s wrist, forearm and elbow resulted in bruising and swelling, but the discomfort resolved after 4 days. The Pursuer had lower back pain for about 10 days but the symptoms then settled, although they did not resolve fully until about 8 months after the accident. During that time, she continued to experience discomfort about 3-4 days a week, particularly when sitting or standing. The Pursuer’s left ankle was swollen and bruised. The injury was slow to resolve and the Pursuer continued to experience pain and discomfort almost daily for about 6 months. The symptoms then improved, although were aggravated by driving. The Consultant who examined the Pursuer concluded that the symptoms should clear up by October 2008 and there should be no long term consequences. The Pursuer did not take any time off work following the accident. She had to alter her exercise routine. The Pursuer did not consult her GP further, although she was examined twice by a Consultant. The Pursuer sought an award of £4,500 for solatium comprising £1,500 for her back injury and £3,000 for her ankle injury. Several cases were referred to in support of this valuation, as well as the JSB Guidelines. The Defender argued that solatium was worth £2,400 on the basis that the injuries had had little effect on the Pursuer’s lifestyle and she had not required to take time off work or visit her GP for treatment. The Sheriff awarded damages for solatium of £3,400 together with interest at 4% from the date of the accident until the Proof and 8% thereafter. He did not accept that the Pursuer’s injuries had had little effect on her lifestyle. The fact that she had not returned to see her GP did not alter the fact that she continued to suffer pain and discomfort in her back and ankle. The Pursuer deserved credit for following her doctor’s advice and for continuing to work despite being in pain. A number of cases were considered, although several involved whiplash injuries and the Sheriff did not find these of great help. He was not persuaded by the Defender’s submission to consider the Pursuer’s two major injuries separately. He looked at the Pursuer’s injuries as a whole and took into account the pain and loss suffered and the lengthy period involved before a complete recovery was made.

Environment Agency v Ellis (Rev 1) [2008] EWCA Civ 1117 (17 October 2008)

Fri, 17 Oct 2008 00:00:00 GMT

Second Accident Should not Have Led to a Reduction in Claimant’s Damages: The Court of Appeal overturned the trial judge’s finding that the Appellant’s damages in an accident at work should be reduced by 10% to take into account the fact that his injuries were contributed to by a second, non-negligent accident. It was held that a claimant who satisfied the ‘but for’ test of causation does not have to go on and prove that the defendant’s negligence was the only, the single or even the last cause of his injuries. The second accident had not been a full blown intervening event. Had this been so, the causative potency of the index accident would have ceased to have had any effect and the Claimant would have been able to recover no damages at all from that point.

TRACEY ORMSBY v THE CHIEF CONSTABLE OF STRATHCLYDE POLICE [2008] CSOH 143

Thu, 16 Oct 2008 11:43:00 GMT

Action for damages for personal injuries. The pursuer was one of a team of police officers who were instructed to aid the enforcement of an eviction order at a local swimming pool. The swimming pool centre had been closed and the decision had invited much protest. In particular, the pool provided weekly sessions for asian women in the community and alternative facilities did not provide this opportunity. Police officers formed a chain around the entrance to the building so that contracters were able to erect boarding and carry out the eviction. The policy of the senior officer was not to arrest, so that matters would remain peaceful. The situation escalated to a violent protest where missles were thrown and an obvious risk to safety existed. No riot police were availbale and the police team present were not trained in using shields. The pursuer was injured by a pineapple which had been thrown at her. Disputed, whether the senior officer had been negligent. Whether and to what extent injuries were suffered by the pursuer. Whether the pursuer was credible witnes with respect to her claim for PTSD. Held, defenders negligent and pursuer awarded compensation for physical injuries only.

MICHAEL DUFFY v ENTERPRISE ENGINEERING SERVICES LIMITED [2008] CSOH 141

Thu, 09 Oct 2008 13:07:00 GMT

Outer House, Court of Session-Reparation-Personal Injury-Action of damages arising out of an accident at a barge in Norway. The pursuer was working as a pipe fitter. He required to negotiate a step over an exposed area of floor. there was piping under the floor. in the circumstances, the pursuer chose to step onto the piping to move to the other side of the room. In doing so he slipped and broke his ankle. Defenders admitted they owed a duty to the pursuer, despite suggestion that he was self-employed. Dispute focused on issues such as prior complaints, requests for the provision of a "hop-up" or a scaffolding bridge, and the feasibility and practicability of a pipe-fitter stepping over the 8 inch cunifer pipe. Defenders held 75% liable. Expenses agreed by joint minute.

George v The Home Office [2008] EWCA Civ 1068 (08 October 2008)

Wed, 08 Oct 2008 00:00:00 GMT

Long-Standing Drug Addiction Does Not Constitute Contributory Negligence: The case concerned a prisoner who sustained a head injury in an accident whilst undergoing a withdrawal seizure. The trial judge found that the Appellant was contributorily negligent because it was his fault that he had become addicted to heroin when he was 16 years old and reduced his damages by 15% accordingly. The Court of Appeal overturned that finding holding that although the Claimant was “at fault” within the meaning of the Law Reform (Contributory Negligence) Act 1945, that fault was not a potent cause of his injury. The addiction was too remote in time, place and circumstance and was not sufficiently connected with the negligence of the prison staff.

Williams v Jervis (Lex Komatsu) [2008] EWHC 2346 (QB) (08 October 2008)

Wed, 08 Oct 2008 00:00:00 GMT

Claimant Sustained Subtle Brain Injury Following Relatively Minor Impact: Roderick Evans J. accepted that the Claimant had sustained impaired cognitive function in a road traffic accident that initially appeared to have been relatively minor. He held that although it was not safely possible to make a firm finding as to how far the Claimant’s vehicle had been shunted forwards by the collision, it was not the distance travelled that was relevant but rather the change in velocity that occurred at the front of the car. The impact was a little off-centre and would have subjected the Claimant to a rotational force. It was held that, once her eccentricities had been stripped away, the Claimant was fundamentally a truthful witness and her account was reliable.

Smith v. East & North Hertfordshire Hospitals, QBD, 1/10/08

Wed, 01 Oct 2008 00:00:00 GMT

PSLA Assessed in Case Where Claimant Sustained Brain Damage Shortly After Birth: Penry-Davey J. assessed damages in a case where the Claimant had sustained permanent brain damage shortly after her birth as a result of the Defendant’s admitted clinical negligence. It was held that the Claimant’s loss of amenity was at the very top end of the scale in terms of her loss of ability, amenity and enjoyment of her life. Although she had no insight into her condition, her life expectancy was very long and her physical limitations would be moderate. She was awarded £210,000 for general damages. As the Court felt that the Claimant’s mother would not have returned to work in any event and had not therefore lost any earnings, an award was made for gratuitous care and assistance, subject to the commonly adopted discount of 25%. It was also held that the Claimant’s mother’s proposal to provide future care for her at home was acceptable.

FBTO Schadeverzekeringen NV –v- Jack Odenbreit Case: C463/06

Wed, 17 Sep 2008 08:34:00 GMT

Preliminary Ruling of the ECJ (Second Chamber) Dated 13th of December 2007

On the 28th of December 2000 Mr Odenbreit, domiciled in Germany, was involved in a road traffic accident in the Netherlands. The negligent driver was insured by FBTO.

Mr Odenbreit brought an action against the insurer before his local court in the place where he was domiciled (Germany). His local court dismissed the action as inadmissible as the court did not consider it had jurisdiction as the RTA had occurred in the Netherlands. This decision was appealed and Mr Odenbreit in his appeal was successful. The insurers, however, then appealed to the Federal Court of Justice in Germany. The Judge of the Federal Court of Justice in Germany decided to sist proceedings in the German Court and refer the matter to the ECJ for a preliminary ruling.

The following question was referred to the ECJ for a preliminary ruling:-

“Is the reference to Article 9 (1) (a) in Article 11 (2) of Regulations number 44/2001 to be understood as meaning that the injured party may bring an action directly against the insurer in the courts for the place in a Member State where the injured party is domiciled, provided that such a direct action is permitted and the insurer is domiciled in a Member State?”

Regulation number 44/2001

Council Regulation (EC) number 44/2001 of 22nd December 2000 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters.

In the preamble to the Regulation it is stated that,” in relation to insurance … contracts …, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules provide for.”

Article 9(1)(a) and (b) of Regulation number 44/2001 provides:-

“1. An insurer domiciled in a Member State may be sued:-

(a) In the Courts of the Member State where he is domiciled, or

(b) In another Member State, in the case of actions brought against the policyholder, the insured, or a beneficiary, in the Courts for the place, where the plaintiff is domiciled …”

Article 11 of that Regulation states:-

“1. In respect of liability insurance, the insurer may also, if the law of the court permits it, be joined in proceedings which the injured party has brought against the insured.”

2. Articles 8, 9 and 10 shall apply to actions brought by the injured party directly against the insurer, where such direct actions are permitted.

3. If the law governing such direct actions provides that the policy holder or the insured may be joined as a party to the action, the same Court shall have jurisdiction over them.”

The ECJ in their determination considered whether Article 9(1)(b) restricted the right to sue in another Member State to the policyholder, insured, or beneficiary of the policy of insurance, or, whether that reference allows the rules of jurisdiction of the Courts for the place where the person is domiciled, set out in article 9(1)(b) to be applied.

When the ECJ interpreted article 11(2) they determined that to restrict the injured party from suing in another Member State would run contrary to the wording of article 11(2).

Therefore the ECJ held that an injured party could raise an action against the insurer in the Member State in which he was domiciled, provided that such a direct action is permitted and the insurer is domiciled in a Member State.

In the UK the permission of a direct action was brought into force by the European Communities (Rights Against Insurers) Regulations 2002 FI 2002/3061.

These Regulations give effect to the 5th Motor Directive. They give the right to the injured party to issue proceedings against the insurer of the person responsible for an accident as well as the driver. These Regulations came into force on the 19th of January 2003.

Governing Laws:-

It will be determined by the National Courts which law applies but the likelihood is that both procedure and quantum will be dealt with by the Law of the Court in which the action is brought, however, the substantive law or liability law will be dealt with by the law where the accident happened.

Summary:-

Odenbreit determines that the injured party has the right to issue proceedings in the Court of his domicile providing that such a direct action is permitted and the insurer is domiciled in the Member State. To be clear currently Odenbreit only applies to RTA’s. However, there is of course a possibility that in time a similar right may exist in relation to other, non RTA cases.

Crofts v. Murton, QBD, 5/9/08

Fri, 05 Sep 2008 00:00:00 GMT

Courts Should Not Apply a Double Discount for Mortality in Shortened Life Cases: For the purposes of calculating damages, the Claimant’s life expectancy was reduced by five years on the basis of the medical evidence. Judge Collender QC held that where a judge had not determined the Claimant’s overall expectation of life, but rather had only decided by how much his pre-morbid statistical life expectancy had been shortened, it was appropriate to use table 1 of the Ogden tables rather than table 28 in order to calculate the appropriate multiplier. The basis of the decision was that the Court had already taken into account the chances of the Claimant dying earlier or living longer than the predicted date and to take mortality further into account would, therefore, amount to a double discount on the basis of mortality.

MacDonald v Bruce – Cupar Sheriff Court, 8 August 2008

Wed, 03 Sep 2008 18:57:00 GMT

The Pursuer, aged 49 at Proof, sought damages following a road accident. Liability was admitted and the Proof was restricted to quantum. The Pursuer suffered a whiplash injury to his neck and was left with intermittent neck pain and headaches. These settled within 7 months of the accident. For 6 weeks he also suffered severe low back pain and right elbow pain. A cut to his head and bruising healed within 2 weeks. For 12 weeks after the accident the Pursuer suffered low moods and travel anxiety with flashbacks.He slept badly for 2 weeks and put on weight. He was absent from work for 10 days and couldn’t drive during that time. The Pursuer had to stop going to the gym and gave up marathon running for 4 to 5 months. He was prescribed pain killers by his GP but was not hospitalised and did not receive physiotherapy. The Pursuer had made a full recovery after 7 months. He sought an award of solatium of £2,750 and referred the Sheriff to a number of cases in support of this. The Defender argued that a more appropriate award would be around £1,600 to £1,700. The Sheriff expressed the view that some of the English authorities cited by the Defender were too low to be in line with the majority of cases in Scotland. In his view, the yard stick was Sheriff Principal Bowen’s persuasive decision in Symington v Milne (Edinburgh Sheriff Court 4 May 2007) in which the Sheriff Principal commented that, while older cases might serve as a guide, awards for whiplash injuries may now be proportionally higher than some years ago due to a greater awareness of the debilitating effect of that type of injury.

Thomas Renfrew v. Lithgows Limited and Others [2008] CSOH 118

Tue, 19 Aug 2008 18:17:00 GMT

Proof:- The pursuer was employed as a painter in the shipyards by the first defenders between 1959 and 1969 and by the second defenders between 1970 and 1973 when he was exposed to asbestos dust causing mesothelioma. In this action the pursuer sought damages for personal injury in respect of the disease. The defenders admitted liability and the only issue was quantum. It is expected that the pursuer will die during 2008. The main question the court had to consider was how long the pursuer would have lived had it not been for him developing mesothelioma. This was complicated by the pursuer suffering from an unconnected vascular disease. It was the pursuer's position that the vascular condition would not have affected his lfe expectancy whereas the defenders submitted that the condition would have. Here the court considered what the pursuer's life expectancy would have been had it not been for him developing mesothelioma.

Michael Cunningham v. Glasgow City Council [2008] CSOH 113

Thu, 14 Aug 2008 08:17:00 GMT

Personal Injury:- In this action the pursuer, a principal teacher in Glasgow, raised an action against his employers for (1) loss, injury and damage caused by the defenders' failure to take reasonable care for his health and safety; and (2) breaches by named employees of Section 8 of the Protection from Harassment Act 1997 for which the defenders were vicariously liable. Here the defenders enrolled a motion to remit the cause from Chapter 43 procedure to allow the action to proceed as an ordinary action in respect that there were exceptional reasons justifying withdrawal of the cause from Chapter 43 rules. It was submited on behalf of the defenders that:- (1) the action was not properly to be regarded as a personal injuries action falling under Chapter 43 procedure; and (2) that the test for withdrawal was "exceptional reasons" and such a test had been satisfied in the present case on the grounds that lengthy written pleadings will be necessary and issues of both liability and causation were complex. It was submitted on behalf of the pursuer that there were no exceptional reasons to justify the withdrawal of the case from Chapter 43 procedure. Here the court considered whether such "exceptional reasons" existed.

Perry & Anor v Harris (A Minor) [2008] EWCA Civ 907 (31 July 2008)

Thu, 31 Jul 2008 00:00:00 GMT

Parents Not Liable for Accident on Bouncy Castle: In a case that had been given a great deal of media attention at first instance, the Court of Appeal overruled the decision of the Queens Bench Division that parents were responsible for injuries sustained when a larger boy collided with a smaller boy on a bouncy castle whilst both children were unsupervised. The Court stated that it was impossible to preclude all risk when children were playing together. The standard of care required was that which a reasonable parent would have shown for their own children. Although a reasonable parent would have remained in the vicinity of the castle in order to intervene if the children’s play got too boisterous, it was too high a standard to impose a duty of constant, uninterrupted supervision.

Monk v. PC Harrington Ltd, QBD, 31/7/08

Thu, 31 Jul 2008 00:00:00 GMT

Man who Assisted at Accident Scene not a Primary Victim: G Leggatt QC held that the Claimant who had provided assistance to victims of a construction accident was not a primary victim. Although the Claimant had provided significant help to the injured men that was neither peripheral or trivial, and could therefore be regarded per se as a rescuer, the evidence showed that it was improbable that he had believed that in rushing to the scene he was putting his own physical safety at risk. Nor could he show that he was an unwilling participant as there was no reasonable basis for a genuine belief that he might have caused the accident. Accordingly, it could not be said that it was reasonably foreseeable that a person in his position would have suffered psychiatric injury and therefore he was precluded from recovering damages in respect of those injuries.

Thomas Ruddy v. Monte Marco and Others [2008] CSIH 47

Wed, 30 Jul 2008 10:42:00 GMT

Reclaiming motion:- On 7 March 2008 the Lord Ordinary granted decree against the first defender for payment of a sum of damages to the pursuer following proof in respect of a claim for personal injuries. The second defenders were assoilzied. It is against that interlocutor the first defender reclaimed. The question raised by the first defender here was whether the attribution by the Lord Ordinary of personal liability to the first defender as being the employer of the pursuer in relation to the work in question was correct. It was submitted on behalf of the first defender that the proper inference to draw from the evidence at proof was that the pursuer's contract of employment was with the second defenders and that the first defender was not the individual employer with individual responsibility for the premises. It was submitted on behalf of the respondent that the Lord Ordinary was entitled to come to the conclusion which he reached. Here the court considered whether the Lord Ordinary, having heard the evidence, in particular the first defender's evidence, reached the correct decision.

Hertfordshire Police v Van Colle [2008] UKHL 50 (30 July 2008)

Wed, 30 Jul 2008 00:00:00 GMT

Police do not Owe Common Law Duty to Individuals: The House of Lords held, overruling the Court of Appeal with Lord Bingham dissenting, that in order for a claimant to establish that the police were under a duty to protect a witness who had been threatened, the court must be satisfied that the relevant authorities knew or ought to have known “at the time” of the existence of “a real and immediate risk to the life” of an identified individual from the criminal acts of a third party. Although there may be cases where the absence of a remedy to the claimant would be an affront to public policy, in ordinary circumstances the principle established by the House in Hill v. Chief Constable of West Yorkshire (1989) should be preserved.

Bransgrove v. Vermorel, CC, 25/7/08

Fri, 25 Jul 2008 00:00:00 GMT

Credit Hire Rates Evidence need not be Contemporaneous: HHJ Dedman in the Southend County Court comprehensively rejected the argument often raised by claimants in credit hire cases that the Defendant’s rates evidence is insufficient because it does not go as far as to establish that a particular car must have been available on the day of the accident. He was of the opinion that such a proposal was ridiculous and said that it was necessary to bear in mind that cases are not tried by computers or automatons and that the Court must do its best on the evidence placed before it.

Spencer-Franks (Appellant) v Kellogg Brown and Root Limited and others (Respondents) (Scotland), [2008] UKHL 46

Wed, 02 Jul 2008 12:36:00 GMT

In 2003, the pursuer was employed as a mechanical technician by Kellogg Brown and Root Ltd (“KBR”), then a subsidiary of Halliburton which supplies services to the offshore oil industry. KBR contracted to supply workers to operate the Tartan Alpha platform in the Scottish sector of the North Sea, which was operated by Talisman Energy (UK) Ltd (“Talisman”). The pursuer was one of the workers which KBR supplied to work on the platform.

In October 2003, the closer on the door of the central control room was not working properly and the appellant was asked to inspect and repair it. In the course of removing the closer to take it away for repair, the appellant half turned a screw which held the linkage arm to the door frame. This should not have disengaged the screw. However, the screw pulled out and the arm struck the pursuer in the face. He lost four teeth which had to be replaced by implants.

The pursuer raised an action against KBR and Talisman in the sheriff court claiming that each of them had been in breach of its obligations under the Provision and Use of Work Equipment Regulations 1998 (“the equipment regulations”).

The pursuer submitted that the incident was covered by the equipment regulations as the door closer was a piece of machinery or apparatus for use at work. The defenders took pleas to the relevancy on the ground that the door closer could not be work equipment within the meaning of the regulations.

The sheriff sustained the plea of KBR, the employer, on the ground that although the door closer was “work equipment", the employer had no control over it and the regulations therefore did not impose responsibility upon it. On the other hand, Talisman, the operator, did have control. He therefore repelled their plea to the relevancy and allowed the pursuer’s proof.

Both the pursuer and Talisman appealed. The Second Division of the Court of Session, took the view that the door closer was not “work equipment” or, even if it was, that the pursuer was not “using” it within the meaning of the regulations. They therefore dismissed the pursuer’s appeal and allowed KBR’s appeal.

The pursuer appealed to the House of Lords.

The House of Lords held (unanimously) that the door closer was work equipment and that the appellant was using the door closer when he was injured. The work equipment regulations used the words “for use at work.” The door in question was used to enter and exit the control room and everyone using the control room was using it for the purposes of their work. Consequently, the closer attached to that door was work equipment. The door closer did not cease to be work equipment because it had broken down or was being repaired.

The House of Lords went on to hold that it could not be excluded by some implied qualification. For example, it rejected the argument that the equipment regulations impliedly excluded apparatus which formed part of the premises upon which the work took place. The House of Lords noted that this might have been a good argument for ordinary work premises on land but not for equipment which was attached to an offshore platform. Reference was made to Regulation 5(1) of the Offshore Installations (Operational Safety, Health and Welfare) Regulations 1976.

The House of Lords allowed the appeal, recalled the interlocutors of the Court of Session and the Sheriff and allowed the parties a proof.

Lough v The Intruder Detention & Surveillance Fire & Security Ltd & Anor [2008] EWCA Civ 1009 (26 June 2008)

Thu, 26 Jun 2008 00:00:00 GMT

Other Party’s Liability DidNot Affect Occupiers’ Duty of Care:The Court of Appeal held that the fact that another party might be liable for injuries to a visitor to a premises did not preclude an occupier from being held liable under section 2 of the Occupies Liability Act 1957. On the instant case, no amount of supervision of the contractor by his employer could have prevented him from taking the false step which led to him falling off a landing in the occupier’s premises where he was working. In the circumstances, although the employer should still bear the lion’s share of the blame, it was appropriate for the occupier to be ordered to make a contribution of 25%.

Matthew Oliver v UK Insurance Limited – Aberdeen Sheriff Court, 14 May 2008

Wed, 25 Jun 2008 19:24:00 GMT

The Pursuer sought damages for injuries he sustained in a road accident. The Defenders admitted that their Insured was responsible for the accident but disputed the value of the Pursuer’s claim and a Proof on quantum took place. The Pursuer suffered soft tissue injuries to both shoulders, strains of the cervical spine and the thoracic spine, mild burns to his right hand, headaches and dizziness, parasthesia of both hands and short term shock. His back pain settled after a few weeks, but he continued suffering from neck and shoulder pain for about 6 months after the accident. His headaches lasted for a week or two, although the dizziness disappeared within days. The parasthesia in his hands settled after a few days. The neck and shoulder pain caused the Pursuer discomfort and he had difficulty sleeping. He couldn’t pursue his hobbies of badminton and rock climbing for several weeks. At the time of the Proof, the Pursuer continued to suffer anxiety when driving and he had also suffered flashbacks. The medical evidence was agreed and the Pursuer was the only witness at the Proof. The Pursuer suggested that the value of his claim was £3,000 - £3,500. The Defenders argued that the appropriate sum was around £1,600. The Sheriff awarded the Pursuer £2,500 in relation to his neck, back and shoulder pain. He also awarded £100 for minor burns, £100 for headaches and dizziness, £100 for parasthesia in the hands and £300 for shock, anxiety and flashbacks. The total sum awarded was £3,100, with interest at 4% a year from the date of the accident.

Grandison v East Lothian Council – Haddington Sheriff Court, 28 February 2008

Wed, 25 Jun 2008 17:30:00 GMT

The Pursuer was employed by the Defenders as a slater/builder. He and a colleague were instructed to remove slabs from the garden of a property owned by the Defenders. Part of the operation involved breaking up a concrete block and they did so using a pickaxe and a large hammer. As the Pursuer tried to lift a section of concrete, he felt pain in his back. It was discovered that brick work had become attached to the under side of the concrete. The Defenders had carried out a generic risk assessment in relation to dealing with paths and slab work. Having heard evidence, the Sheriff found that the Pursuer’s back injury was caused by the Defenders’ breach of their obligations under Regulations 4(i)(a) and 4(i)(b) of the Manual Handling Operations Regulations 1992. He held that the Defenders had not done all that was reasonably practicable to avoid the need for the Pursuer and his colleague to undertake a manual handling operation that involved a risk of injury. It was self evident that an operation which required the Pursuer or his colleague to lever up a section of concrete and then to try and break it up using a hammer was going to involve a risk of injury. On that basis, the Defenders had to try and avoid the need for that manual handling operation. The Sheriff held that the use of a pneumatic drill or jack hammer would have been reasonably practicable. The use of a small mechanical digger would also have been reasonably practicable. There was an enhanced risk from the concrete area because of its construction and the prospect of brick being attached to its underside. That risk should have been considered. The Sheriff decided that, even if he was wrong in his approach to Regulation 4(i)(a), the Defenders had separately breached their obligation under 4(i)(b) for largely similar reasoning. The fact that a generic risk assessment had been carried out did not necessarily avoid the need for a more specific review. In his view, there had not been “suitable and sufficient assessment of manual handling operations”.

Gray v Thames Trains Ltd & Anor (Rev 1) [2008] EWCA Civ 713 (25 June 2008)

Wed, 25 Jun 2008 00:00:00 GMT

Claimant’s Claim for Damages not Inextricably Bound Up in Criminal Conduct: The Court of Appeal held that a claimant who suffered severe PTSD in a rail crash, and was subsequently convicted of manslaughter on the ground of diminished responsibility, could recover for loss of earnings both up to and after the date of the manslaughter; he did not fall foul of the maxim of ex turpi causa. In a case where it was not suggested that the cause of action arose out of an illegal act, the question was whether the loss was inextricably linked with the illegal act. The evidential burden was on the defendant to show that the manslaughter constituted a break in the chain of causation. In circumstances where they failed to do so, public policy did not prohibit recovery.

Gravil v Carroll & Anor [2008] EWCA Civ 689 (18 June 2008)

Wed, 18 Jun 2008 00:00:00 GMT

Rugby Club Vicariously Liable for Misconduct of Player: The Appellant, a semi-professional rugby player, successfully appealed against a decision that the Second Respondent rugby club were not vicariously liable for a tortious assault on him by the first respondent, one of their players. Applying the ordinary principles of vicarious liability, the Court of Appeal held that the player’s wrongful act was so closely connected with his employment that it would be fair and just to hold his club vicariously responsible. The incident had occurred in a melee of the type which frequently occurs in rugby matches; the throwing of punches could be said to be an ordinary event in rugby matches. Further, the player’s contract expressly contemplated that the club might be vicariously liable for his acts during his employment.

Trustees of the Portsmouth Youth Activities Committee (A Charity) v Poppleton [2008] EWCA Civ 646 (12 June 2008)

Thu, 12 Jun 2008 00:00:00 GMT

Occupier’s Duty Does Not Extend to Preventing Activity with Inherent Risk of Injury: The Appellant charity successfully appealed against a decision that it was 25% responsible for injuries sustained by the Respondent, an inexperienced climber, when he was rock climbing unsupervised on its indoor climbing wall. The Court of Appeal noted that it was extremely rare for an occupier of land to be under a duty to prevent people from taking risks that were inherent in activities they had freely chosen to undertake. The risk of falling was plainly obvious; no amount of matting would avoid the possibility of sustaining injury from an awkward fall. It would be too onerous a requirement for the law to insist upon training and/or supervision in respect of such commonplace activities.

Elizabeth Nolan v. First Glasgow Limited [2008] CSOH 86

Wed, 11 Jun 2008 13:32:00 GMT

Reparation - Proof:- On 12 April 2005 the pursuer was travelling as a passenger on a single decker bus owned and operated by the defenders through the centre of Glasgow. At around 5.30p.m. a bus, also owned and operated by the defenders, collided with the back of the pursuer's stationary bus. As a result of the collision the pursuer was thrown forward causing injury to her neck, shoulder and right arm. An x-ray disclosed no bone break and she was referred for physiotherapy and advised to consult her general medical practitioner. At the time of the accident, the pursuer was employed full time with the Abbey Bank where she had worked since 1987 and had been full time for twelve years. After the accident, the pursuer did not return to work until 18 April 2006. On her return the pursuer started working reduced hours, initially two and then three days per week. This was then increased to four days before reducing it again to three days, the level at which she presently works. In this action liability was admitted by the defenders and the only issue in dispute was the quantification of damages.

Ann Catherine Hylands v. Glasgow City Council

Thu, 29 May 2008 09:02:00 GMT

Personal Injury:- The pursuer was injured at work when a partition fell and struck her on the back. The pursuer's agents intimated a claim against the defenders and, following an additional intimation, the defenders repudiated liability. The pursuer's agent then asked the defenders to reconsider their position and again liability was repudiated. On 10 January 2008 a summons was signeted. The sum concluded for was £10,000. The summons was served on the defenders on 23 January. On 7 March defences and a tender were lodged; the tender was for payment of £2,500 with expenses to date in full satisfaction of the conclusions of the summons. That tender was accepted. On 18 April the defenders enrolled a motion under Rule 42.5 of the Rules of Court for modification of the pursuer's expenses to the summary cause scale in the sheriff court, without certification for counsel.

Kerry Ramage as Legal Representative of her child Beth Ramage (Assisted Person) v. Scottish African Safari Park Limited [2008] CSOH 68

Tue, 13 May 2008 08:06:00 GMT

Personal Injury - Motion for Issues:- On 28 July 2002 the pursuer took her 19 month old daughter, Beth, to Blair Drummond Safari Park which was owned and occupied by the defenders. The pursuer claimed that during the course of the visit her daughter's arm came into contact with animal faeces, which then came into contact with her mouth, and she was exposed to E coli 0157 and subsequently developed certain medical conditions. Damages were claimed on the basis that there was fault on the part of the defenders at common law and in breach of Regulations 6, 7 and 12 of the Control of Substances Hazardous to Health Regulations 1999. The action was defended on liability and quantum. Here the pursuer sought the allowance of issues to enable the action to proceed to a jury trial. The motion was opposed on behalf of the defenders. It was submitted on behalf of the defenders that special cause existed for refusing the pursuer's motion for the allowance of issues. On behalf of the pursuers it was submitted that the case was one which could be properly decided by a jury as appropriate directions could be given to the jury. Here the court considered the relevancy of the pursuer's case at common law in deciding whether it was a case suitable for jury trial.

Frank William Fletcher as Guardian of Lisa Smart v Christopher Lunan [2008] CSOH 55

Thu, 24 Apr 2008 08:28:00 GMT

Personal Injury: Contravention of Section 2 of the Road Traffic Act 1998: Miss Smart suffered a serious head injury as a result of being hit by a car driven by the defender. Prior to the proof the defenders admitted liability and the parties agreed that the degree of contributory negligence would be assessed at 15%. The defender has made two interim payments to the pursuer, one of £150,000 and one of £100,000. The pursuer now seeks interim damages of an additional £500,000.

William Spence v Chap Construction Limited 25/02/2008

Mon, 21 Apr 2008 18:57:00 GMT

Personal Injury: The matter came before the sheriff as a result of a pursuer's motion to be allowed to amend the Record in terms of a Minute of Amendment. The defenders did not oppose items 1 and 2 of the Minute of Amendment but opposed the rest based on the argument that the new matter was being introduced at a very late stage in the procedure.

Elsie Hampton & Anthony Stephen Hampton v. First Group plc trading as First Bus [2008] CSOH 59

Thu, 10 Apr 2008 11:42:00 GMT

Personal Injury - Proof:- In this action the pursuers sought damages after the first pursuer was knocked down on Princess Street in Edinburgh on 19 October 2003. The pursuers had been out for dinner together on the Sunday evening in question when they crossed Princes Street at its junction with Lothian Road. The first pursuer was hit by a double-decker bus and suffered serious injuries including two skull fractures, a fracture under her left eye-socket, an intracranial haemorrhage, and an elbow injury. The second pursuer, who witnesses the accident from a short distance away suffered as a result. The pursuers sought damages against the driver of the bus's employers and the case proceeded to a conjoined proof on liability only. Here the court considered whether the pursuers had established the negligence of the bus driver to the requisite standard of proof.

Steven Gray v ASA Autohouse GMBH & Co – Edinburgh Sheriff Court, 13 March 2008

Wed, 09 Apr 2008 14:38:00 GMT

Damages - Solatium - Muscle strain in neck and backache - Whether appropriate to value Solatium on basis of whiplash injury

The Pursuer, a mechanical engineer aged 25 at Proof, was injured in a road traffic accident. Liability was admitted but quantum was in dispute. The Pursuer experienced immediate pain in his neck after the collision and was taken to A&E where he was diagnosed with muscle strain and given painkillers. He continued to experience neck pain for about 6 months and also had symptoms of backache. After that, the Pursuer made a full physical recovery. He had to take about a week off work after the accident and was given light duties for 4 or 5 weeks after his return. The Pursuer was unable to play football for about 6 months following the accident. He had to drive past the scene of the accident on his way to work every day and he experienced feelings of apprehension about this. Following a Proof, the Sheriff awarded solatium of £1,650. When addressing the Sheriff on solatuim, the Pursuer’s Solicitor had referred to a number of cases in which the claimants had suffered whiplash injury. The Sheriff did not consider it appropriate to assume that the Pursuer had suffered a whiplash injury and proceeded on the basis that he had suffered a muscle strain associated with symptoms of backache. The expression “whiplash injury” referred to a specific type of injury and the Sheriff had not heard evidence to support that diagnosis. The medical report, the terms of which had been agreed, stated that the Pursuer had been diagnosed with a muscle strain. The Pursuer’s reaction to passing the scene of the accident seemed to the Sheriff to be no more than a normal reaction and the Pursuer had not established a claim for psychological injury.

Patricia Welsh v. Neil Brady [2008] CSOH 45

Thu, 20 Mar 2008 17:05:00 GMT

Personal Injury - Proof:- In the case the pursuer, a consultant orthopaedic surgeon, sought damages for a severe injury to her right knee when she collided with the defender's labrador whilst she was walking her golden retriever in a field near the village of Wellbank on 14 March 2005. In the case damages were agreed at £160,000 and the only issue was limited to the question of whether the defender was liable to the pursuer. It was submitted on behalf of the pursuer that liability was established under the Animals (Scotland) Act 1987 which failing by way of common law negligence on the part of the defender. It was further submitted that the injury suffered by the pursuer was directly referable to the conduct of the animal that was under the control of the defender and the defender was strictly liable for the injury to the pursuer and there was no need to prove negligence, however, it was submitted that the evidence established that the defender had failed to take reasonable care for the safety of the pursuer. It was submitted on behalf of the defender that apart from attacks by dogs, liability for injury caused by dogs rests on common law fault and in the present case the defender did not act carelessly given both dogs were off their leads at the time of the collision and the defender did not act in a negligent manner. Here the court considered whether the failure by the defender to put a lead on his dog when the pursuer came in to view amounted to negligence.

Furniss v Firth Brown Tools Ltd [2008] EWCA Civ 182 (12 March 2008)

Wed, 12 Mar 2008 00:00:00 GMT

Claim for Noise-Induced Deafness not Statute Barred: The Court held that the trial judge had not been entitled to hold that a claim in respect of noise-induced deafness was statute barred pursuant to section 11 of the Limitation Act 1980 as he had not considered the Claimant’s date of knowledge of significant injury, pursuant to section 14 of the Act. Although there was evidence that the Claimant had been aware that he had hearing problems, it was impossible to reach a firm conclusion on the evidence available as to when he would have appreciated that his injury as significant, or should have done with the benefit of expert opinion. The burden of proof, which lay with the Defendant, had not been discharged.

Smith v Northamptonshire County Council [2008] EWCA Civ 181 (11 March 2008)

Tue, 11 Mar 2008 00:00:00 GMT

Local Authority not Strictly Liable under PUWER 1998: The Court held that the Defendant local authority were not strictly liable under Regulation 5(1) of the Provision and Use of Work Equipment Regulations 1998. It said that strict liability could only be imposed by clear language; Parliament would not have intended the local council to be held responsible for a ramp installed outside the Claimant’s home. For a defendant to have a duty to maintain something it must be within its power to do so without having to seek further consent. The absence of any control was a factor that strongly militated against the Defendant being held to be liable under PUWER.

Corr v IBC Vehicles Ltd [2008] UKHL 13 (27 February 2008)

Wed, 27 Feb 2008 00:00:00 GMT

Reporting Restrictions: Loss Attributable to Suicide Recoverable Under Fatal Accidents Act: The House of Lords, upholding the decision of the Court of Appeal, held that the widow of an employee who had committed suicide as a consequence of depression caused by his employer’s negligence could recover under the Fatal Accidents Act 1976. Whilst the Deceased was not insane at the time of his death, it could not be said that he was fully responsible for his own actions. The deceased’s conduct was not an unforeseeable consequence of the tort, nor did it constitute a novus actus. The Deceased was not volenti to the tort itself, only to the suicide, which he did not approach with his eyes open because of his psychological condition.

Welsh Ambulance Services NHS Trust & Anor v Williams (Including: Post Judgment Discussion) [2008] EWCA Civ 81 (15 February 2008)

Fri, 15 Feb 2008 00:00:00 GMT

Financial Benefit Irrelevant when considering Dependency under Fatal Accidents Act: The Court of Appeal found that the trial judge had been correct to rule that the wife and children of a successful businessman should be considered dependants upon his death. The Deceased, his wife and two eldest children were equal partners in a business at the time of his death. It had been found that the Deceased’s drive and flair led to him being described as a “wealth creator”; for this reason it was plain that the wife and all of the children were dependants a the time of his death. The fact that the two elder children took over responsibility for managing the business successfully upon his death was irrelevant to the assessment of dependency; conduct after the death does not fall to be considered under section 3 of the Fatal Accidents Act 1976.

Allison v London Underground Ltd [2008] EWCA Civ 71 (13 February 2008)

Wed, 13 Feb 2008 00:00:00 GMT

Duty under Regulation 9 of PUWER Not Absolute: The Court of Appeal held that the duty imposed by Regulation 9 of the Provision and Use of Work Equipment Regulations 1998 was not absolute and did not impose no-fault liability. Although the wording “to ensure” in Regulation 9 implied a mandatory duty, in the context of the Regulation it did not mean anything more than a duty to provide adequate training in light of what the Respondent had appreciated at the time the training was given; it was not for the Court to consider whether it was in fact sufficient. The appeal was, however, allowed on the second ground that the judge had misapplied the common-law test and failed to consider whether the risk assessment was sufficient and suitable.

Drake v Harbour [2008] EWCA Civ 25 (31 January 2008)

Thu, 31 Jan 2008 00:00:00 GMT

Judge Entitled to Infer Negligence of Electrician Caused Fire: The Respondent appealed the trial judge’s finding that he had been negligent due to an unknown, co-operative cause of a fire on the basis that there were other possible causes that were not consistent with negligence and, therefore, it could not be said that the negligence caused the loss. Dismissing the appeal, the Court found that the trial judge had found that the accident was more likely than not caused by negligence; the Respondent had not been able to establish an alternative cause. The Judge had been entitled to reach his finding on causation even though it had been impossible to point to the precise causative mechanism as he had concluded that other theories put forward were, on balance, improbable. Although the trial judge had relied upon the maxim of res ipsa loqitur, it had not been necessary for him to do so.

A v Hoare [2008] UKHL 6 (30 January 2008)

Wed, 30 Jan 2008 00:00:00 GMT

Correct Approach to Limitation in Sexual Abuse Cases: The Lords allowed the appeals of six appellants who had been victims of sexual abuse during childhood and whose claims had been adjudged to be statute barred. It was held that the test under section 14 of the Limitation Act 1980 was an entirely impersonal one; once it was established what the claimant knew and what they could be treated as having known, the actual claimant effectively dropped out the picture. The decision in Stubbings v. Webb (1993) was departed from; it was observed that unsatisfactory House of Lords decisions are invariably distinguished by lower courts on inadequate grounds.

Montgomery Steven v Direct Line Insurance plc – Edinburgh Sheriff Court, 14 December, 2007

Thu, 17 Jan 2008 20:55:00 GMT

Reparation - Damages - Solatium - Minor Injuries to upper back, neck, chest and shoulder; anxiety when driving

The Pursuer sought damages for injuries he suffered as a result of a road traffic accident in November, 2005. His stationary vehicle was struck from behind by a vehicle for which the Defenders were insurers in terms of the Road Traffic Act 1988. Liability was admitted. At the time of the Proof, the Pursuer was 62 years old. Following the accident, he experienced initial shock and began to develop pain and stiffness in his upper back, neck, chest and shoulder. He also developed bruising on his upper chest, which settled in a week. The discomfort in his chest resolved after 2 weeks. The Pursuer did not have to take any time off work, although he felt discomfort while driving. The Pursuer attended his GP a week after the accident complaining of pain and stiffness in his neck and upper back. He continued to experience this pain for 4-5 weeks after the accident, although his symptoms resolved fully 3 months after the accident. The Pursuer had to take painkillers for about a month after the accident. He was anxious and hyper vigilant when driving, although did not seek any medical treatment or assistance in relation to this. The Pursuer was unable to pursue his hobbies of playing bowls and pheasant shooting for about a month after the accident. The Sheriff awarded the sum of £1,600 as Solatium, all of which was allocated to the past, with interest at half the judicial rate from the date of the accident until four months after that date and, thereafter, at the full judicial rate.

William Lees v North Lanarkshire Council [2008] CSOH 8

Thu, 17 Jan 2008 13:31:00 GMT

Proof – personal injuries – liability only disputed-inferences drawn from pleadings. Case involved an incident where pursuer fell on footpath, the maintenance for which defenders responsible. Disputed whether defect was hazard to safety; if so, should it have been identified/repaired by defenders’ system of inspection; whether any contributory negligence. It was considered whether the knowledge of the street and its poor condition increased the duty on the pursuer to take care for his own safety. Defenders found liable with 40% contribution by pursuer.

Tameside & Glossop Acute Services NHS Trust v Thompstone & Ors [2008] EWCA Civ 5 (17 January 2008)

Thu, 17 Jan 2008 00:00:00 GMT

Exercise of the Power to Order Periodical Payments: The Court of Appeal held that Courts were required to determine which index was appropriate, fair and reasonable when making periodical payments orders under the Damages Act 1996. The trial judges had been correct to apply the ASHE index in three of the cases The question of whether or not the RPI was sufficient was a comparative exercise and would depend upon what other alternatives were available. Although the judge ought to have regard for the wishes and preferences of the parties, ultimately it was for him to decide how nest to meet the claimant’s needs. He was likely to be assisted by the report of an independent financial adviser.

Day v Suffolk County Council & Ors [2007] EWCA Civ 1436 (23 November 2007)

Sun, 23 Dec 2007 00:00:00 GMT

Local Authority Liable for Defective Inspection of a Highway The appellant local authority appealed against a decision that it was liable for failing to secure that a public highway was not dangerous to traffic, in accordance with the Highways Act 1980. The trial judge found that an inspection that had been carried out from a vehicle that was travelling at 25mph was insufficient because the speed was too fast to allow a proper inspection to be performed. The Court of Appeal held that the trial judge had been entitled to conclude that, on the balance of probabilities, a dangerous defect existed in the highway at the time. It said that judges are fact finders who have to draw inferences from the limited evidence with which they are provided.

Rolls Royce Industrial Power (India) Ltd v Cox [2007] EWCA Civ 1189 (22 November 2007)

Sat, 22 Dec 2007 00:00:00 GMT

Judge Right to Conclude that Mesothelioma Case against Appellant had been Proven The appellant company appealed against a decision that they were liable to the widow of an employee who contracted mesothelioma as a result of exposure to asbestos during 24 years working as a welder. He had been employed by the company for part of 1966-67; other companies who had employed him no longer existed or where unidentifiable. The appellants contended, inter alia, that there was no evidence that his work had entailed exposure to asbestos. The Court of Appeal held that, on the evidence, it was clearly open to the Judge to make the findings of fact that he had. Applying Fairchild, it held that there had been a material increase of contracting mesothelioma.

Fiona Smith v. Madeline Hughes & Home Concern (Scotland) Limited [2007] CSOH 199

Wed, 19 Dec 2007 18:02:00 GMT

Reparation - Motion for Issues:- In this action the pursuer sought damages as reparation for personal injury she sustained in a road traffic accident on 30 July 2004. Liability was admitted by the defenders and the only issue was the quantification of damages. Here the pursuer enrolled a motion to allow issues for jury trial. The motion was opposed by the defenders. It was submitted on behalf of the pursuer that any party has a statutory right to a jury trial unless "special cause" exists in not allowing issues. In deciding between proof or jury trial the court had to consider which type of tribunal would best secure justice between the parties. On behalf of the defenders it was submitted that the pursuer's pleadings gave no specification of basis for claims for (1) prospects of further promotion; and (2) past and future necessary services and the pursuer had failed to give sufficient specification of her claim in the pleadings. It was submitted on behalf of the pursuer that the pleadings in the present case complied with the relevant rules and "special cause" means some real ground of substance making the cause unsuitable for jury trial which had not been made out in the present case on behalf of the defenders. Here the court considered whether issues should be allowed on the pleadings in their present form and, if not, whether any deficiency in the pursuer's pleadings, for example, in relation to whether the pursuer had given sufficient specification in relation to the heads of damages he sought could be cured by amendment.

A v Powys Local Health Board [2007] EWHC 2996 (QB) (19 December 2007)

Wed, 19 Dec 2007 00:00:00 GMT

PI Court Award in excess of £10 million: In one of the largest Court awards ever made after a contested trial in a PI case, the Claimant, a 16-year-old female who suffered severe injury as a result of her mother’s treatment during her birth, was awarded a lump sum equivalent to £10.7 million. In the course of a detailed judgment, Lloyd Jones J. dealt with numerous issues of significance to PI practitioners, including future loss of earnings, care, aids and equipment, transport and holidays

Dorning v Personal Representative of Paul Rigby (Deceased) [2007] EWCA Civ 1315 (13 December 2007)

Thu, 13 Dec 2007 00:00:00 GMT

Motorcyclist Successful where Accident Caused by other Motorcyclist: The Appellant successfully appealed against a decision dismissing his claim for injuries suffered in an accident where he lost control of his motorcycle as a result of another motorcyclist crashing in front of him. The Court of Appeal found that although the trial judge was correct to find that the motorcyclist who had crashed ahead was not liable for the Appellant being injured by debris from the collision left in the road, he had failed to consider the Appellant’s alternative case, that the loss of control was caused by reacting to the explosion and braking hard in an emergency. There was, however, a 20% reduction for contributory negligence.

Isik v Clegg [2007] EWHC 2552 (QB) (08 November 2007)

Sat, 08 Dec 2007 00:00:00 GMT

Claimant’s False Statements Cast Doubt on Whether he Suffered Injury Tugendhat J. held that, in light of a finding that the Claimant had deliberately made false statements in order to exaggerate his claim, he had not discharged the burden of proving that he suffered personal injury as a result of the Defendant’s negligent driving. This followed from a finding that the Defendant’s evidence was to be preferred where it differed from the Claimant’s. Although the medical expert clearly believed that the Claimant had suffered injury to his back, it was always open to a Court to conclude that the injuries remained in doubt where there were concerns over the Claimant’s truthfulness.

Thorp v Sharp [2007] EWCA Civ 1433 (06 December 2007)

Thu, 06 Dec 2007 00:00:00 GMT

Judge was Entitled to Find No Causative Link between Accident and Chronic Pain: The Court of Appeal held that, having considered the Claimant’s medical history and expert evidence, the Judge had been entitled to find that there was no causative link between an accident and Chronic Pain suffered by her. The Appellant had contended that the failure of all medical enquiries to identify the cause of the pain meant that, on the balance of probabilities, it had been caused by the accident. The Court said that it was clear that the judge had found that no causative link had been proven; it was beyond the experts’ professional competence to assert positively that there was an ongoing causative link.

Hughes v Guise Motors Ltd [2007] EWHC 2529 (QB) (01 November 2007)

Sat, 01 Dec 2007 00:00:00 GMT

Driver not Negligent in Failing to Reach Hard Shoulder Tugendhat J. determined as a preliminary issue that a Claimant who had broken down on a motorway and been unable to reach the hard shoulder was not contributorily negligent. The Claimant had been driving in the middle lane and the collision occurred in the inside lane; it was clear from this that he had been trying to get to the hard shoulder. It would have been difficult for him to change lanes due to the heavy traffic, it was impossible to say exactly at what point his engine cut out. It is likely that there would have been a fatal accident if he had evacuated the car.

Novartis Grimsby Ltd v Cookson [2007] EWCA Civ 1261 (29 November 2007)

Thu, 29 Nov 2007 00:00:00 GMT

Breach Of Confidence: Judge was Entitled to Prefer Evidence of One Expert over Cause of Cancer: The trial judge found that the Claimant’s carcinoma of the bladder was caused by exposure to carcinogens in the course of his employment at the Defendant’s dye plant. He preferred the Claimant’s expert who suggested that employment with the Defendant was the major contributing cause of the cancer to the Defendant’s expert who suggested that it was smoking tobacco. The Court of Appeal held that published opinion did not establish that the risk from occupational exposure would decrease over the passage of time. Therefore, the judge was entitled to prefer one expert over the other, and had given clear reasons for doing so.

Leanne Hendry v. Alexander Taylor & Sons & NIG Insurance Limited [2007] CSOH 178

Tue, 13 Nov 2007 18:50:00 GMT

Personal Injury - Specification of Documents & Diligence:- In this action the pursuer sought damages following a car accident in which she blamed the defenders' employee. Liability was admitted and the only remaining issue was the quantification of damages. The defenders lodged a specification of documents and applied for a commission and diligence. Two of the three calls were opposed. The basis of the objection was that the calls were not limited to medical records dating from the accident but they also related to the pre accident medical records. On behalf of the pursuer it was submitted that this amounted to a fishing exercise and the specification should be refused. On behalf of the defender it was submitted that it was necessary to establish whether the pursuer was suffering from a pre existing medical condition at the time of the accident as any such pre-existing condition would be material to the proper quantification of her future loss claim. Here the court considered whether to grant the commission and diligence in terms of the calls in the specification.

Dale McFarlane v. Barry Thain & James Campbell & The Motor Insurers Bureau [2007] CSOH 176

Tue, 13 Nov 2007 18:49:00 GMT

Personal Injury - Proof Before Answer:- On 17 June 1999 the pursuer was the pillion passenger on a motor cycle being driven by is friend, the first defender, who was uninsured. The motor cyle collided with a motor car being driven by a 67 year old man, the second defender. Due to the first defender not being insured the Motor Insurers Bureau entered the proceedings as minuters. As a result of the crash the pursuer was thrown some distance from the motor cylce, his crash helmet came off and he suffered a head injury and a broken leg. The MIB disputed liability on the ground that the pursuer had known that the motorcyclist was uninsured, unlicensed and had been drinking before the accident. Further, both the second defender and the MIB plead contributory negligence on the part of the pursuer as the pursuer failed in his duty to wear a properly fastened crash helmet. A proof before answer took place on the issue of liability. Here the court considered the evidence that was led and formed the view that the primary cause of the accident was the speed at which the motor cycle was travelling having regard to the particular circumstances and inherent hazards at the locus at the time of the accident. In addition, the court considered what, if any, blame was to be attributed to the second defender. The court also considered the issue of contributory negligence particularly in light of the evidence that was led in relation to the pursuers unfastened crash helmet.

Evans v. Kozmar Villa Holidays Plc. (2007), unreported (LTL), CA, 23/10/07

Tue, 23 Oct 2007 00:00:00 GMT

Tour Operator’s Contractual Duty in respect of Occupiers’ Liability. The Court of Appeal held that the judge had been wrong to hold that a tour operator was in breach of its contractual duty of care to a claimant who was injured on a package holiday to Corfu when he dived into a swimming pool of unknown depth. The judge had been wrong to hold that the line of occupier’s liability cases that state that there is no duty to protect people against obvious risks could be distinguished. The core of that reasoning applies to lawful visitors to whom a contractual duty can be owed.

Johnston v. NEI International Combustion Ltd [2007] UKHL 39 (17 October 2007)

Wed, 17 Oct 2007 00:00:00 GMT

Pleural Plaques do not Amount to Actionable Damage. The House of Lords held that symptomless pleural plaques caused by negligent exposure to asbestos were not actionable damage. Pleural plaques do not themselves cause asbestos related diseases, but they signal the presence of asbestos fibres that might independently cause serious diseases. The appellants had contended that although the plaques were symptomless, they carried with them the risk of future disease and consequent anxiety. Their Lordships held that the plaques were likely to never cause the claimants any symptoms, nor increase their susceptibility to other diseases. The risk of future disease can only be taken into account when considering some other compensatable physical injury; it does not give rise to a cause of action in itself.

Gravatom Engineering Systems Ltd v Parr [2007] EWCA Civ 967 (16 October 2007)

Tue, 16 Oct 2007 00:00:00 GMT

Employer’s Duty under the Manual Handling Regulation. The Court of Appeal rejected an appeal against a decision that an employer was liable under the Manual Handling Regulations 1992, as amended, to employees who suffered injury moving large machines. It was clear from Schedule 1 to the Regulations that the degree of risk involved in any operation would vary depending on numerous factors such as the distance involved, whether it involved moving in a straight line, the length of time for which physical effort was required and the age and capability of the employees doing the moving. On the facts found by the judge, it was difficult to challenge his finding that there was a serious risk to the claimant and his colleagues. In particular, he had identified a number of steps that could have been taken to reduce the risk.

Ab & Ors v Small Mines - and - UK Coal [2007] EWHC 1939 (QB) (13 August 2007)

Sat, 13 Oct 2007 00:00:00 GMT

Miners’ Claims against the Department of Business, Enterprise and Regulatory Reform. The Court held as a preliminary issue that the claimant, a former miner who suffered from respiratory disease, was able to proceed against both defendants. The Department had entered into an agreement with a co-ordinating group of solicitors; the agreement dealt with the handling of all outstanding claims for respiratory diseases. The claimant accepted a payment from the Department, and then argued that he was entitled to bring a claim against the co-defendants under the terms of the agreement. The defendants argued that the claimant should only be able to proceed against them at common-law. Swift J. said that it was practical and possible to incorporate the terms of the agreement into a claim when the Department were no longer a party; to do so would be the most efficient, effective and expeditious way of dealing with the claim.

Bee v Jenson [2007] EWCA Civ 923 (13 September 2007)

Thu, 13 Sep 2007 00:00:00 GMT

Tortfeasor should pay the reasonable cost of vehicle hire. The defendant’s insurer appealed against a decision that it was liable for the cost incurred by the claimant of hiring a replacement car following a road accident on the ground that he was not actually liable for the hire charges in any event. It was held that the claimant’s liability to the hire company did not fall to be determined as it was not relevant to the real issue in the case. The real issue was whether he could recover a reasonable hire charge reasonably incurred or only the true cost to the defendant’s insurers. The Court preferred the former approach, particularly in light of the fact that the only reason the claimant had not himself paid for the use of a hire car was that he had paid a premium to his insurance company to cover precisely the eventuality which occurred.

Burton v Kingsbury [2007] EWHC 2091 (QB) (13 September 2007)

Thu, 13 Sep 2007 00:00:00 GMT

Assessment of Damages for Paraplegic Claimant. Damages were assessed for a claimant who had been rendered paraplegic in a road accident. Flaux J. held that he fell in the mid-range for quadriplegia set out in the JSB Guidelines on the basis that although he had no residual movement below his shoulders and suffered some pain, he had no brain damage and could speak, see and hear normally. It was held that it had been reasonable for him to purchase an adapted bungalow with a swimming pool; he would be entitled to interest on the difference between the figure paid for the house and the lower figure he would have otherwise paid for an ordinary property. The overall gross award of damages was £6.3M.

Anne McGregor v. LMRS Farm Limited [2007] CSOH 153

Tue, 11 Sep 2007 11:27:22 GMT

Reparation - Liability:- On 28 The pursuer was injured when she was thrown from a horse during a riding lesson at the defenders' premises on 2 April 2005. Damages were agreed in the sum of £30,000 and the only issued to be determined was liability. The central arguement in the pursuer's case was that she should not have been given the horse in question for the lesson she was attending on the day of the accident because it was a new class, a new instructor and a new horse which had been used by more experienced riders in the past. Here the court considered, in the particular circumstances of the busy Saturday morning, whether the decision to place the pursuer on the particular horse was negligent.

Agnes Buckley Wilson v. Glasgow City Council [2007] CSOH 143

Tue, 11 Sep 2007 11:25:41 GMT

Proof - Reparation:- On 4 May 1999 the pursuer sustained injuries as a result of a fall on a flight of stairs as she walked to her car to drive to her night shift. On Record the pursuer averred that several steps on the last flight were loose. She claimed that the loose steps wobbled and moved underfoot when she stood on them and she lost her footing on a loose step and fell causing a head injury and a compound fracture to the neck of the left humerus. In the action quantum was agreed and the proof proceeded solely on liability. At proof a number of issues arose:- (1) whether the pursuer fell on the stairs; (2) whether the pursuer lost her footing on a loose step and (3) whether the defenders knew or ought to have known of any defect. Here the court considered whether the defenders knew or ought to have known that there was a defect which constituted a hazard to persons using the stairway and whether it was reasonably foreseeable that a person using the stairs, such as the pursuer, would fall and sustain injuries.

Susanna Bell v. North Ayrshire Council [2007] CSOH 144

Tue, 11 Sep 2007 10:24:00 GMT

Proof - Reparation:- On 24 May 2003 the pursuer was visiting her friend who rented her home from the defenders. Whilst trying to open a window the pursuer's hands slipped and they went through the glass. She blamed the defenders for the accident and sought damages for the injuries she sustained. Prior to proof parties agreed that the value of the claim was £17,500. The window was stiff and had been reported to the defenders and the window was said to be a danger in terms of section 2 of the Occupiers' Liability (Scotland) Act 1960 and the defenders were said to be in breach of their duties under s.3 of the 1960 Act. The key issue in dispute was whether the pursuer's friend "Ms McLaughlan" had, prior to 24 May 2003, reported to the defenders that the window was stiff and had requested that they repair it.

James Gibson Baillie v. ECG Group Limited

Thu, 23 Aug 2007 00:00:00 GMT

Accident At Work/ Issues:

Linda Berry v. McCowans Limited

Thu, 23 Aug 2007 00:00:00 GMT

Accident At Work:

Thompson & Ors v Arnold [2007] EWHC 1875 (QB) (06 August 2007)

Mon, 06 Aug 2007 00:00:00 GMT

Death as a Consequence of Injuries for which Damages already awarded. Langstaff J. held that the dependents of an accident victim who received compensation in respect of personal injuries that subsequently proved to be fatal could not bring a claim under the Fatal Accident Act 1976. The case of Read v. Great Eastern Railway Co. (1867), concerning a precursor to the existing legislation, had been correctly decided as a matter of statutory construction and did not offend against Article 6 or 8 of the ECHR. If death had brought a right of action into play it would give rise to the prospect of double recovery for the same wrongful act. The instant case was not one in which equity could provide relief from the consequences of a unilateral mistake.

Thompson & Ors v Arnold [2007] EWHC 1875 (QB) (06 August 2007)

Mon, 06 Aug 2007 00:00:00 GMT

LM, Re [2007] EWHC 1902 (Fam) (01 August 2007)

Wed, 01 Aug 2007 00:00:00 GMT

Reporting Restrictions for Inquest into Death of a Child. Sir Mark Potter, the President of the Family Division, held that it was inappropriate to grant reporting restrictions on a coroner’s inquest into the death of a child. The media’s right to report the proceedings under Article 10 outweighed the rights of the deceased child’s sibling under Article 8. The Court was not satisfied that lasting harm to the sibling would be caused by the reporting. Restriction of the sibling’s identity, and any information that could lead to her identification, was proportionate and necessary to protect her Article 8 rights.

LM, Re [2007] EWHC 1902 (Fam) (01 August 2007)

Wed, 01 Aug 2007 00:00:00 GMT

Deadman v Bristol City Council [2007] EWCA Civ 822 (31 July 2007)

Tue, 31 Jul 2007 00:00:00 GMT

Duty of Care for Employer investigating complaint of Harassment. When considering the duty of care an employer owed to an employee when investigating a complaint of sexual harassment made against him, the Court of Appeal held that there was nothing in the trial judge’s findings of fact to suggest that the local authority should have been aware that the employee was liable to be seriously adversely affected by the ordinary operation of the employer’s procedure for investigating such complaints. The convening of a panel of two, rather than the three required by the procedure, had been an error, but it had not been suggested that it was reasonably foreseeable that a mistake of that kind might have had adverse consequences for the Defendant’s health.

Lane v. Lake, unreported, 31/7/07, QBD

Tue, 31 Jul 2007 00:00:00 GMT

Loss of Congenial Employment Not an Automatic Extra. In an assessment of damages for a claimant who had sustained severe brain injuries John Leighton Williams QC said, obiter, that an award for loss of congenial employment ought to be confined to those who have truly suffered a loss under the head and not be awarded merely by reference to the type of employment or as an automatic extra. He was awarded £5,000 because the judge accepted that he was a hard worker, loved his work and that it would be one of the things he misses the most.

Deadman v Bristol City Council [2007] EWCA Civ 822 (31 July 2007)

Tue, 31 Jul 2007 00:00:00 GMT

Lindsay Smith (Petitioner) for Judicial review of a Decision by the Committee of The Nairn Golf Club [2007] CSOH 136

Tue, 31 Jul 2007 00:00:00 GMT

Judicial Review

Carter v Basildon & Thurrock University Hospitals NHS Foundation Trust [2007] EWHC 1882 (QB) (30 July 2007)

Mon, 30 Jul 2007 00:00:00 GMT

Failure to Admit patient caused her Death. The Deceased, aged 20, complained of headaches in the mornings at a post-natal check six days after giving birth; she was nevertheless permitted to leave hospital. The next day she fell seriously ill and died at midday the following day. The Defendant admitted that it had breached its duty of care by not admitting her to hospital for assessment and observation. However, it argued that nothing could have been done to prevent the death in any event and the negligence made no difference. David Foskett QC held that, on the balance of probabilities, if the Deceased had been admitted to hospital she would have survived. She would have received heparin and other supportive treatment; her age, sex and general fitness suggest that she was a good candidate for survival.

Carter v Basildon & Thurrock University Hospitals NHS Foundation Trust [2007] EWHC 1882 (QB) (30 July 2007)

Mon, 30 Jul 2007 00:00:00 GMT

Dawes v. Aldis [2007] EWHC 1831, QBD, 27/7/07

Fri, 27 Jul 2007 00:00:00 GMT

Insufficient Evidence to found Contributory Negligence. It was accepted by both parties that the Claimant had been driving a stolen car at 50mph on the wrong side of the road. The Claimant contended that the Defendant should be found contributorily negligent for running across the carriageway when the impact occurred without giving him any opportunity to stop or avoid him. Eady J. held that, on the evidence, it was likely that the Claimant was at least partly on the carriageway when the Defendant struck him. However, no firm conclusion could be ascertained as to what happened immediately prior to the impact, meaning the Court was unable to infer on the balance of probabilities that the Claimant had been negligent.

Dawes v. Aldis [2007] EWHC 1831, QBD, 27/7/07

Fri, 27 Jul 2007 00:00:00 GMT

Tony Reid v Sundolitt Limited [2007] CSIH 64

Fri, 27 Jul 2007 00:00:00 GMT

Appeal

Piccolo v. (1) Larkstock Ltd; (2) Chiltern Railways, unreported, QBD, 17/7/07

Tue, 17 Jul 2007 00:00:00 GMT

Slipping Hazard caused by Flower Petals. The owner of a flower shop on a station concourse was held to be responsible for an injury sustained by the claimant when he slipped and fell after stepping on a petal because it had negligently failed to operate a reasonably effective and safe system of work for dealing with the danger from falling petals. The judge rejected the argument that it was not reasonable for a small florist to be expected to keep the floor dry and petal free at all times; a system that merely reacted to falling debris was not sufficient, a pro-active system was required. The station operator had discharged its common law duty of care as occupier by imposing contractual requirements upon the florist and by exercising supervision in the form of urgings and warnings. The claimant was not contributorily negligent; it could not be said that he had been walking other than with reasonable care.

Morag Lawson v The Broomfield Holiday Park A134/03

Fri, 13 Jul 2007 00:00:00 GMT

Reparation –

Peter Rainford v. Aberdeenshire Council [2007] CSOH 127

Thu, 12 Jul 2007 23:00:00 GMT

Proof - Reparation

Gavin Slessor v. Vetco Gray UK Limited & Others [2007] CSOH 130

Thu, 12 Jul 2007 22:00:00 GMT

Reparation - Issues

Awoyomi v Radford & Anor [2007] EWHC 1671 (QB) (12 July 2007)

Thu, 12 Jul 2007 00:00:00 GMT

Loss of Immunity from Suit is Retrospective. A claim issued against two barristers in 2006 for professional negligence that occurred in 1995 was held to be statute barred as the decision of the House of Lords in 2002 that advocates no longer enjoyed immunity from suit was intended to be retrospective in effect. In the absence of any immunity, all the elements of the cause of action had accrued in 1995, and the six years’ limitation period began to run from that date. In any event, even if immunity had subsisted in 1995, it would not have prevented the accrual of a cause of action.

Graeme Carling v. W.P. Bruce Limited [2007] CSOH 119

Tue, 10 Jul 2007 00:00:00 GMT

Reparation

Mr. Ben Brouwers v. Mr. Raymond David Tartaglia [2007] CSOH 115

Fri, 06 Jul 2007 00:00:00 GMT

Reparation - Prescription - Procedure Roll

Mr. Ben Brouwers v. Mr. Raymond David Tartaglia [2007] CSOH 115

Fri, 06 Jul 2007 00:00:00 GMT

Reparation - Prescription - Procedure Roll

Vance v Taylor [2007] EWHC 1602 (QB) (06 July 2007)

Fri, 06 Jul 2007 00:00:00 GMT

Home Visit not Negligent. Held that a doctor had not failed to exercise reasonable care and skill in his conduct with a patient who was subsequently been diagnosed with a virulent infection. The evidence suggested that the claimant’s medical history was, on any view, unusual and did not fit any predictable pattern. The claimant had not been able to produce cogent evidence to defy the medical probabilities. In the circumstances it was surprising to advance a claim in negligence against one, arguably minor, contributor to the medical history, not least when it was acknowledged that a significant degree of his advice was good.

Gray v Thames Trains Ltd. & Anor [2007] EWHC 1558 (QB) (06 July 2007)

Fri, 06 Jul 2007 00:00:00 GMT

Damages where Accident Caused Claimant to Behave Criminally. A claimant whose personality changed as a result of the severe post-traumatic stress disorder he suffered as a result of the Ladbroke Grove rail crash, and who was convicted of manslaughter as a direct result of this, was unable to recover damages in respect of those aspects of his claim that were dependent on the manslaughter. This was due to public policy reasons based on the maxim of ex turpi causa. The test that had to be applied was whether the claim was so closely connected or inextricably bound to the criminal conduct that the court could not permit him to recover damages without appearing to condone that conduct.

Ellis v Bristol City Council [2007] EWCA Civ 685 (05 July 2007)

Thu, 05 Jul 2007 00:00:00 GMT

Liability for Temporary Slipping Hazards. The requirement under section 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 that a workplace floor must not be slippery not only applies to permanent states of slipperiness but also to states of slipperiness that occur with a sufficient degree of frequency and regularity. The claimant, an employee of an old people’s home, had slipped on a pool of urine left on a smooth vinyl floor by a resident. There was evidence before the court that residents urinated on the floor several times per week. The claimant was found to be one third contributorily negligence because she had been warned of the danger and could have kept a special look-out.

Secretary of State for Trade and Industry v Mackie [2007] EWCA Civ 642 (28 June 2007)

Thu, 28 Jun 2007 00:00:00 GMT

Date of Knowledge for Limitation. A claim for damages for noise-induced deafness against an employer was statute-barred under section 11 of the Limitation Act 1980 as it was brought after the expiration of the period of three years after the date of knowledge that the injury was significant and was attributable to working conditions. The trial judge had found for the claimant having not considered the factual issues surrounding the circumstances in which he came to have his hearing tested in 1992. The Court of Appeal were satisfied on the facts that the claimant’s hearing test was probably arranged by the union or the solicitors with a view to bringing a claim for damages.

Holt v Edge [2007] EWCA Civ 602 (22 June 2007)

Fri, 22 Jun 2007 00:00:00 GMT

Doctor not liable where Patient did not present usual symptoms. The respondent general practitioner admitted a breach of duty in failing to ensure that the appellant was spoken to by a doctor earlier on the day in which she suffered a fall in the shower. The trial judge had found as a fact that the appellant had not presented with the usual symptoms of a subarachnoid haemorrhage. The Court of Appeal held that a telephone triage would have made no difference because the doctor would have learnt nothing that would have made a reasonably competent and careful medical practitioner to refer the appellant immediately to hospital.

Gawler v. Raettig, unreported, HL, 13/6/07

Wed, 13 Jun 2007 00:00:00 GMT

Appropriate Reduction for Failure to wear a Seat-belt. The House of Lords rejected a petition from the Defendant seeking a ‘leapfrog’ appeal from the decision of the QBD of 01.03.07. There Gray J had held that public policy did not require any reconsideration of the approach laid down by the Court of Appeal in Froom v. Butcher for determining the appropriate reduction to awards of damages to reflect the claimant’s contributory negligence in failing to wear a seat-belt. The appropriate reduction in such cases is 25%.

John Strachan v. Railtrack plc [2007] CSOH 100

Wed, 13 Jun 2007 00:00:00 GMT

Motion to Allow Amendment of the Closed Record - Reparation

Thomas Weatherstone v. T. Graham & Son (Builders) Limited [2007] CSOH 94

Thu, 07 Jun 2007 00:00:00 GMT

Proof - Reparation

Kendall v. Southwark Borough Council, unreported, QBD, 1/6/07

Fri, 01 Jun 2007 00:00:00 GMT

Duty on an Educational Psychologist. Where an assessment of a claimant’s special needs by an educational psychologist employed by the defendant local education authority had, in all respects, amply fulfilled the requirement for a competent assessment reflecting contemporary advice and practice, a claim for professional negligence in the making of that statement had to fail.

Graham Robertson v. Glasgow City Council [2007] CSOH 89

Tue, 29 May 2007 00:00:00 GMT

Proof - Reparation

Wakeling v McDonagh & Anor [2007] EWHC 1201 (QB) (25 May 2007)

Fri, 25 May 2007 00:00:00 GMT

The Highway Code and Contributory Negligence. Judge Mackie QC held that a breach of the Highway Code, if established, did not create a presumption of negligence, but was merely a factor to be taken into account when considering the issue. The defendant adduced evidence that suggested that the claimant had not continued to look down the road before moving out from behind a van. However, the judge felt that on the evidence available he had probably taken adequate steps to look out before crossing the road but was deceived by the speed of the oncoming vehicle.

Maranowska v Richardson & Anor [2007] EWHC 1264 (QB) (25 May 2007)

Fri, 25 May 2007 00:00:00 GMT

Duty of Care on a Bus Driver. A bus driver had not been negligent in hitting a pedestrian at a staggered pedestrian crossing where the traffic signals were in favour of the bus; the pedestrian had stepped out having failed to check for oncoming vehicles whilst labouring under the mistaken apprehension that the bus lane was governed by the same crossing as the ordinary traffic carriageway. The bus could have been travelling at no more than 10mph, which was well within the speed limit for the bus lane. The driver had not been negligent in failing to anticipate that the Claimant would step out from the traffic island in the centre of the crossing.

Margaret Hughes v. Grampian Country Food Group Limited [2007] CSIH 32

Fri, 18 May 2007 00:00:00 GMT

Reclaiming Motion - Personal Injury

John Dillon v. Inverclyde Leisure [2007] CSOH 82

Thu, 10 May 2007 23:00:00 GMT

Proof – Reparation

Wilson v Ministry of Defence & Anor [2007] EWCA Civ 485 (09 May 2007)

Wed, 09 May 2007 00:00:00 GMT

Finding of Conscious Exaggeration. Whilst the trial judge had held that there was conscious exaggeration by the Claimant, this in itself was not determinative of whether the accident had caused the Claimant’s symptoms for longer than three months, or whether it had led to his discharge from the forces. The judge had failed to consider the medical evidence, which did not suggest that the Claimant was deliberately fabricating his symptoms. If the judge rejected the medical evidence it was incumbent on him to say so and give reasons why. The judge had failed to spell out his findings and to give reasons for those findings, accordingly the matter had to be remitted for rehearing.

Lynn Symington v. Emma Milne

Fri, 04 May 2007 00:00:00 GMT

Appeal to Sheriff Principal

Farley v Buckley [2007] EWCA Civ 403 (03 May 2007)

Thu, 03 May 2007 00:00:00 GMT

Negligence of a Driver. The trial judge had been correct to find that the fact that the Defendant failed to edge forward bit-by-bit (i.e. “nose-poke”) did not amount to indisputable evidence of negligence. It would be too much to expect a driver in the position of the Defendant to calculate to a nicety the number of inches that it would be prudent to nose-poke. Nose-poking carried risks of its own, in particular that it might provoke an overtaking motorcyclist to swerve. The judge had found that the Claimant was reckless; the Defendant could not have foreseen that a motorcycle would have been overtaking in such a reckless manner.

Phillips & Co & Anor v. Whatley (Gilbraltar) [2007] UKPC 28 (2 May 2007)

Wed, 02 May 2007 00:00:00 GMT

Loss of a Chance of Establishing Liability. In an action against a law firm for loss of a chance to pursue a claim for damages for personal injury against an employer, the Privy Council substituted its own assessment of the prospects of establishing liability and of successful recovery of any damages awarded.

Johnson v Warren [2007] EWCA Civ 595 (02 May 2007)

Wed, 02 May 2007 00:00:00 GMT

Smith v Manchester Award. The trial judge had been right to refuse to make a Smith v. Manchester award. He plainly found that the Claimant was fit and capable of doing non-physical work, such as clerical work, which was freely available to her, and he was entitled to conclude that there was no real risk that she would be out of work on the basis the only available work was physical. There was no scope to make a Smith v Manchester award and it was impossible to say that the judge's conclusion was wrong.

Alexander Bloomfield Wilson v. BAE Systems plc [2007] CSOH 79

Thu, 26 Apr 2007 00:00:00 GMT

Proof - Reparation

Eyres v Atkinsons Kitchens & Bedrooms Ltd [2007] EWCA Civ 365 (24 April 2007)

Tue, 24 Apr 2007 00:00:00 GMT

Consideration of the Balance of Probabilities. Although the judge had concerns about the Claimant’s credibility, his case was not a positive one, and it was essential that all the circumstances of the case were analysed carefully to see where the balance of probabilities lay. The judge had taken account of all the circumstances of the case but had not analysed them and had not balanced one possibility against the other. The Court considered that there must have been some time when the Claimant became aware that he was at risk of falling asleep at the wheel; overall contributory negligence was assessed at 33%.

Van Colle & Anor v Hertfordshire Police [2007] EWCA Civ 325 (24 April 2007)

Tue, 24 Apr 2007 00:00:00 GMT

Damages for breach of a duty to take preventive measures to protect a vulnerable witnes. Where it was established that the state authorities knew or ought to have known of the existence of a real and immediate risk to the life of an individual as a result of the criminal acts of a third party, the state had a positive obligation under Article 2 of the ECHR to take preventive, operational measures to protect that individual. That obligation was breached if they failed to take the measures, within the scope of their powers, which, judged reasonably, might have been expected to avoid that risk. The question should be considered in the context that the deceased was a witness for the prosecution in a criminal trial, and not simply a member of the public at large. The judge had taken two inappropriate matters into account when assessing the damages; as a consequence of this the awards were too high.

Moore v Secretary of State for Transport Motor Insurers Bureau [2007] EWHC 879 (QB) (20 April 2007)

Fri, 20 Apr 2007 00:00:00 GMT

Accrual of cause of action for Francovich damages. In a claim for Francovich damages based on defective implementation of a Directive, the cause of action accrued on the date the Claimant was injured by an untraceable driver, since it was then that he was disadvantaged by the defects he alleged, rather than on the later date when he was denied the compensation he sought.

Kosmar Villa Holidays Plc v The Trustees of Syndicate 1 2 4 3 [2007] EWHC 458 (Comm) (04 April 2007)

Wed, 04 Apr 2007 00:00:00 GMT

Insurance- Doctrine of Election. The consequence of a failure on the part of an insured to comply with a condition precedent requiring the immediate notification to the insurers of the occurrence of any injury or damage was not that the insurers were automatically discharged from liability, but rather that their duty to pay a claim for which they otherwise would, or might have been liable under the policy, had not arisen. The insurers remained free to choose whether to reject the claim or to accept it, notwithstanding the failure to notify and there was therefore scope for the doctrine of election to apply.

Rice & Anor v Secretary of State for Trade & Industry & Anor [2007] EWCA Civ 289 (04 April 2007)

Wed, 04 Apr 2007 00:00:00 GMT

Duty of Care to Protect Employees. There was a common law duty of care on the National Dock Labour Board requiring them to protect their individual employees against a known serious risk to their health. The bald proposition that a body created by statute could not be recognised as owing such a duty is untenable. The question of whether the Defendant owed the Claimants a duty of care turned on whether there was a sufficient relationship of proximity; in light of the policy of the applicable statute it was fair, just and reasonable to impose a duty of care.

Miah v Birmingham and the Black Country Strategic Health Authority [2007] EWCA Civ 290 (03 April 2007)

Tue, 03 Apr 2007 00:00:00 GMT

Expert evidence- Findings of Fact. A judge's view that a midwife would not have failed to notice a prolapsed umbilical cord during a medical examination was a view that was he was clearly entitled to take on the evidence as, over a considerable period, he had been able to assess her as a witness and it was not a view with which the Court of Appeal could interfere.

Clayton Robertson v. Horses in Scotland Limited [2007] CSOH 68

Tue, 03 Apr 2007 00:00:00 GMT

Proof - Reparation

A v B (2007), Lawtel, QBD, 3/4/07

Tue, 03 Apr 2007 00:00:00 GMT

Damages for a mother’s fraudulent misrepresentation that a man was her child’s father. Where a mother had made fraudulent representations that the Claimant was her child's father and, as a result of those fraudulent representations, the Claimant had provided financial support for the mother and child, the Claimant was entitled to general damages and special damages for money spent on the mother, but not for money that had benefited the child.

Khalid ( A Child) v Barnet & Chase Farm Hospital NHS Trust [2007] EWHC 644 (QB) (29 March 2007)

Thu, 29 Mar 2007 00:00:00 GMT

Liability for oxygen starvation at birth- ‘But For’ test. A hospital Trust was liable for the severe brain damage that the Claimant sustained during her birth due to oxygen starvation, as that damage would not have occurred but for a 20-minute delay in arranging an emergency caesarean section. This delay had been caused by breaches of the duty of care.

Police Service of Northern Ireland v McCaughey, HL (NI) (Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Easton-under-Heywood, Lord Mance) 28/03/2007

Wed, 28 Mar 2007 00:00:00 GMT

ADMINISTRATION OF JUSTICE. Inquest – Jury verdicts. A jury in Northern Ireland may not return a verdict of lawful or unlawful killing. The Coroners Act (Northern Ireland) 1959 s.8 required the police service of Northern Ireland to furnish to a coroner to whom notice under s.8 is given such information as it then had or was thereafter able to obtain (subject to any relevant privilege or immunity) concerning the finding of a body or concerning the death.

Waltham Forest NHS Primary Care Trust & Anor v Malik, R (on the application of) [2007] EWCA Civ 265 (28 March 2007)

Wed, 28 Mar 2007 00:00:00 GMT

PROFESSIONS – HUMAN RIGHTS. Suspension under National Health Service (Performers Lists) Regulations 2004. The unlawful suspension of a doctor from the medical performers list pursuant to the National Health Service (Performers Lists) Regulations 2004 did not amount to or give rise to a deprivation of a possession so as to engage the European Convention on Human Rights 1950 Protocol 1 Art.1.

Ryan Brain v Yorkshire Rider Ltd (2007), Lawtel, CC (Leeds), 26/3/07

Mon, 26 Mar 2007 00:00:00 GMT

Recovery of the cost of hiring a replacement vehicle. When assessing damages for the cost of hiring a replacement car following a road traffic accident, the judge had misdirected himself and had erred in holding that a Claimant had failed to mitigate his loss by hiring an equivalent car instead of a cheaper vehicle.

John O'Donnell v. Sheila MacLean [2007] CSOH 62

Fri, 23 Mar 2007 00:00:00 GMT

Reparation - Personal Injury

Gavin Slessor v. Vetco Gray UK Ltd & c [2007] CSOH 59

Fri, 23 Mar 2007 00:00:00 GMT

Motion for summary decree - Reparation

Bishara v Sheffield Teaching Hospitals NHS Trust [2007] EWCA Civ 353 (26 March 2007)

Tue, 20 Mar 2007 00:00:00 GMT

Summary Judgement. The judge had erred in granting summary judgment in a claim for personal injuries as it was not possible to say that no duty of care was owed until the claim had been advanced and the evidence tested.

Milton v Crown Prosecution Service [2007] EWHC 532 (Admin) (16 March 2007)

Fri, 16 Mar 2007 00:00:00 GMT

Dangerous Driving. Whilst the test under the Road Traffic Act 1988 s.2A(3) for determining whether a driver had been driving dangerously was primarily an objective test, circumstances relevant to dangerousness that were favourable to the driver such as his special driving skills or adverse circumstances such as a complete lack of experience, could be taken into account in applying the objective test.

Matthews (a patient) v Metal Improvements Co Inc [2007] EWCA Civ 215 (14 March 2007)

Wed, 14 Mar 2007 00:00:00 GMT

Permission to accept Part 36 Payment into Court out of time – Costs. A judge giving the claimant permission to accept out of time a sum paid into court had not identified any fact that made it unjust to make the usual order for the claimant to pay the defendant's costs after the expiration of 21 days from the payment into court.

Arden v Malcolm, High Ct, 02/03/2007

Fri, 02 Mar 2007 00:00:00 GMT

Statistical Evidence in relation to life expectancy. A judge had not erred in refusing to allow expert statistical evidence as to life expectancy to be adduced in a personal injury action as the appropriate course was for the matter to be addressed by the clinical experts with the expert evidence of a statistician required only if the clinician experts could not agree.

Reader & Ors v Molesworths Bright Clegg Solicitors [2007] EWCA Civ 169 (02 March 2007)

Fri, 02 Mar 2007 00:00:00 GMT

Fatal Accidents Act 1976, S.1 – Cause of action surviving for the benefit of dependants. Pursuant to the Fatal Accidents Act 1976 s.1, if at the moment of his death, an injured claimant had an existing cause of action arising from the wrongful act that caused his injuries, and if he died as the result of the same wrongful act, a second cause of action for the benefit of his dependants would come into being at that moment. That action for bereavement or dependency would not be extinguished where the original personal injury claim had been discontinued.

Lindsay v Wood, High Ct, 01/03/2007

Thu, 01 Mar 2007 00:00:00 GMT

Assessment of Damages – Gratuitous Care. The assessment of damages due to a claimant who had suffered severe brain damage that had left him needing lifelong care and support depended on whether he would receive some gratuitous care from his wife who lived in Australia, and would be assessed on the basis that there was only a 20 per cent chance that his application to join her and live in Australia in the long term would succeed.

Santos v Eaton Square Garage Ltd [2007] EWCA Civ 225 (23 February 2007)

Fri, 23 Feb 2007 00:00:00 GMT

Damages award considered erroneous. Where an employee had suffered orthopaedic and psychological injuries after sustaining a crush injury while at work, an award of £45,000 in general damages was erroneous and it would be an injustice for the employer to pay an amount of that magnitude.

Lodge v Cook, High Ct, 22/02/2007

Thu, 22 Feb 2007 00:00:00 GMT

Road Traffic Accident – Causation of injuries not established. The claimant failed to establish a causative link between a road traffic accident for which the defendant had been responsible and her existing medical condition.

Curry & Anor v Ehrari [2007] EWCA Civ 120 (21 February 2007)

Wed, 21 Feb 2007 00:00:00 GMT

Road Traffic Accident – Failure to keep a careful watch. The driver of a truck, who had been aware of the presence of children on the pavement of a busy road and whose truck had struck a child crossing that road, had been negligent in failing to keep a careful watch and consequently failing to see that pedestrian before the moment of impact. In the circumstances, the driver had had an opportunity to take effective avoiding action by swerving to his offside away from the pedestrian.

Hindson v Pipe House Wharf (Swansea) Ltd. [2007] EWHC 273 (QB) (21 February 2007)

Wed, 21 Feb 2007 00:00:00 GMT

Pleural Plaques & Pre-existing condition – Assessment of Damages. In assessing damages for personal injury as result of the negligent exposure to asbestos dust, which had caused pleural plaques on the lungs and a risk of developing malignant and non-malignant diseases, on the facts of the case it had not been appropriate to reduce the appropriate award of general damages to take into account the potential effects of the claimant's pre-existing condition, but that had been a factor in the assessment of his future loss of earnings.

Sharp v Ministry of Defence [2007] EWHC 224 (QB) (14 February 2007)

Wed, 14 Feb 2007 00:00:00 GMT

Road Traffic Accident – Failure to keep a careful watch. The claimant had been solely responsible for an accident involving a convoy of military vehicles, where he should have been keeping a safe distance from the vehicle in front so that he could have come to a stop without colliding with it, even if that vehicle had unexpectedly come to an abrupt halt.

Brett v University of Reading [2007] EWCA Civ 88 (14 February 2007)

Wed, 14 Feb 2007 00:00:00 GMT

Mesothelioma – Liability not established – Multiple Exposure : Where it was possible to prove that the deceased had been exposed to asbestos during the course of his employment but not that the employer had been in breach of duty, the employer was not liable for the deceased contracting mesothelioma as the deceased had also been exposed to asbestos in earlier employments.

Van Wees v Karkour & Anor [2007] EWHC 165 (QB) (14 February 2007)

Wed, 14 Feb 2007 00:00:00 GMT

Road Traffic Accident – Damages. Substantial damages for personal injury were awarded to a woman of high intelligence and ability who had suffered a brain injury of moderate severity following a road traffic accident, where the subtle diminutions in her abilities to perform at a high corporate level had affected her ability to command a yet greater salary.

R v CICAP, High Ct (Admin) 14/02/2007

Wed, 14 Feb 2007 00:00:00 GMT

CICA Claim. In a claim for compensation under the 1990 Criminal Injuries Compensation Scheme, Sowden v Lodge (2004) EWCA Civ 1370, (2005) 1 WLR 2129 clearly placed upon the defendant the burden of proving that the apparent cost of the claimant's reasonable requirements should be reduced because of the possibility that local authority provision would meet some or all of them.

Colman v Scott & Ors, High Ct, 09/02/2007

Fri, 09 Feb 2007 00:00:00 GMT

Claims struck out – Abuse of Process. Claims against officers and employees of the General Medical Council were struck out as a clear abuse of process where the claimant had previously brought unsuccessful claims arising from the same or similar grievances against the GMC itself.

Crofton v NHSLA, CA (Civ Div) 08/02/2007

Thu, 08 Feb 2007 00:00:00 GMT

Personal Injury damages disregarded in considering statutory duties to meet care needs. A local authority was obliged, in determining whether it was necessary for it to meet a claimant's care needs under the National Assistance Act 1948 s.29 and the Chronically Sick and Disabled Persons Act 1970 s.2, to disregard any awards of damages for personal injury.

Philomena Maria Goreti Hutchison v. North Lanarkshire Council [2007] CSOH 23

Wed, 07 Feb 2007 00:00:00 GMT

Proof - Personal Injury

Finster v Arriva London & Anor [2007] EWHC 90070 (Costs) (07 February 2007)

Wed, 07 Feb 2007 00:00:00 GMT

Bill of Costs considered globally disproportionate. In the circumstances, a costs bill of £54,000 in relation to a road traffic claim was globally disproportionate, particularly where the claim was settled for only £10,000 and the case was not novel or complex demanding particular special skills. The equivalent to the reasonable costs of a one-day liability trial would be allowed in respect of the trial costs because liability issues could have been disposed of in a day.

Intel Incorporation (UK) Ltd v Daw [2007] EWCA Civ 70 (07 February 2007)

Wed, 07 Feb 2007 00:00:00 GMT

Employers’ Liability. An employer was negligent in failing to take steps to obviate the risk of an employee, who complained of being overworked and stressed and who had a history of depression, from suffering from a nervous breakdown. The damages for future loss of earnings had been assessed appropriately.

Spillman v Bradfield Riding Centre [2007] EWHC 89 (QB) (06 February 2007)

Tue, 06 Feb 2007 00:00:00 GMT

Interim Payment Applications. The determination of the amount of an interim payment had to be in accordance with CPR r.25.7(4) rather than by consideration of the purpose for which the payment was sought.

James Gibson v. Kevin Colin Whyte [2007] CSOH 17

Tue, 06 Feb 2007 00:00:00 GMT

Proof - Personal Injury

Ibstock Place School v Sodexho Education Services Ltd [2007] EWHC 150 (QB) (05 February 2007)

Mon, 05 Feb 2007 00:00:00 GMT

Applications for Pre-action Disclosure. The court declined to order pre-action disclosure where one of the necessary conditions under CPR r.31.16, namely, that the respondent would have been under a duty to disclose the classes of documents sought by way of standard disclosure had proceedings begun, had not been satisfied.

Sweetman v Shepherd & Ors [2007] EWHC 137 (QB) (02 February 2007)

Fri, 02 Feb 2007 00:00:00 GMT

Claims struck out – Abuse of Process. Where a claimant had issued proceedings in 1997 and had persistently failed to comply with directions and orders and had not progressed the litigation for long periods of time to the extent that his conduct of the case amounted to an abuse of process, it was just to strike out his claims.

Donna O'Halloran v. Ciba Speciality Chemicals plc [2007] CSOH 19

Fri, 02 Feb 2007 00:00:00 GMT

Proof - Personal Injury

Kirkman v Euro Exide Corporation (CMP Batteries Ltd) [2007] EWCA Civ 66 (25 January 2007)

Thu, 25 Jan 2007 00:00:00 GMT

Civil Evidence: Expert/Factual Evidence. A judge had erred in refusing to admit the evidence of a surgeon who had treated the claimant in a personal injury action, on the basis that to admit the evidence would have exceeded a limit on expert witnesses allowed at trial, as his statement was merely evidence of fact about what he himself would have done in hypothetical circumstances and not an expert opinion on what most competent surgeons would have done in the same situation.

McCoubrey v Ministry of Defence [2007] EWCA Civ 17 (24 January 2007)

Wed, 24 Jan 2007 00:00:00 GMT

Limitation Act 1980, S. 14(2). The proper approach to the question raised by the Limitation Act 1980 s.14(2) in relation to a claimant seeking to bring a personal injury claim outside the three-year period specified in s.11(4)(a) was to consider the reaction to the injury, as opposed to its possible consequences, of a reasonable person in the objective circumstances of the actual claimant, while disregarding his actual personal attributes.

Mountford v Newlands School & Anr, CA (Civ Div) 24/1/2007

Wed, 24 Jan 2007 00:00:00 GMT

Vicarious Liability. A school was vicariously liable in circumstances where a member of staff had selected a boy, who was well over the age group for the match, to play on a junior rugby team and that boy's superior size, weight and maturity had contributed to an opposing player being injured.

James Love v North Lanarkshire Council {2007} CSOH 10

Tue, 23 Jan 2007 00:00:00 GMT

Proof

Andrew Leslire v Babcock Engineering Services Limited [2007] CSOH 09

Fri, 19 Jan 2007 00:00:00 GMT

Procedure roll

General Medical Council, R (on the application of) v Kemm [2006] EWHC 52 (Admin) (12 January 2006)

Fri, 12 Jan 2007 00:00:00 GMT

GMC Proceedings. In the circumstances, the GMC had not owed a duty of fairness to the Singapore Medical Council in deciding not to pursue a charge against a GMC-registered doctor who had been found guilty of professional misconduct in Singapore.

Lambert & Anr v Cardiff County Council, High Ct (Cardiff) 11/01/2007

Thu, 11 Jan 2007 00:00:00 GMT

No liability for psychiatric injuries suffered by foster carers. A local authority was not liable for psychiatric injuries caused by a teenager's harassment of her former foster carers, as the authority's duty of care did not extend to insuring carers against such injury and because the fostering agreement, which provided that the authority would insure the carers, was not a legally enforceable contract.

Aerospace Publishing Ltd & Anor v Thames Water Utilities Ltd [2007] EWCA Civ 3 (11 January 2007)

Thu, 11 Jan 2007 00:00:00 GMT

Cost of Reinstatement. Where a publishing company's archive of historic aviation material had been damaged by flooding and the company intended to reinstate the archive and it was reasonable to do so, the correct measure of damages was the cost of reinstatement.

Derek Burnett v Grampian Fire and Rescue Service

Tue, 09 Jan 2007 00:00:00 GMT

Debate

Gloria Jean Urquhart v Fife Primary Care NHS Trust[2007] CSOH 02

Tue, 09 Jan 2007 00:00:00 GMT

Proof –

Aird & Anor v Prime Meridian Ltd [2006] EWCA Civ 1866 (21 December 2006)

Thu, 21 Dec 2006 00:00:00 GMT

Where an expert joint statement was made pursuant to CPR r.35.12 and was not privileged, it did not acquire without prejudice status because it was used in mediation.

Wakefield v Channel Four Television Corp & Ors [2006] EWHC 3289 (QB) (21 December 2006)

Thu, 21 Dec 2006 00:00:00 GMT

Confidentiality Assurances not absolute. Assurances of confidentiality of medical records given to patients by the General Medical Council when it was investigating serious criticisms of a doctor could not be regarded as absolute, since, as well as being subject to the Civil Procedure Rules 1998 and their implementation by the court, the assurances might be subject to overriding requirements that other considerations be given priority, the matter being determined by where the interests of justice lay.

Susan Rowlands v The Chief Constable of Merseyside Police [2006] EWCA Civ 1773 (20 December 2006)

Wed, 20 Dec 2006 00:00:00 GMT

Exemplary Damages. The acts of a police officer in physically restraining the appellant, handcuffing her, procuring her detention and giving false evidence in an attempt to secure her conviction could be capable of supporting a finding that he had behaved in an oppressive, arbitrary and unconstitutional manner and the jury should have been able to consider an award of exemplary damages against the chief constable under the Police Act 1996 s.88 and in accordance with the principles set out in Commissioner of Police of the Metropolis v Thompson [1998] Q.B. 498.

Hiles v South Gloucestershire NHS Primary Care Trust, High Ct, 20/12/2006

Wed, 20 Dec 2006 00:00:00 GMT

Stress at Work. An employer was in breach of its duty to its employee to take reasonable care to avoid injuring her health where it had become aware that her difficulties at work were having an adverse effect on her mental health, but had taken no steps to help her.

Diamond v Mansfield & Ors [2006] EWHC 3290 (QB) (20 December 2006)

Wed, 20 Dec 2006 00:00:00 GMT

Whilst the Bar Council, when considering or dealing with a prosecution in respect of a disciplinary matter, had to apply the principles of natural justice and could not act out of improper motive, malice or bad faith, that was a duty owed to all its members and did not arise out of a contract with any one individual member.

Pinder v Cape Plc [2006] EWHC 3630 (QB) (20 December 2006)

Wed, 20 Dec 2006 00:00:00 GMT

Mesothelioma – Foreseeability of Injury. The defendant company were not liable in negligence to the claimant, who had contracted mesothelioma as a result of playing in asbestos waste deposited by the company at a local tip in the 1950s, in circumstances where the claimant was not exposed to a level of asbestos which at that time would have been reasonably foreseeable as likely to cause him injury and he did not fall within the category of person that the defendant ought reasonably to have had in mind.

Ms Kathleen Hutton v. Simon JackAppeal to Sheriff Principal:-

Tue, 19 Dec 2006 00:00:00 GMT

Following a proof between 7 March 2006 and 9 March 2006, relating to a road traffic accident, the sheriff pronounced an interlocutor finding the respondent liable to the appellant in the sum of £750 with expenses restricted to £75 on the small claims scal

Alder v Chief Constable of Humberside & Ors, CA (Civ Div) 18/12/2006

Mon, 18 Dec 2006 00:00:00 GMT

Human Rights: The ignoring of a person's expressed concerns as to the manner in which the Crown Prosecution Service had carried out a prosecution could arguably amount to treatment of that person within the meaning of the Race Relations Act 1976, even if those concerns related to the taking of decisions germane to the prosecution process.

Helen Given v. James Watt College [2006] CSOH 189

Wed, 13 Dec 2006 00:00:00 GMT

Proof Before Answer- Reparation - Accident at Work

Robb v. Salamis (M & I) Ltd (Scotland) [2006] UKHL 56 (13 December 2006)

Wed, 13 Dec 2006 00:00:00 GMT

An employer was in breach of the Provision and Use of Work Equipment Regulations 1998 reg.4 and reg.20 by providing removable suspended ladders for employees to access the top bunks in their sleeping accommodation because the risk of injury, if the ladders were not replaced properly, should have been foreseen. An employee injured when descending an incorrectly replaced ladder was contributorily negligent because he knew that the ladders were often moved and should have checked the ladder.

Younger v Molesworth & Anor [2006] EWHC 3088 (QB) (07 December 2006)

Thu, 07 Dec 2006 00:00:00 GMT

Nuisance. There was a real prospect that, if the evidence were accepted, the appellant could establish at trial that the respondent had been aware of the serious ingress of water into the appellant's property and that the respondent knew that his drainage system was not satisfactory to prevent a build-up of pressure in the adjoining wall and could therefore be liable in nuisance for a failure to bring that defect to an end.

Richardson v Watson & Anr, CA (Civ Div) 6/12/2006; Times, December 13, 2006

Wed, 06 Dec 2006 00:00:00 GMT

Where a claimant had not given timely notice of her claim to the Motor Insurers' Bureau and the MIB was not prepared to overlook the fact, there was no objection in principle to the claimant discontinuing proceedings and commencing a fresh action in which a timely notice was given to the MIB.

Corbett v South Yorkshire Strategic Health Authority [2006] EWCA Civ 1797 (06 December 2006)

Wed, 06 Dec 2006 00:00:00 GMT

A case management decision not to adjourn the determination of the appropriate measure of indexation for periodical payments due to the claimant for his future care pending the outcome of an appeal to the Court of Appeal in another case had been appropriate.

Sharp v Elnaugh & Sons Ltd, CC (Colchester) 4/12/2006

Mon, 04 Dec 2006 00:00:00 GMT

Employee’s lack of care for own safety. On the evidence, an employer was not liable for personal injuries sustained by an employee who had fallen some height from a ladder in the course of his work as an electrician; the employee was entirely at fault in climbing the ladder while no one was present to foot it or secure it in position.

Miller v Rooney & ors (Deeny J, H Ct NI [2006] NIQB 7

Fri, 01 Dec 2006 00:00:00 GMT

First Defendant in breach of The Construction (Health and Safety at Work) Regulations 1996 No.6 with Claimant guilty of 30% contributory negligence. Second Defendant also liable on basis that he failed as an occupier to take reasonable steps to ensure First Defendant was a competent independent contractor. In particular he had not checked the insurance position of Mr Rooney. He had also failed to establish the defence under Section 2(4) of Occupiers Liability Act 1957. However, Claimant failed to establish that Third Defendant was a joint occupier.

Miller v Rooney & ors (Deeny J, H Ct NI [2006] NIQB 7 (Date Uncertain)

Fri, 01 Dec 2006 00:00:00 GMT

ES v Chesterfield NHS Trust, High Ct, 27/11/2006

Mon, 27 Nov 2006 00:00:00 GMT

Birth Injuries – Lump sum & RPI-linked periodical payments. The claimant, a 12-year-old girl, received a lump sum payment of £1,850,000 plus periodical payments linked to the Retail Price Index for the brain injuries sustained during her birth in November 1994. The claimant suffered from dystonic athetoid cerebral palsy.

Buck & Ors v Nottinghamshire Healthcare NHS Trust [2006] EWCA Civ 1576 (23 November 2006)

Thu, 23 Nov 2006 00:00:00 GMT

An NHS Trust was liable for injuries inflicted on nursing staff by a patient at a high security hospital where it had not implemented a policy recommended by the Safety and Security in Ashworth, Broadmoor and Rampton Hospitals Directions 2000. Had a risk assessment of the patient been carried out in accordance with that policy, which would have led to her being assessed as presenting an exceptionally high risk of causing serious injury to others, she would have been confined in her room at night with the result that the incident would not have occurred.

Amy Whitehead's Legal Representative v. Graeme John Douglas and Another [2006] CSOH 178

Mon, 20 Nov 2006 00:00:00 GMT

Commission and Diligence of material referred to i

Catholic Care (Diocese of Leeds) & Anor v Young [2006] EWCA Civ 1534 (14 November 2006)

Tue, 14 Nov 2006 00:00:00 GMT

The test under the Limitation Act 1980 s.14(2) to determine when a person would reasonably have considered an injury to be sufficiently serious to justify his instituting proceedings for damages was an objective one. That a person was inhibited by the injury itself from instituting proceedings was a factor to be taken into account.

Kew v Bettermix Ltd & Ors, CA (Civ Div) 14/11/2006

Tue, 14 Nov 2006 00:00:00 GMT

On the facts, time had started to run for limitation purposes when the employee's doctor concluded that there was a real possibility that his working conditions had caused his hand arm vibration syndrome, as that would have put the reasonable man on notice to investigate the link further. However, it had been open to the judge on the evidence to disapply the primary limitation period.

Cto Gesellschaft Fur Containertransport MBH & Co & Ors v Dziennik [2006] EWCA Civ 1456 (13 November 2006)

Mon, 13 Nov 2006 00:00:00 GMT

A finding of contributory negligence in a personal injury claim was set aside where the judge had based his finding on an allegation of negligence that had not been pleaded or argued at trial.

Norton v Corus UK Ltd [2006] EWCA Civ 1630 (13 November 2006)

Mon, 13 Nov 2006 00:00:00 GMT

A judge had been correct to rule that a claim issued in 2004, by a claimant who had suffered the symptoms of hand and arm vibration syndrome since 1992, was time barred as the claimant had actual knowledge of the disease in 2003 and constructive knowledge from at least 1997 and probably from 1992.

A v B Hospitals NHS Trust, High Ct (Admin) 10/11/2006

Fri, 10 Nov 2006 00:00:00 GMT

Where damages had been awarded for clinical negligence the appropriate award for the cost of future care was, in the circumstances, a lump sum payment, as periodical payments linked to the retail price index were likely to result in a substantial shortfall in the provision for the future care.

EH Humphries (Norton) Ltd. Thistle Hotels Plc v Fire Alarm Fabrication Services Ltd. [2006] EWCA Civ 1496 (10 November 2006)

Fri, 10 Nov 2006 00:00:00 GMT

In the circumstances a contractor's right to supervise the work of a sub-contractor so as to ensure that it was carried out safely imposed a duty of care on the contractor which extended to the safety of the sub-contractor's employees.

Pennington v Surrey County Council & Surrey Fire and Rescue Service [20061 EWCA Civ 1493 (09 November 2006)

Thu, 09 Nov 2006 00:00:00 GMT

A system of work that permitted a fire fighter to use a particular type of rescue equipment in a stressful situation when he had not been previously trained or experienced in its use was not a safe system of work. Accordingly the employer was negligent in failing to provide adequate training and was in breach of its statutory duty under the Provision and Use of Work Equipment Regulations 1998 reg.11.

Whittle v Bennett [2006] EWCA Civ 1538 (01 November 2006)

Wed, 01 Nov 2006 00:00:00 GMT

Where two drivers drove in tandem at excessive speeds a duty of care was owed by the second driver not just to the leading driver but also to those that might reasonably be affected by the second driver's actions.

Yorkshire Electricity Distribution Plc v Telewest Ltd [2006] EWCA Civ 1418 (31 October 2006)

Tue, 31 Oct 2006 00:00:00 GMT

Under the New Roads and Street Works Act 1991 s.82 if a statutory undertaker caused or required damage to apparatus belonging to another person in the course of street repairs, whoever it was that actually did the work that constituted the damage, the statutory undertaker had to pay for the making good of that damage unless it could establish negligence or misconduct by the other person under s.82(4) of the Act.

Smith & Anr v Harris, PC(Cl)(Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell, Lord Mance) 30/10/2006; [2006] UKPC 48

Mon, 30 Oct 2006 00:00:00 GMT

The judge and the Court of Appeal of the Cayman Islands had been justified in holding that the appellant was solely to blame for a road traffic accident in which his car collided with the respondent's car, and in finding that the physical evidence was not inconsistent with the respondent's version of events leading up to the accident.

Samantha Baird v. Graham Cowie [2006] CSOH 168

Fri, 27 Oct 2006 00:00:00 GMT

Personal Injury Action - Proof or Jury Trial

Miller v Garton Shires (a firm) [2006] EWCA Civ 1386 (25 October 2006)

Wed, 25 Oct 2006 00:00:00 GMT

There was no principle or practice that the court could not summarily dismiss a claim where there was untested paper evidence supporting it.

Stallwood v David & Anor [2006] EWHC 2600 (QB) (25 October 2006)

Wed, 25 Oct 2006 00:00:00 GMT

Under CPR Part 35 there were circumstances in which a party dissatisfied with an amended opinion from their expert after the experts' discussion could obtain permission to rely on evidence adduced from an additional expert.

Khokhar v Health Professions Council, High Ct (Admin) 20/10/2006

Fri, 20 Oct 2006 00:00:00 GMT

A clinical scientist's fitness to practise was clearly impaired by reason of lack of competence where the evidence showed a substantial number of errors across a broad area, concerning different topics and over a considerable period of time. It was clear from the evidence that those were serious errors, and assessments had revealed a serious lack of knowledge.

Coal Mining Contractors v Davies & Ors, CA (Civ Div) 20/10/2006

Fri, 20 Oct 2006 00:00:00 GMT

It had been a correct exercise of discretion not to join coalmining contractors to proposed group litigation between coalminers and the Department of Trade and Industry.

AB & Ors v Department of Trade & Industry S/A British Coal Corp & Ors, CA (Civ Div) 19/10/2006

Thu, 19 Oct 2006 00:00:00 GMT

An arrangement for compensation for vibration white finger, involving close supervision by the courts, included the power of the supervising judge to make a financial award where there were delays in dealing with the claims.

Atkins v London Borough of Ealing [2006] EWHC 2515 (QB) (17 October 2006)

Tue, 17 Oct 2006 00:00:00 GMT

In a case where a pedestrian had sustained injuries after stepping on an unstable manhole cover located in a shopping street, the highway authority had failed to show by its system of purely visual inspections that it had taken such care as in all the circumstances was reasonably required to secure that the manhole cover was not dangerous.

West Bromich Albion Football Club Ltd v El-Safty, CA (Civ Div) 11/10/2006

Wed, 11 Oct 2006 00:00:00 GMT

There was no contract, and it was not necessary to imply one, under which an orthopaedic surgeon owed a duty to a football club to advise the club in respect of his treatment of one its players and about its financial affairs, and the surgeon owed no duty of care in tort in respect of any foreseeable economic loss to the club resulting from the negligent treatment.

Andrew Godfrey v. Quarriers [2006] CSOH 160

Tue, 10 Oct 2006 00:00:00 GMT

Procedure Roll - Prescription

Stephen Findleton v. Quarriers [2006] CSOH 157

Tue, 10 Oct 2006 00:00:00 GMT

Procedure Roll - Prescription

David Whelan v. Quarriers & John Porteous [2006] CSOH 159

Tue, 10 Oct 2006 00:00:00 GMT

Procedure Roll - Prescription

Andrew Godfrey v. Quarriers [2006] CSOH 160

Tue, 10 Oct 2006 00:00:00 GMT

Procedure Roll - Prescription

Colin Findleton v. Quarriers [2006] CSOH 161

Tue, 10 Oct 2006 00:00:00 GMT

Procedure Roll - Prescription

George King v. Quarriers [2006] CSOH 158

Tue, 10 Oct 2006 00:00:00 GMT

Procedure Roll - Prescription

Moira King v. Quarriers [2006] CSOH 156

Tue, 10 Oct 2006 00:00:00 GMT

Procedure Roll - Prescription

Moira King v. Quarriers [2006] CSOH 156

Tue, 10 Oct 2006 00:00:00 GMT

Procedure Roll - Prescription

Stephen Findleton v. Quarriers [2006] CSOH 157

Tue, 10 Oct 2006 00:00:00 GMT

Procedure Roll - Prescription

Colin Findleton v. Quarriers [2006] CSOH 161

Tue, 10 Oct 2006 00:00:00 GMT

Procedure Roll - Prescription

George King v. Quarriers [2006] CSOH 158

Tue, 10 Oct 2006 00:00:00 GMT

Procedure Roll - Prescription

David Whelan v. Quarriers & John Porteous [2006] CSOH 159

Tue, 10 Oct 2006 00:00:00 GMT

Procedure Roll - Prescription

Casey v Cartwright [2006] EWCA Civ 1280 (05 October 2006)

Thu, 05 Oct 2006 00:00:00 GMT

The Court of Appeal gave guidance on the procedure to be followed where a defendant in a low-velocity road traffic claim sought to adduce his own expert evidence on causation.

R v Trafford Healthcare NHS Trust, High Ct (Admin) 22/9/2006

Fri, 22 Sep 2006 00:00:00 GMT

Unlawful decision to close two inpatient wards. The decision of the defendant NHS trust to close two inpatient wards in a hospital that it ran was unlawful as the decision had been reached without any public consultation in breach of the Health and Social Care Act 2001 s.11.

James Walsh v. TNT UK Limited [2006] CSOH 149

Tue, 19 Sep 2006 00:00:00 GMT

Proof - Personal Injury Action

Clark v The Chief Constable of Essex Police [2006] EWHC 2290 (QB) (18 September 2006)

Mon, 18 Sep 2006 00:00:00 GMT

Employers’ Liability – Injury must be foreseeable. Where a claim in negligence against a defendant was based upon the principle of vicarious liability for the acts and omissions of a defendant's employees, and upon alleged breaches of duties of care and other duties owed by a defendant to a claimant, and where, in that claim, it was alleged that those for whom the defendant was vicariously liable had deliberately bullied or victimised the claimant but had unintentionally inflicted psychological injury, it was necessary to the success of the claim that the injury should have been foreseeable.

Smith v North Eastern Derbyshire PCT & Anr, CA (Civ Div) 23/8/2006; Times, September 11, 2006

Mon, 11 Sep 2006 00:00:00 GMT

Statutory duty to consult patients. A primary care trust could not avoid or mitigate the performance of its statutory duty to consult patients, pursuant to the Health and Social Care Act 2001 s.11, by suggesting an approach to a patients' forum. The engagement of a patients' forum did not amount to an alternative remedy such as to deny a claimant relief in judicial review proceedings.

White v Revell Rev 1 [2006] EWHC 90054 (Costs) (08 September 2006)

Fri, 08 Sep 2006 00:00:00 GMT

LEGAL SERVICE & FUNDING. Enforceability of CFA – Adequacy of BTE enquiries. Conditional fee agreements made between the claimant and his solicitors were enforceable and complied with the Conditional Fee Agreements Regulations 2000 as the solicitors had made adequate enquiries as to the existence of before-the-event insurance policies that might have been held by the claimant and had sufficiently advised him.

Lewis John Anderson v. Robert Kelman t/a Ailsa Wood Products [2006] CSOH 135

Tue, 05 Sep 2006 00:00:00 GMT

Personal Injury Action - Opposed Motion for Jury T

Morag Jean Holtes v. Aberdeenshire Council [2006] CSOH 134

Tue, 05 Sep 2006 00:00:00 GMT

Proof - Reparation

Sinead Grade Dodds (AP) v. Baron Davidson of Glen Cova, QC, The Advocate General for Scotland as Representing the MOD [2006] CSOH NUMBER 132

Tue, 29 Aug 2006 00:00:00 GMT

Proof - Reparation

Smith v North Eastern Derbyshire Primary Care Trust & Anr, CA (Civ Div) 23/8/2006

Wed, 23 Aug 2006 00:00:00 GMT

A primary care trust could not avoid or mitigate the performance of its statutory duty to consult patients, pursuant to the Health and Social Care Act 2001 s.11, by suggesting an approach to a patients' forum. The engagement of a patients' forum did not amount to an alternative remedy such as to deny a claimant relief in judicial review proceedings.

Brian Rodgers v. Colin Hutton Group Coachworks Ltd [2006] CSOH 126

Wed, 16 Aug 2006 00:00:00 GMT

Proof - Personal Injury Action - Causation

Andrew Logie as Guardian of the Child Wayne Drew Logie v. Fife Council [2006] CSOH 127

Wed, 16 Aug 2006 00:00:00 GMT

Personal Injury Action - Opposed Motion for Issues

Gatfield v Whitbread Plc, High Ct, 9/8/2006

Wed, 09 Aug 2006 00:00:00 GMT

A claimant who began to suffer from epilepsy six weeks after an accident at work in which he was hit on the head had failed to establish that it had been caused by the accident because the evidence did not show that he had suffered a brain injury that would have increased his risk of suffering from the condition.

Green v DB Group Services (UK) Ltd. [2006] EWHC 1898 (QB) (01 August 2006)

Tue, 01 Aug 2006 00:00:00 GMT

A former employee was entitled to damages for psychiatric injury and consequential loss and damage that she suffered as a result of harassment and bullying by her fellow employees. The behaviour of the fellow employees was within the scope of their employment, and closely connected to their work to give rise to vicarious liability, and in any event the employer was in breach of its duty of care to the employee in failing to take any adequate steps to protect her from such behaviour.

Paul McKnight v. Corus Construction [2006] CSOH 116

Tue, 01 Aug 2006 00:00:00 GMT

Proof - Reparation Accident at Work

Newman v Laver & Anor [2006] EWCA Civ 1135 (31 July 2006)

Mon, 31 Jul 2006 00:00:00 GMT

In making an award of damages for personal injury following a road traffic accident the judge had been entitled to find on the evidence that the claimant's post concussional syndrome would ameliorate over time and that the claimant had failed to prove that he was suffering from a rare form of double vision.

Sayers v Cambridgeshire County Council [2006] EWHC 2029 (QB) (31 July 2006)

Mon, 31 Jul 2006 00:00:00 GMT

On the evidence, the psychiatric injury suffered by an employee had not been reasonably foreseeable to the local authority employer and there had been no justification for imposing a cause of action for breach of statutory duty in respect of the Working Time Regulations 1998 reg.4.

Flora v Wakom (Heathrow) Ltd [2006] EWCA Civ 1103 (28 July 2006)

Fri, 28 Jul 2006 00:00:00 GMT

The power under the Damages Act 1996 s.2(9) to depart from the default position under s.2(8) of making a periodical payments order subject to the retail prices index could be exercised as the court considered appropriate and fair in all the circumstances, without the need to find exceptional circumstances.

John Quigley (AP) v. Hart Builders (Edinburgh) Limited [2006] CSOH 118

Fri, 28 Jul 2006 00:00:00 GMT

Proof - Reparation - Accident at work

Ahsan v University Hospitals Leicester NHS Trust, High Ct, 28/7/2006

Fri, 28 Jul 2006 00:00:00 GMT

Religious Beliefs and Care. The religious beliefs of an individual should not be disregarded in deciding how that person should be cared for in the event of supervening mental incapacity, and the wishes of the family should be taken into account.

Gaynor v Central West London Buses Ltd. [2006] EWCA Civ 1120 (28 July 2006)

Fri, 28 Jul 2006 00:00:00 GMT

Legal Services & Funding: A solicitors' retainer letter that stated that no charge would be made for pre-litigation services if the opponent disputed the claim and the client decided not to pursue it, was not a conditional fee agreement because those services were not "litigation services" within the meaning of the Courts and Legal Services Act 1990 s.58(2)(a).

PRP Architects v Reid [2006] EWCA Civ 1119 (28 July 2006)

Thu, 27 Jul 2006 00:00:00 GMT

An employee leaving work at the end of the day and using a lift located in the common part of a shared office building where she worked had been using it "at work" within the meaning of the Provision and Use of Work Equipment Regulations 1998 reg.3 so that her employers were liable in damages for personal injury suffered by the employee due to the lift being defective.

Moreton, R (on the application of) v Medical Defence Union Ltd. [2006] EWHC 1948 (Admin) (26 July 2006)

Wed, 26 Jul 2006 00:00:00 GMT

The Medical Defence Union was not amenable to judicial review. It could neither be said to be a "public body" nor did it exercise a "public function" in a respect that affected the claimant.

Regent Leisuretime Ltd. v Amos [2006] EWCA Civ 1184 (21 July 2006)

Fri, 21 Jul 2006 00:00:00 GMT

There was no such thing as a general retainer imposing a duty on a solicitor to consider all aspects of a client's interest whenever the solicitor was consulted. It was important to bear in mind the limits of what would be expected of a solicitor: he was not bound to know all the law, and would be entitled to rely on the advice of experienced and specialist counsel.

Toth v Jarman [2006] EWCA Civ 1028 (19 July 2006)

Wed, 19 Jul 2006 00:00:00 GMT

CIVIL EVIDENCE. A party who wished to call an expert with a potential conflict of interest should disclose details of that conflict at as early a stage in the proceedings as possible.

Majrowski v Guy’s & St. Thomas’ NHS Trust, HL ( Lord Nicholls of Birkenhead, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood) 12/7/2006; Times, July 17, 2006; Independent, July 14, 2006

Fri, 14 Jul 2006 00:00:00 GMT

An employer could be vicariously liable in damages under the Protection from Harassment Act 1997 s.3 for a course of conduct by one of its employees that amounted to harassment in breach of s.1 of that Act.

R v Secretary of State for Work & Pensions, High Ct (Admin) 13/7/2006

Thu, 13 Jul 2006 00:00:00 GMT

A homeless person did not have a status within the meaning of the European Convention on Human Rights 1950 Art.14 and the cessation of payments of a disability premium whilst he was without accommodation was not unlawful.

Ronan v Sainsbury's Supermarkets Ltd & Anor [2006] EWCA Civ 1074 (06 July 2006)

Thu, 06 Jul 2006 00:00:00 GMT

In a quantification of damages for personal injury, a claimant's decision not to abandon his studies towards a qualification upon which he had embarked could not be characterised as an unreasonable failure to mitigate his loss. Further, Blamire and Smith v Manchester awards were distinct and any awards under those bases had to be assessed separately.

Harding v. Wealands [2006] UKHL 32 (5 July 2006)

Wed, 05 Jul 2006 00:00:00 GMT

The English court dealing with a personal injury claim in respect of a road traffic accident that occurred in New South Wales had to apply English law to the assessment of damages as a matter of procedure to be regulated by the law of the forum under the Private International Law (Miscellaneous Provisions) Act 1995 s.14 and was not to apply the procedural provisions of the New South Wales Motor Accident Compensation Act 1999 limiting the amount of damages recoverable.

Sutradhar v. Natural Environment Research Council [2006] UKHL 33 (5 July 2006)

Wed, 05 Jul 2006 00:00:00 GMT

A Bangladeshi suffering from arsenical poisoning had no reasonable prospect of success in an action against the Natural Environment Research Council for negligence arising from a geological report that, according to him, had induced the health authorities in Bangladesh not to take steps that would have ensured that his drinking water was not contaminated by arsenic.

Daniels v Commissioner of Police of the Metropolis, High Ct, 5/7/2006

Wed, 05 Jul 2006 00:00:00 GMT

In cases of harassment under the Protection from Harassment Act 1997 the claimant had to prove a course of conduct by either an individual employee or a group of employees in order to establish the primary liability for which the employer would be vicariously liable.

William Anderson v. Christian Salvesen plc [2006] CSOH 101

Tue, 04 Jul 2006 00:00:00 GMT

Personal Injury Acrtion - Opposed Motion for Proof

William Anderson v. Christian Salvesen plc [2006] CSOH 101

Tue, 04 Jul 2006 00:00:00 GMT

Personal Injury Acrtion - Opposed Motion for Proof

Kiani v Land Rover Ltd & Ors [2006] EWCA Civ 880 (28 June 2006)

Wed, 28 Jun 2006 00:00:00 GMT

It was open for the court, after finding that accidental death was possible, to discount the less likely possibility of suicide, thus finding on the balance of probabilities that accidental death had occurred.

Manley v Commissioner of Police for the Metropolis [2006] EWCA Civ 879 (28 June 2006)

Wed, 28 Jun 2006 00:00:00 GMT

An award of basic damages for malicious prosecution below the range recommended by the judge and the failure to award aggravated damages were decisions that no reasonable jury could have come to in the circumstances.

Clark v Bowlt [2006] EWCA Civ 978 (26 June 2006)

Mon, 26 Jun 2006 00:00:00 GMT

STRICT LIABILITY – ANIMALS. The owner and rider of a horse that collided with a motorist and caused an accident was not strictly liable under the Animals Act 1971 s.2(2) because the risk of damage was not due to a characteristic normally found in horses in the particular circumstances.

The Football League Ltd v Edge Ellison (a firm) [2006] EWHC 1462 (Ch) (23 June 2006)

Fri, 23 Jun 2006 00:00:00 GMT

A solicitors' firm did not owe a general implied duty under its retainer to seek the instructions of a committee, which had been established to negotiate licences of media rights, as to a bidder's solvency or as to whether requests were to be made for parent company guarantees. However, the firm had, in the circumstances, breached its duty of care by failing to take instructions in respect of a financial paragraph in a bid document and by not seeking to negotiate the inclusion of guarantees in an agreement. Nominal damages were awarded as neither breach had caused substantial damage.

Shinedean Ltd v Alldown Demolition (London) Ltd & Anor [2006] EWCA Civ 939 (20 June 2006)

Tue, 20 Jun 2006 00:00:00 GMT

Where a public liability all risks insurance policy contained a condition precedent that the insured provide the insurer with all documentation in relation to any claim, it was implied in that policy that compliance had to be within a reasonable time. There was no absolute principle that the question of whether the insurer was prejudiced by any delay should be excluded or included when assessing reasonable time.

Ehrari v Curry & Anr, High Ct, 9/6/2006

Fri, 09 Jun 2006 00:00:00 GMT

ROAD TRAFFIC ACCIDENT – APPORTIONMENT. Where the main cause of the claimant's accident was her walking into the road without first looking for oncoming traffic she bore 70 per cent of the responsibility for the accident. The defendant truck driver's momentary inattention to the road ahead of him meant he was only partly responsible for the accident and the claimant's injuries.

Shine v Tower Hamlets [2006] EWCA Civ 852 (09 June 2006)

Fri, 09 Jun 2006 00:00:00 GMT

The Highways Act 1980 s.66 did not impose any liability on a highway authority for personal injuries caused by defective barriers, including bollards, on a public highway. Liability for personal injuries caused by such defective barriers arose in negligence.

Chambers v Excel Logistics Ltd [2006] EWCA Civ 1031 (07 June 2006)

Wed, 07 Jun 2006 00:00:00 GMT

Where there was doubt as to the interpretation of medical evidence in a trial to assess damages for past and future loss of earnings in a personal injury claim it was vital to the claim that the evidence was clarified, and in order to do so the matter would be remitted for reconsideration.

Yaqoob & Anor v Royal Insurance (UK) Ltd [2006] EWCA Civ 885 (25 May 2006)

Thu, 25 May 2006 00:00:00 GMT

Failure to consider issue of Claimant’s credibility. A trial judge's failure to deal with issues of a claimant's credibility had vitiated the judge's decision that the claimant had proved on the balance of probabilities that a fire that damaged his business premises was not set by him or at his connivance.

Daw v Intel Corporation (UK) Ltd. [2006] EWCA Civ 1188 (24 July 2006)

Tue, 23 May 2006 00:00:00 GMT

An employer was negligent in failing to take steps to obviate the risk of an employee, who complained of being overworked and stressed and who had a history of depression, from suffering from a nervous breakdown.

R v H, CA (Crim Div) 22/5/2006

Mon, 22 May 2006 00:00:00 GMT

Health and Safety at Work etc. Act 1974. A defendant to a charge under the Health and Safety at Work etc. Act 1974 s.2, s.3 or s.4, in asking the jury to consider whether it had established that it had done all that was reasonably practicable, could not be prevented from adducing evidence in support of its case that it had taken all reasonable steps to eliminate the likelihood of the relevant risk eventuating.

Woolley v Essex CC, CA (Civ Div) 17/5/2006

Wed, 17 May 2006 00:00:00 GMT

Assessment of future loss of earnings claim. Where a judge was assessing an award for future loss of earnings in a personal injury claim, and it was clear that an expert who was instructed to give details of wage levels in the claimant's profession had made an inadvertent mistake in his conclusion, it was incumbent upon the judge to analyse the report and to assess whether the expert had reached the correct conclusion.

Brown v MOD, CA (Civ Div) 10/5/2006

Wed, 10 May 2006 00:00:00 GMT

Assessment of loss of pension rights. The county court judge had failed to apply the correct principles when assessing the claimant's entitlement to damages for loss of pension rights and accordingly a fresh assessment was required.

Re K (A Child) High Ct (Fam Div) 9/5/2006

Tue, 09 May 2006 00:00:00 GMT

Withdrawal of life-saving treatment from child with severe neuromuscular disorder. The withdrawal of life-prolonging treatment was in the best interests of a five-month-old child with a severe neuromuscular disorder who was experiencing a pitiful existence in hospital.

Smith v S Notaro Ltd & Anr, CA (Civ Div) 5/5/2006

Fri, 05 May 2006 00:00:00 GMT

Manual Handling Operations Regulations 1992 reg.4. Whilst the judge had been right to hold that an employer had breached the Manual Handling Operations Regulations 1992 reg.4 as it had not given an employee training on how to carry heavy loads over uneven surfaces, the apportionment of damages had not represented the justice of the case as it was the owner of the building site where the accident occurred who was responsible for the unsafe walkway.

Whiteleys (A Firm) v Trafalgar Consultancy Ltd [2006] EWCA Civ 503 (05 May 2006)

Fri, 05 May 2006 00:00:00 GMT

Recalculation of damages for breach of professional duty. An award of damages for breach of professional duty was recalculated to put the victim of the breach in the position that it would have been in if the breach had not occurred.

Peter Alastair Struthers-Wright v. Nevis Range Development Company PLC [2006] CSOH 68

Thu, 04 May 2006 00:00:00 GMT

Proof - Personal Injury Action

David Morrison v Whiteinch Demolition Ltd [2006] CSOH 67

Thu, 04 May 2006 00:00:00 GMT

Personal Injury Action - Additional Fee

Barker v Corus (UK) Plc, HL (Lord Hoffman, Lord Scott of Foscoite, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond) 3/5/2006; Times, May 4, 2006

Wed, 03 May 2006 00:00:00 GMT

Several liability of employers for negligent exposure to asbestos. Where employers were liable on the basis that they had negligently exposed an employee to asbestos and thereby created a material risk of mesothelioma which had eventuated, it would be fair that they should be severally liable only to the extent of the share of the risk created by their breach of duty.

Corbett v Bond Pearce (A Firm) High Ct (Ch D) 28/4/2006

Fri, 28 Apr 2006 00:00:00 GMT

Exceptional case of recovering costs as part of damages awarded. It would only be in an exceptional case that costs, ordered to be paid by the claimant to the defendant in the course of a negligence claim by the former against the latter, could be recovered by the claimant from the defendant as part of the damages awarded to the claimant against the defendant in the same claim.

Smith v Phillip Morris Companies Inc. & Ors [2006] EWHC 916 (QB) (27 April 2006) (

Thu, 27 Apr 2006 00:00:00 GMT

Evidence (proceedings in Other Jurisdictions) Act 1975. An order under the Evidence (Proceedings in Other Jurisdictions) Act 1975 for oral examination of a non-party to proceedings in the United States of America was set aside where the letter of request seeking the order was couched in such wide terms that it amounted to an impermissible investigation and the letter of request could not properly be modified or made subject to conditions.

A v Hoare, CA (Civ Div) 12/4/2006

Wed, 12 Apr 2006 00:00:00 GMT

Damages arising from intentional sexual assault – Non-extendable 6 year limitation. The Court of Appeal was bound by the decision of the House of Lords in Stubbings v Webb (1993) AC 498 to hold that although most claims for damages for physical or psychiatric injury now had an extendable three-year limitation period from the date of the claimant's knowledge, claims for damages arising out of an intentional sexual assault had a non-extendable six-year limitation period from the date of the assault.

Blackburn Rovers Football and Athletic Club Plc v Avon Insurance Plc & Ors [2006] EWHC 840 (QB) (12 April 2006)

Wed, 12 Apr 2006 00:00:00 GMT

Failure to establish causation. A football club failed to show that the injury sustained by one of its players in training had solely and independently of any other cause occasioned the player's permanent total disablement.

R v Swindon NHS PCT & Anr, CA (Civ Div) 12/4/2006

Wed, 12 Apr 2006 00:00:00 GMT

Health & PCT policy refusing funding for treatment with an unlicensed drug. The policy of a primary care trust to refuse funding for treatment with an unlicensed drug save where exceptional personal or clinical circumstances could be shown was irrational, as the policy could not be rationally explained.

Shepherds Investments Ltd & Anr v Walters & Ors, High Ct (Ch D) 12/4/2006

Wed, 12 Apr 2006 00:00:00 GMT

Damages for breach of contract and misuse of confidential information. The former directors of the claimant investment companies were in breach of their fiduciary duties and in breach of their obligation of loyalty by virtue of the steps they had taken prior to their resignation to promote the establishment of a competing business.

Tesco Stores Ltd & Anr v Pollard & Anr, CA (Civ Div) 12/4/2006

Wed, 12 Apr 2006 00:00:00 GMT

Consumer Protection Act 1987. The test as to whether a product had a defect under the Consumer Protection Act 1987 was what persons generally were entitled to expect. In the instant case a consumer was generally entitled to expect that a bottle of dishwasher powder that had a child resistant closure cap would be more difficult to open than if it had an ordinary screw top, and since the bottle was more difficult to open than an ordinary screw top there was no breach of the 1987 Act.

McMinn v McMinn & Anor [2006] EWHC 827 (QB) (11 April 2006)

Tue, 11 Apr 2006 00:00:00 GMT

Damages, consent and liability in the context of a road traffic accident claim

Davies v Molyneux, CA (Civ Div) 7/4/2006

Fri, 07 Apr 2006 00:00:00 GMT

Award of damages deemed too low in the circumstances. In a personal injury claim for future loss of earnings, where the judge found that the claimant was not malingering and his prognosis was poor, the award he made was too low.

Folks v Faizey [2006] EWCA Civ 381 (06 April 2006)

Thu, 06 Apr 2006 00:00:00 GMT

Appointment of Litigation Friend. A judge had erred in requiring the trial of a preliminary issue as to whether the facts justified the appointment of a litigation friend for the appellant, as the application to appoint a litigation friend was a bona fide one supported by the evidence.

Hague v Rexam Glass (Barnsley) Ltd. [2006] EWCA Civ 377 (05 April 2006)

Wed, 05 Apr 2006 00:00:00 GMT

A trial judge had not erred by ruling on a preliminary issue as to diagnosis of hand arm vibration syndrome without hearing oral medical evidence where it was clear to the judge, having heard the claimant's oral evidence, that he did not have any symptoms of the syndrome.

Westgate v Secretary of State for Work and Pensions [2006] EWCA Civ 725 (05 April 2006)

Wed, 05 Apr 2006 00:00:00 GMT

Employers' Liability & Health & Safety at Work. For the purposes of the Social Security (Prescribed Diseases) Regulations 1985 Sch.1 para 1 A11(c) a "metal working tool" was a tool that worked metal and was not a tool that worked with metal.

Corr v IBC Vehicles [2006] EWCA Civ 331 (31 March 2006)

Fri, 31 Mar 2006 00:00:00 GMT

Reasonable foreseeability – Fatal Accident Claim. To succeed in a claim under the Fatal Accidents Act 1976 in respect of the death of a person who had been injured in a factory accident, became depressed and then committed suicide, it did not have to be shown that the suicide was reasonably foreseeable as a separate kind of damage.

Watkins v Home Office & Ors [2006] UKHL 17 (29 March 2006)

Wed, 29 Mar 2006 00:00:00 GMT

Misfeasance in Public Office – Not actionable without proof of material damage

Gorne v Scales & Ors [2006] EWCA Civ 311 (29 March 2006)

Wed, 29 Mar 2006 00:00:00 GMT

Value of confidential information. A judgment on an inquiry as to damages suffered by a partner by reason of misuse by former partners of confidential information following the dissolution of the partnership was set aside where the master had misdirected himself as to the correct method of valuing the confidential information.

Harland & Wolff Plc & Anor v McIntyre [2006] EWCA Civ 287 (28 March 2006)

Tue, 28 Mar 2006 00:00:00 GMT

Fatal Accident Claim. A termination of service payment made to the deceased's estate under a provident fund scheme did not prevent the deceased's widow from recovering Fatal Accidents Act damages in respect of her husband's expectation of receiving retirement benefits from that fund.

French & Ors v Chief Constable of Sussex, CA (Civ Div) 28/3/2006

Mon, 27 Mar 2006 23:00:00 GMT

Claims struck out as bound to fail on grounds of causation and remoteness:Claims by police officers for psychiatric injuries allegedly suffered as a result of a fatal shooting, which they had not witnessed, and which had led to criminal and disciplinary proceedings against them that had led to stress and the injuries complained of, were struck out on the basis that they were bound to fail on grounds of causation and remoteness.

Turner v Arriva North East Ltd [2006] EWCA Civ 410 (24 March 2006)

Fri, 24 Mar 2006 00:00:00 GMT

Road Traffic Accident. Negligence. A judge's conclusion on the evidence that a bus driver was not negligent when he hit and killed a pedestrian who had crossed the road when the pedestrian lights were red was fully justified.

Dudarec v Andrews & Ors [2006] EWCA Civ 256 (22 March 2006)

Wed, 22 Mar 2006 00:00:00 GMT

Damages assessing lost chance. Where evidence became available for the first time after the date of the original trial in an action seeking to assess damages for lost chance, unless the evidence related to some entirely new matter which could not have been known about at the date of the original trial, the facts as they had turned out should be taken into account by the trial judge.

Jolghazi & Anor v Ali [2006] EWCA Civ 510 (20 March 2006)

Mon, 20 Mar 2006 00:00:00 GMT

General damages – soft tissue injuries resolving within 15 months of RTA. A trial judge was entitled to have regard to all the material before him at trial and on the evidence his conclusion that an appellant's injuries sustained in a road traffic accident were soft tissue injuries that were resolved within 15 months of the accident was correct.

Skipper v Calderdale Metropolitan Borough Council & Anor [2006] EWCA Civ 238 (15 March 2006)

Wed, 15 Mar 2006 00:00:00 GMT

General damages for frustration, loss of self-confidence and loss of self-esteem

Home Office v Butchart [2006] EWCA Civ 239 (15 March 2006)

Wed, 15 Mar 2006 00:00:00 GMT

Psychiatric Injury. Duty to take reasonable steps to minimize risk of psychiatric harm. Where the Home Office knew or ought to have known that a remand prisoner was vulnerable to psychiatric harm the duty of care that was owed to that prisoner by the Home Office included a duty to take reasonable steps to minimise the risk of psychiatric harm.

McKeown v Ford Motor Co Ltd, CA (Civ Div) 9/3/2006

Thu, 09 Mar 2006 00:00:00 GMT

Correct assessment of damage. The judge had correctly assessed the level of damages for personal injury sustained during the course of employment.

Denton Hall Legal Services & Ors v Fifield [2006] EWCA Civ 169 (08 March 2006)

Wed, 08 Mar 2006 00:00:00 GMT

EMPLOYERS’ LIABILITY & HEALTH & SAFETY AT WORK Work-related injury – Health & Safety (Display Screen Equipment) Regulations 1992. The judge had been plainly right to find that a former secretary's upper limb disorder was a work-related injury, that her employer had been in breach of statutory duty under the Health and Safety (Display Screen Equipment) Regulations 1992, and that the injury had been caused by those breaches of statutory duty.

William McFarlane v. Corus Construction and Industrial [2006] CSOH 38

Tue, 07 Mar 2006 00:00:00 GMT

Civil Proof - Personal Injury Action

David v Honeywell Normalair -Garrett Ltd. [2006] EWHC 351 (QB) (02 March 2006)

Thu, 02 Mar 2006 00:00:00 GMT

Alleged negligent exposure to uranium. Where a claimant had failed to establish the presence of depleted uranium both in his body and in the defendant's workplace to support his claim for damages for personal injuries as a result of alleged exposure to uranium during the course of his employment, there was no basis for any suggestion that a breach of duty on the part of the defendant could be responsible for the claimant's illnesses. In any event, the claimant's claim was barred by a compromise reached by the parties in previous proceedings that had addressed substantially similar issues.

Louise Galbraith v. First Glasgow (NO.1) Limited [2006] CSOH 36

Wed, 01 Mar 2006 00:00:00 GMT

Personal Injury Action - Motion for Decree in term

Wells v Mutchmeats Ltd & Anor [2006] EWCA Civ 963 (28 February 2006)

Tue, 28 Feb 2006 00:00:00 GMT

Apportionment of liability – Slipping accident. In a claim for damages for personal injury, where it had been part of the appellant's job to check that trays of disinfectant used as footbaths were full, and the appellant had been aware the tray might slip if not full, the judge had been correct to make a finding of contributory negligence and to apportion the blame at 40 per cent where the tray had slipped when the appellant stood in it.

Craig Middleton V. C.P.S. 2000 Limited [2006] CSOH 33

Fri, 24 Feb 2006 00:00:00 GMT

Civil Proof on Quantum Following Accident at Work

Kyle Charles Toms and Another V. Royal Mail Group PLC [2006] CSOH 32

Fri, 24 Feb 2006 00:00:00 GMT

Civil Proof - Death of employee - Duty of Care?

C v D & Anr, CA (Civ Div) 23/2/2006

Thu, 23 Feb 2006 00:00:00 GMT

Psychiatric injury resulting from sexual abuse. A headmaster was liable under the principle in Wilkinson v Downton (1897) 2 QB 57 for psychiatric injury caused by an act of sexual abuse against a pupil that had not involved touching.

Maguire v Sefton Metropolitan Borough Council & Anor [2006] EWCA Civ 316 (23 February 2006)

Thu, 23 Feb 2006 00:00:00 GMT

Duties owed to contractual and non-contractual visitors. There was no distinction to be drawn between the liability owed under the Occupiers’ Liability Act 1957 to a contractual visitor and that owed to non-contractual visitors. Under the Act, a local authority had not been liable to a visitor to its leisure centre for injuries sustained in the course of using gymnasium equipment where the authority had entered into a maintenance service agreement with a third party for the maintenance of the equipment and that third party had recently carried out an inspection of the equipment.

Pakenahm-Walsh v Connell Residential & Anr, CA (Civ Div) 21/2/2006

Tue, 21 Feb 2006 00:00:00 GMT

Reasonable foreseeability of psychiatric injury. The trial judge been entitled to hold, on the evidence, that psychiatric injury suffered by an employee had not been reasonably foreseeable by the employer. The judge had had the essential factual issues, and the evidence relating to them, well in mind when reaching his conclusion.

Merelie v Newcastle Primary Care Trust [2006] EWHC 150 (QB) (21 February 2006)

Tue, 21 Feb 2006 00:00:00 GMT

Stress at work and harassment – foreseeability of injury. Where an employee had taken time off due to stress and made complaints of harassment against a colleague it should have been foreseeable to her employer that if the problems were not resolved she would suffer illness or injury.

Rigby v Wandsworth Borough Council [2006] EWHC 224 (QB) (17 February 2006)

Fri, 17 Feb 2006 00:00:00 GMT

Safe system of work for employees. On the balance of probabilities the defendant employer had not been negligent and had not been in breach of contract in failing to exercise reasonable care for an assistant head teacher's health and safety or in failing to operate a safe system of work.

WWF-World Wide Fund for Nature & Anor v World Wrestling Federation Entertainment Inc [2006] EWHC 184 (Ch) (16 February 2006)

Thu, 16 Feb 2006 00:00:00 GMT

Principles applicable to assessment of damages. The court set out the principles applicable to the assessment of damages under the principle in Wrotham Park Estate Co Ltd v Parkside Homes Ltd (1974) 1 WLR 798.

Brown v Grosvenor Building Contractors Ltd, CA (Civ Div) 10/2/2006

Fri, 10 Feb 2006 00:00:00 GMT

Reasonable foreseeability. Where an employee had been injured by an exploding aerosol can in a small fire that he had kicked to put out and the employer had not carried out any risk assessment in relation to fires, the employer could not be liable in negligence as the injury that occurred was not reasonably foreseeable.

Bolton Metropolitan Borough Council v Municipal Mutual Insurance Ltd. & Anor [2006] EWCA Civ 50 (06 February 2006)

Thu, 09 Feb 2006 00:00:00 GMT

Public Liability Insurance. The right public liability policy to respond in cases of asbestos-related disease was the policy in force at the time when the disease first occurred or manifested itself, rather than the policy in force at the time of the exposure to asbestos.

Freeman v Lockett [2006] EWHC 102 (QB) (07 February 2006)

Tue, 07 Feb 2006 00:00:00 GMT

No deduction from assessed damages to reflect possible future local authority care and direct payments. It was unnecessary and in any event impossible for the court to undertake the exercise of estimating what a claimant in a personal injury action might receive from a local authority by way of financial assistance towards her future care provision. Accordingly no deduction should be made from the award of damages to the claimant to reflect the possible continued availability to her of direct payments from the local authority.

Keown v Coventry Healthcare NHS Trust, CA (Civ Div) 2/2/2006

Thu, 02 Feb 2006 00:00:00 GMT

No Occupiers’ Liability – Claimant put himself at risk by indulging in a dangerous activity. An 11-year-old child who had climbed the outside of a fire escape was not at risk of suffering injury by reason of any danger due to the state of the premises within the Occupiers Liability Act 1984 s.1(1)(a) but had put himself at risk through his own choice to indulge in a dangerous activity. If there was a danger attributable to the state of the premises, thus giving rise to a potential duty, the content of the duty might vary according to whether the trespasser was a child or an adult, but until that point was reached, then in the general run of cases, the age of the trespasser was not relevant.

Littlefair, Williamson, & Beardall v Vinamul [2006] EWCA Civ 31 (01 February 2006)

Wed, 01 Feb 2006 00:00:00 GMT

Claims effectively compromised by agreement to discontinue. On the facts, the claimants' actions against their former employer for personal injury for chemical exposure had been validly compromised by an agreement made by telephone between the parties' solicitors that the claimants would discontinue their actions on the basis that each side should pay its own costs.

Rothwell v Chemical & Insultating Co Ltd & Anr, CA (Civ Div) 26/1/2006; Times, January 31, 2006; Independent, January 31, 2006

Tue, 31 Jan 2006 00:00:00 GMT

Pleural plaques litigation. Pleural plaques caused by negligent exposure to asbestos, which were of themselves insufficiently serious to give rise to a cause of action, did not found a claim in negligence because they carried a risk of subsequent significant injury and gave rise to consequent anxiety. A defendant who negligently exposed a claimant to the risk of contracting a disease was not liable for free-standing psychiatric injury caused by the fear of contracting the disease.

Walker v Chruszcz [2006] EWHC 64 (QB) (30 January 2006)

Mon, 30 Jan 2006 00:00:00 GMT

Failed professional negligence case – Legal advice to settle held reasonable. A claim for professional negligence against counsel and a solicitor failed where the basis for the advice given to their client to accept settlement of a personal injury action, namely that there was a serious risk that he would lose on liability as he would not make a reliable witness at trial, was reasonable and had been sufficiently identified and highlighted to the client.

Clough v First Choice Holidays and Flights Ltd. [2006] EWCA Civ 15 (25 January 2006)

Wed, 25 Jan 2006 00:00:00 GMT

Causation – Material contribution to damage distinguished from material contribution to risk of damage. In cases of personal injury involving a single, specific occasion of negligence the claimant was required to show that the defendant's negligence caused, or materially contributed to, the injury. The distinction between material contribution to damage and material contribution to the risk of damage had no application in those circumstances.

Plampin v Havering NHS Primary Care Trust [2006] EWHC 39 (QB) (25 January 2006)

Wed, 25 Jan 2006 00:00:00 GMT

Causation – Length of prosthetic leg. On the evidence it was clear that a prosthetic leg was not too long for the wearer and had not caused him to fall from a ladder.

Hawley v Luminar Leisure Ltd & Ors [2006] EWCA Civ 18 (24 January 2006)

Tue, 24 Jan 2006 00:00:00 GMT

Nightclub owner vicariously liable for acts of employee doorman. A nightclub was vicariously liable for the acts of a doorman supplied to it under an agreement for the provision of security services since the club had control not only over what the doorman did but how he was to do it. An assault by the doorman on a member of the public caused an "accidental" bodily injury for the purposes of the employer's public liability insurance.

Millar v Rooney & Ors [2006] NIQB 7 (19 January 2006)

Thu, 19 Jan 2006 00:00:00 GMT

Northern Ireland: First Defendant in breach of The Construction (Health and Safety at Work) Regulations 1996 No.6 with Claimant guilty of 30% contributory negligence. Second Defendant also liable on basis that he failed as an occupier to take reasonable steps to ensure First Defendant was a competent independent contractor. In particular he had not checked the insurance position of Mr Rooney. He had also failed to establish the defence under Section 2(4) of Occupiers Liability Act 1957. However, Claimant failed to establish that Third Defendant was a joint occupier.

Margaret Hughes v Grampian Country Food Group Limited

Wed, 18 Jan 2006 00:00:00 GMT

Civil Proof Before Answer Regulation 4 of the Manu

Therese Elliot v Mark Kerr

Mon, 16 Jan 2006 00:00:00 GMT

Civil Proof - Personal Injury Action

Daniel Moffat v The Advocate General for Scotland

Fri, 13 Jan 2006 00:00:00 GMT

Civil Proof Before Answer

Aerospace Publishing Ltd & Anor v Thames Water Utilities Ltd [2005] EWHC 2987 (QB) (13 January 2006)

Fri, 13 Jan 2006 00:00:00 GMT

Assessment of damages – Cost of restoration / replacement. Where the contents of substantial archives had been destroyed or damaged by flooding, the correct approach to assessing damages was to look at the cost of restoration and replacement rather than the market value, as the court found that the claimant had a genuine intention to reinstate the collection.

Cox v Transco Plc, CA ( Civ Div) 25/1/2006

Tue, 10 Jan 2006 00:00:00 GMT

Asbestosis. A trial judge was entitled to find that the respondent was exposed to dust containing asbestos fibres through the negligence of the appellant, which caused the respondent personal injury.

Hardy v Tesco Stores Plc, High Ct, 10/1/2006

Tue, 10 Jan 2006 00:00:00 GMT

Failed negligence claim – Injury not attributable to employment. On the evidence a claimant had not suffered any injury to her back that was attributable to her employment with the defendant supermarket.

Miller v Rooney & ors (Deeny J, H Ct NI [2006] NIQB 7

Sun, 01 Jan 2006 00:00:00 GMT

Kanu v King’s College, High Ct, 21/12/2005

Wed, 21 Dec 2005 00:00:00 GMT

Periodical Payments. It was appropriate to add the secretary of state as a party to proceedings for the approval of a settlement in a clinical negligence claim where the exercise of his discretion under the Health and Social Care (Community Health and Standards) Act 2003 s. 25(3) was an important consideration in resolving the issue of whether the court could be satisfied that continuity of periodical payments by an NHS Foundation Trust was reasonably secure.

Eliades & Ors v Lewis [2005] EWHC 2966 (QB) (20 December 2005)

Wed, 21 Dec 2005 00:00:00 GMT

Freezing Injunction and enforcement of Undertaking in damages. Where a freezing injunction had been discharged by consent, a court exercising its discretion as to whether to enforce the grantee's undertaking in damages had to determine whether the injunction had been wrongly granted or not, and had to consider all the facts of the case known at the time of the hearing to determine whether to exercise its discretion and award damages. There were special circumstances justifying a refusal to enforce the undertakings made by the grantee in the instant case.

Jassi v Gallagher & Anr, High Ct (Ch D) 21/12/2005

Wed, 21 Dec 2005 00:00:00 GMT

Failed professional negligence claim. Applying the standard in Moy v Pettman Smith (a firm) [2005] UKHL 7 (2005) 1 WLR 581, a barrister had not been negligent in the advice he had given to a tenant regarding the desirability of serving a protective notice under the Leasehold Reform Act 1967.

Batty v Danaher (Practising As Jack Danaher & Co) [2005] EWHC 2763 (QB) (20 December 2005)

Tue, 20 Dec 2005 00:00:00 GMT

Successful professional negligence claim – Lack of legal advice due to failure of office system. A claimant was awarded damages where his continued absence from work and subsequent dismissal from his employment was a result of the lack of the legal advice he had received due to the failure of his solicitor's office systems.

Hickman v Lapthorn & Anor [2005] EWHC 2714 (QB) (16 December 2005)

Fri, 16 Dec 2005 00:00:00 GMT

Successful professional negligence claim – Negligent advice leading to settlement. Both counsel and a solicitor were liable to their client for damages in a personal injury action as a result of their breaches of duty in failing to take into account the real possibility that their client would be incapable of future employment with the result that the client settled his claim for too low a sum.

Gosfield School Ltd v Birkett Long (A Firm) & Anr, High Ct, 16/12/2005

Fri, 16 Dec 2005 00:00:00 GMT

Failed professional negligence action – Settlement advice not negligent. In a procedurally complicated claim which was subject to the common law doctrine of privity of contract, legal representatives for a school were not found to have been negligent in advising settlement of a claim by parents of two pupils without expressly advising the school that such a settlement did not bar the pupils themselves from bringing their own claims in future.

Badger v MOD, High Ct, 16/12/2005

Fri, 16 Dec 2005 00:00:00 GMT

Contributory Negligence. A wife's claim for damages, following the death of her husband through exposure to asbestos was reduced by 20 per cent, as her husband had contributed to his own death by refusing to give up smoking, which also caused the lung cancer that killed him.

Yorkshire Electricity Distribution Plc v Telewest Ltd [2006] EWCA Civ 1418 (31 October 2006)

Thu, 15 Dec 2005 00:00:00 GMT

Negligence test cases. In test cases for compensation brought by the claimant company against the defendant utility company for damage caused to the claimant's ducting, it was deemed necessary for the defendant to inform the claimant of the need to remove a section of its ducting so that the claimant's employees could attend the site within a reasonable time to assess the situation and thus to prevent any unnecessary damage to its ducting and the cabling within it, or at least to monitor and direct the means and extent of any temporary removal.

West Bromwich Albion Football Club Ltd. v El-Safty [2005] EWHC 2866 (QB) (14 December 2005)

Wed, 14 Dec 2005 00:00:00 GMT

Negligent advice – Duty of Care & Proximity. A surgeon who treated a football player who had been referred to him by the football club's physiotherapist was not liable to the club in tort for giving negligent advice as there was insufficient proximity between the surgeon and the club.

Deep Vein Thrombosis and Air Travel Group Litigation [2005] UKHL 72 (8 December 2005)

Thu, 08 Dec 2005 00:00:00 GMT

International Aviation Law – Warsaw Convention on International Carriage by Air 1929. A passenger who suffers DVT on a normal international flight would not have suffered an "accident" within the meaning of Art.17 of the Warsaw Convention on International Carriage by Air 1929 and therefore could not succeed in a claim against the airline. An accident for the purposes of Art.17 requires an unexpected or unusual event or happening that is external to the passenger.

Diana Cheesman v. Internatiional Travel Service Limited

Thu, 08 Dec 2005 00:00:00 GMT

Personal Injury: Motion for Jury Trial:

Lillywhite & Anor v University College London Hospitals NHS Trust [2005] EWCA Civ 1466 (07 December 2005)

Wed, 07 Dec 2005 00:00:00 GMT

Negligent interpretation of untrasound. The court held that, although a consultant had carried out the ultrasound procedure carefully, he could not have exercised reasonable care and skill in concluding on the basis of that examination that the relevant fetal brain structures were present.

Goundry v Hepworth, CA (Civ Div) 30/11/2005

Wed, 30 Nov 2005 00:00:00 GMT

Driver’s duty of care to pedestrians. Where an orderly group of adult and child pedestrians had crossed to the middle of a road, it was held that an approaching motorist was not under a duty to stop to let the pedestrians finish crossing the road.

Burgess v Plymouth CC, CA (Civ Div) 30/11/2005

Wed, 30 Nov 2005 00:00:00 GMT

Where a school had in place a system to ensure that containers were stored away safely at the end of the day, but that system had not been followed with the result that a cleaner had fallen over a container suffering personal injury, the school was held liable under Reg.12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992.

Thompson v Bradford [2005] EWCA Civ 1439 (29 November 2005)

Tue, 29 Nov 2005 00:00:00 GMT

Negligent medical advice – Breach of Duty. In a claim by a patient for negligent medical advice, the important question was whether there had been a relevant breach of duty by the general practitioner; not simply whether there had been any fault by the general practitioner.

Brindley v Queen's Medical Centre University Hospital NHS Trust [2005] EWHC 2647 (QB) (24 November 2005)

Thu, 24 Nov 2005 00:00:00 GMT

No Breach of Duty – Proper advice given. The defendant NHS trust was not liable in negligence as it had properly advised the claimant, who was pregnant, of the risks of her baby being born with disabilities and had given her the option to terminate the pregnancy.

Watt v Tucker [2005] EWCA Civ 1420 (23 November 2005)

Wed, 23 Nov 2005 00:00:00 GMT

Court not bound to particular conclusion by expert evidence: In the context of an assessment of damages, a judge had not erred in reaching the conclusion that a reduction in a Claimant's working week was due to her personal injuries rather than personal choice, where evidence had been adduced from an expert supporting the Defendant's case, but the Defendant had resisted an adjournment to allow the expert to be called. It was held that, in those circumstances, in fairness, it was not open to the Defendant to suggest that the Court was bound by the expert's evidence alone to draw the conclusion that the Claimant was simply exercising a choice.

Montracon Ltd v Whalley [2005] EWCA Civ 1383 (21 November 2005)

Mon, 21 Nov 2005 00:00:00 GMT

Interpretation of ambiguous expert evidence: If what a witness had said was ambiguous or its interpretation was in doubt, it was for the judge to decide upon the correct interpretation. In a claim for damages for hand arm vibration syndrome the judge had been justified in interpreting the Claimant's evidence of his symptoms as he had done, and to reject the evidence from the medical experts.

Barry v Pugh [2005] EWHC 2555 (QB) (18 November 2005)

Fri, 18 Nov 2005 00:00:00 GMT

Road Traffic Accident – reasonable judgment of driver: Where a car towing a horse box and a motorcycle travelling in the opposite direction collided on a bend in a narrow lane, a decision by the car driver to accelerate in order to pull over onto the nearside grass verge to give the motorcyclist more room was one of a number of apparently reasonable choices, such that the car driver had no liability in negligence for personal injury suffered by the motorcyclist.

R v CICA Panel, High Ct, 18/11/2005

Fri, 18 Nov 2005 00:00:00 GMT

Criminal Injuries Compensation – unjustified refusal of award: In the circumstances, the refusal of the Criminal Injuries Compensation Panel to make an award of criminal injuries compensation was unjustified.

Graeme Morrison v. Andrea Maree Gardiner

Fri, 18 Nov 2005 00:00:00 GMT

RTA:

John Burke v. William McCafferty + Bernard Gough + Glasgow City Council

Fri, 18 Nov 2005 00:00:00 GMT

Hand Arm Vibration Syndrome:

Sam v Atkins [2005] EWCA Civ 1452 (09 November 2005)

Wed, 09 Nov 2005 00:00:00 GMT

Pedestrian – Driver: No duty of care?The driver did not owe a pedestrian a duty of care in circumstances where the pedestrian had walked out into the path of the driver's oncoming vehicle.

Brazier v Dolphin Fairway Ltd. [2005] EWCA Civ 1469 (04 November 2005)

Fri, 04 Nov 2005 00:00:00 GMT

Employer’s Liability – failure to demonstrate negligence: The claimant employee had failed to prove on the balance of probabilities that the defendant employer had been negligent in requiring him to lift pallets without providing him with a safe system of work.

Merseyside Fire and Civil Defence Authority v Bassie [2005] EWCA Civ 1474 (01 November 2005)

Tue, 01 Nov 2005 00:00:00 GMT

Workplace (Health, Safety & Welfare) Regulations 1992: On the evidence the judge was entitled to conclude that the appellant's injury had been caused by slipping on dust and that there had been a breach of regs. 5 and 12(3) of the Workplace (Health, Safety and Welfare) Regulations 1992.

Roche v Chief Constable of Greater Manchester Police [2005] EWCA Civ 1454 (25 October 2005)

Tue, 25 Oct 2005 00:00:00 GMT

County Courts Act 1984, s.70: The Court confirmed that s.70 of the County Courts Act 1984 does not preclude the Court of Appeal from considering a second judgment made by the county court judge where the second judgment only gave further reasons for his decision and did not change the order that was perfected at the time of the first judgment.

Wilson v Clements , CA (Civ Div) 19/10/2005

Wed, 19 Oct 2005 00:00:00 GMT

Expert Evidence: In a claim for personal injury after a road traffic accident, where the case turned on whose expert evidence was to be preferred, the judge had made no error in his preference of the defendant's expert evidence.

R v Secretary of State for Health, CA (Civ Div) 11/10/2005

Tue, 11 Oct 2005 00:00:00 GMT

National Health Service (Injury Benefits) Regulations 1995: The definition of "average remuneration" when calculating permanent injury benefit was most appropriately to be found under reg.2(1)(b)(iii) of the National Health Service (Injury Benefits) Regulations 1995.

Jean Craigie v. Lanarkshire Health Boad +Prospect Healthcare (Hairmyres) Limited

Tue, 30 Aug 2005 00:00:00 GMT

Accident At Work:

Joseph Platt as guardian of Anne McRory v. Rosina Isobel Dorothy Park and Others as executors nominate of the late Brian Park

Tue, 09 Aug 2005 00:00:00 GMT

Personal Injury/Procedure Roll Hearing on Defenders Preliminary Pleas:

X v Ministry of Defence, High Ct, 29/7/2005

Fri, 29 Jul 2005 00:00:00 GMT

Breach of duty and causation – Claims against the MOD: A former soldier was entitled to damages for pain, suffering and loss of amenity for breach of duty by an army Consultant Psychiatrist who failed to correctly diagnose and treat him for PTSD. However, it was held that he could not be compensated for the exacerbation of his symptoms which arose from the direct consequences of a criminal offence which he committed at a time when he ought to have been receiving treatment.

New v Ministry of Defence, High Ct, 29/7/2005

Fri, 29 Jul 2005 00:00:00 GMT

A former soldier who was suffering from PTSD was awarded general damages on the basis that if he had been referred for treatment when his psychiatric problems first began he would probably have been able to live a stable domestic and social life; to function sufficiently well to remain in the army, if he had wished to do so; and secure and hold remunerative employment, commensurate with his abilities when he left the army.

West v Ministry of Defence, High Ct, 29/7/2005

Fri, 29 Jul 2005 00:00:00 GMT

It was held that a former soldier who had suffered PTSD following an incident which occurred whilst he was on a tour of duty should be compensated for the degree to which his symptoms would have been ameliorated if he had been referred to the medical officer and had received treatment. However, he could not receive damages for the degree to which his condition was exacerbated by his subsequent conviction and imprisonment for an offence which, on the balance of probabilities, he would not have committed if he had received treatment.

Healy v Cosmosair Plc & Ors [2005] EWHC 1657 (QB) (28 July 2005)

Thu, 28 Jul 2005 00:00:00 GMT

Accident abroad where local safety requirements not complied with – Liability of package holiday operator: In the circumstances, a package holiday operator was not liable for spinal injuries sustained by a holidaymaker who fell into a swimming pool in Portugal. Although the Portuguese safety requirements had not been complied with in relation to the requisite non-slip material around the pool, it was not possible to conclude on a balance of probabilities that the Claimant had slipped on floor tiles in the relevant margin.

Brian Warwicker Partnership v Hok International Ltd [2005] EWCA Civ 962 (27 July 2005)

Wed, 27 Jul 2005 00:00:00 GMT

Civil Liability (Contribution) Act 1978: Acts and omissions that were not causative of loss could be taken into account for the purpose of assessing what, if any, contribution should be ordered pursuant to s.2 of the Civil Liability (Contribution) Act 1978. However, the role of non-causative factors should be a limited one.

Taefi v Russell [2005] EWCA Civ 901 (25 July 2005)

Mon, 25 Jul 2005 00:00:00 GMT

Civil Evidence and Professional Negligence: The Court held that the trial judge had been entitled to conclude on the basis of the evidence and his assessment of the credibility of the witnesses that there had been no breach of duty by a firm of solicitors in respect of the advice which they had given to their client in responding to a claim for unpaid monies.

Strachan v. The Gleaner Company Ltd & Anor (Jamaica) [2005] UKPC 33 (25 July 2005)

Mon, 25 Jul 2005 00:00:00 GMT

Judicature (Civil Procedure Code) Law (Jamacia): The Supreme Court of Jamaica was not deprived of jurisdiction to set aside a judgment in default of defence under s.258 of the Judicature (Civil Procedure Code) Law (Jamaica), even though damages had been subsequently assessed and a final judgment had been entered. Further, it was held that where an order to set aside a default judgment had been made without jurisdiction, a judge of a co-ordinate jurisdiction had no power to set it aside.

Harris v BRB (Residuary) Ltd & Anor [2005] EWCA Civ 900 (18 July 2005)

Mon, 18 Jul 2005 00:00:00 GMT

Noise at Work Regulations 1989 and employer’s common law duty of care: An employer who failed to provide practicable precautions, in the form of ear protection, to an employee who was consequently exposed to noise level in excess of 85 decibels regularly, over a significant period of time, was held to be in breach of the common law duty of care and the statutory duty contained in the Noise at Work Regulations 1989.

Stokes Pension Fund v Western Power Distribution (South West) Plc [2005] EWCA Civ 854 (11 July 2005)

Fri, 15 Jul 2005 00:00:00 GMT

Offer to settle money claim: An offer to settle a money claim should usually be treated as having the same effect as a payment into court, provided the offer is expressed in clear terms, stated to be open for acceptance for at least 21 days, where it is a genuine offer, where the Defendant is ‘good for the money’ when the offer is made and provided the offer is otherwise in accordance with the substance of a ‘Calderbank’ offer.

Re A (A Child) CA (Civ Div) 14/7/2005

Thu, 14 Jul 2005 00:00:00 GMT

Appeal of decision to adjourn appeal hearing: It was held that there was no basis on which an appeal could possibly succeed against a judge's order adjourning an appeal for a limited period to enable the appellant to be heard, but refusing an adjournment for a substantial period on medical grounds.

Butler & Anor v Thompson [2005] EWCA Civ 864 (13 July 2005)

Wed, 13 Jul 2005 00:00:00 GMT

Earning capacity: It was held to be appropriate to recalculate the level of damages awarded to a passenger of a vehicle who had sustained brain damage in a road traffic accident so as to take into account the finding that a higher level of earning capacity was possible. The Recorder was entitled to find that, on the balance of probabilities, the passenger's post-accident condition was caused by the brain damage which she had suffered as a result of the accident.

B, R (on the application of) v Camden London Borough Council & Ors [2005] EWHC 1366 (Admin) (05 July 2005)

Thu, 07 Jul 2005 00:00:00 GMT

Mental Health Act 1983 – Duty of after-care: Authorities with a duty of after-care under s.117 of the Mental Health Act 1983 were held not to be under an express duty to take steps until they were informed of the discharge of a detainee. Although practicality demanded that they should be under a duty in circumstances where a conditional discharge had been provisionally decided on, it was inconsistent with the lack of an express duty that they should have to monitor the condition of a patient before discharge, with a view to deciding whether to exercise discretion to arrange for services to be discharged.

John William Lennox v. Alfred Walker Bishop

Fri, 01 Jul 2005 00:00:00 GMT

Motion for Interim Damages:

Hunting Oilfield Services (UK) Limited v. Precision Powertrain (UK) Limited

Thu, 30 Jun 2005 23:00:00 GMT

Personal Injury/Third Party Liability:

A v The Archbishop of Birmingham [2005] EWHC 1361 (QB) (30 June 2005)

Thu, 30 Jun 2005 00:00:00 GMT

Sexual abuse: The Court assessed the Claimant's damages following the admission of liability by the Defendants. The case involved sexual abuse of a child by a Catholic priest over a period of 10 years, as a result of which the Claimant had suffered severe mental health problems.

Barros Mattos Junior v & Ors [2005] EWHC 1323 (Ch) (24 June 2005)

Fri, 24 Jun 2005 00:00:00 GMT

Amending Particulars of Claim: The Claimant was permitted to make amendments to the particulars of claim where the amendments did not add new causes of action, but were founded on the same legal and factual basis as the existing claim and the amendments raised matters which were arguable at trial.

Browning v Messrs Brachers [2005] EWCA Civ 753 (20 June 2005)

Mon, 20 Jun 2005 00:00:00 GMT

Assessing damages in ‘loss of a chance’ case: In a ‘loss of a chance’ case, it was held to be entirely legitimate for the judge to assess the amount of damages which would probably have been awarded at a notional trial, and to then discount the resulting sum to take into account the uncertainty on the issue of liability. However, having correctly identified the approach, the judge had failed to adhere to it in his treatment of the expert evidence and in his findings as to the claimants' alleged failure to mitigate their losses.

Heyward v Plymouth Hospital NHS Trust [2005] EWCA Crim 939 (20 June 2005)

Mon, 20 Jun 2005 00:00:00 GMT

Case Management decision limiting expert evidence: On the facts of the case, there was no criticism of a case management decision limiting the appellant to calling an occupational psychiatrist and, not allowing him to call an additional expert in the field of occupational psychology, since the real issues in the case were factual issues which an occupational psychologist would not have been able to assist with.

Susan Jemima Duncan Executor Dative of the Late Peter Grant Duncan v. Mark Martin Walshe + Whittle Movers Limited

Fri, 17 Jun 2005 00:00:00 GMT

Reclaiming Motion/ RTA:

London Borough of Islington v University College London Hospital NHS Trust [2005] EWCA Civ 596 (16 June 2005)

Thu, 16 Jun 2005 00:00:00 GMT

Recoverability of cost of local authority case from tortfeasor: A local authority that providing residential care to a person injured as a result of the negligence of an NHS trust could not recover the cost of providing such care directly from the trust in a claim for negligence, since the trust did not owe a duty of care to the local authority. The court noted that the difficulty in this case, accidental or not, was a matter for Parliament to resolve, and not the courts.

Vahidi v Fairstead House School Trust Ltd [2005] EWCA Civ 765 (09 June 2005)

Thu, 09 Jun 2005 00:00:00 GMT

Employers’ Liability: The appellant school teacher failed to establish that the respondent employer had neglected to provide her with sufficient support, thereby causing her to suffer severe clinical depression. On the evidence, her employer had provided all necessary support and had not been in breach of duty or contract.

Bolton Metropolitan BC v Municipal Mutual Insurance & Anr, High Ct, 2/6/2005

Thu, 02 Jun 2005 00:00:00 GMT

Mesothelioma: The inhalation of potentially harmful asbestos fibres was held not to be an "accidental bodily injury or illness" within the wording of certain public liability insurance policies, but the onset of mesothelioma when a cell became malignant was held to fall within this wording, and the public liability insurer was accordingly liable if mesothelioma occurred during the currency of the policy.

Shah v Gale [2005] EWHC 1087 (QB) (27 May 2005)

Fri, 27 May 2005 00:00:00 GMT

Participation in joint enterprise: The defendant was held liable in tort for having lent herself to a joint enterprise to inflict injury, having pointed to a house as being the home of a man whom others wished to attack. The defendant’s act of assistance could not be considered in isolation. Her knowledge that those she assisted intended to cause injury to the claimant’s husband made her part of the common design.

James v Butler [2005] EWCA Civ 1014 (17 May 2005)

Tue, 17 May 2005 00:00:00 GMT

The respondent general contractor's mistaken belief that hand-tightening a screw would secure a rafter was found to have caused that rafter to fall and injure the appellant. In the circumstances, the trial judge was not entitled to conclude that the respondent’s belief was reasonable, as there was no evidence to establish that the mistake in carrying out that simple task was excusable. The objective standard of care related to the type of activity being carried out, not the category of the actor, and it required nothing more than common sense to appreciate the risk of the rafter falling if it was not properly screwed.

Harding v Pub Estate Company Ltd [2005] EWCA Civ 553 (11 May 2005)

Wed, 11 May 2005 00:00:00 GMT

Negligence: Stress at Work & Circumstances putting Employer on notice as to risk of injury: It was critical for a judge in a claim for personal injury caused by stress at work to find the circumstances that put the employers on notice that if they did not take action it was reasonably foreseeable that the employee would suffer either a psychiatric breakdown or a heart attack.

Rugby Joinery UK Ltd v Whitfield [2005] EWCA Civ 561 (10 May 2005)

Tue, 10 May 2005 00:00:00 GMT

Vibration White Finger: Expert evidence & Assessment of Damages: The court gave guidance as to expert medical evidence required to assist in the assessment of damages in claims brought against employers by employees who have suffered from vibration white finger.

Coles v Greaves & Anr, CA (Civ Div) 10/05/2005

Tue, 10 May 2005 00:00:00 GMT

Damages – Claimant’s Credibility: It was held that the trial judge had been wrong in refusing to award damages for future losses on the basis that he had not found the appellant’s account of on-going symptoms credible, where the symptoms had in fact been supported by the experts' reports, including an expert instructed by the respondents, and the respondents themselves had never raised an issue as to the appellant's credibility.

EDWARD PRATT v. THE SCOTTISH MINISTERS

Wed, 04 May 2005 00:00:00 GMT

PERSONAL INJURY:

Brookes v South Yorkshire Passenger Transport Executive & Anor [2005] EWCA Civ 452 (28 April 2005)

Thu, 28 Apr 2005 00:00:00 GMT

Health & Safety At Work: It was held that the recorder had been wrong to find that an employer had negligently exposed an employee to harmful vibrations from hand-held vibration tools throughout the whole course of his employment. In fact, the exposure became negligent part-way through his service. However, where an employee did not develop symptoms of vibration white finger until some years after the date of negligence, he could properly argue that he should receive damages in full on the basis that he would never have developed any symptoms had it not been for the negligence of his employer.

Corr v IBC Vehicles Ltd, High Ct, 28/04/2005

Thu, 28 Apr 2005 00:00:00 GMT

Duty of Care: Foreseeability of Suicide: A widow was not entitled to claim damages from her late husband’s former employer where her husband had committed suicide during a depressive episode following an accident at work in which he had suffered personal injury. On the facts, it had not been reasonably foreseeable that the claimant’s husband would commit suicide and, as a matter of law, the reasonable foreseeability of the suicide had to be established both in respect of the duty of care and the recovery of damages.

Honnor v Lewis, High Ct, 27/04/2005

Wed, 27 Apr 2005 00:00:00 GMT

Negligence & Apportionment: Driver injuring child pedestrian: A driver, whose vehicle struck and injured a child pedestrian, had been negligent in not seeing the child on the kerb and/or crossing the road, and/or by not slowing down, and/or by not sounding his horn. However, on the facts, the child ought to have realised the need to look out carefully for traffic coming from his right on a busy road and his contributory negligence was assessed at 20%.

Askey v Wood [2005] EWCA Civ 574 (21 April 2005)

Thu, 21 Apr 2005 00:00:00 GMT

Apportionment of liability – Road traffic accident: The judge was correct to rule that liability was equal in an accident where a car had straddled the notional centre line of the road and a motorcycle had been traveling at excessive speed. Although not every judge would have found liability to be equal, the court could not say that the division of liability was not within the reasonable range of apportionment that was open to the trial judge.

Brooks v. Commissioner of Police for the Metropolis & Ors [2005] UKHL 24 (21 April 2005)

Thu, 21 Apr 2005 00:00:00 GMT

Victims of crime: A victim of crime and eye witness to a murder could not proceed in claiming damages for negligence against the police for his treatment by the police. The Claimant argued that the police owed a duty of care to: (i) take reasonable steps to assess whether B was a victim of crime and then to accord him reasonably appropriate protection, support, assistance and treatment if he was so assessed; (ii) take reasonable steps to afford B the protection, assistance and support commonly afforded to a key eye-witness to a serious crime of violence; and (iii) afford reasonable weight to the account that B gave and to act upon it accordingly. The House of Lords held that such duties should not be imposed upon the police since to do so would cut across the freedom of action they ought to have when investigating serious crime.

JD v. East Berkshire Community Health NHS Trust & Ors [2005] UKHL 23 (21 April 2005)

Thu, 21 Apr 2005 00:00:00 GMT

Duty of Care – Investigating suspected child abuse: It was held that health professionals responsible for investigating suspected child abuse did not owe a parent suspected of having committed the abuse a duty of care in damages if they carried out their investigation in good faith but carelessly.

Brooks v. Commissioner of Police for the Metropolis & Ors [2005] UKHL 24 (21 April 2005)

Thu, 21 Apr 2005 00:00:00 GMT

Duty of Care – Eyewitness to murder: The victim of a crime, who had been an eye-witness to a murder, was not permitted to proceed with a claim for damages in negligence against the police for the manner in which he had been treated by the police. Following Hill v Chief Constable of West Yorkshire (1988) 138 NLJ 126, there was no basis for sensibly imposing on the police any of the three legal duties asserted by the respondent, as those duties would cut across the freedom of action which the police ought to have when investigating crime.

Askey v Wood [2005] EWCA Civ 574 (21 April 2005)

Thu, 21 Apr 2005 00:00:00 GMT

Judgment upheld in respect of a finding that each party was equally responsible where car straddled notional white line and motorcycle had been speeding.

Smith v Ministry of Defence [2005] EWHC 682 (QB) (20 April 2005)

Mon, 18 Apr 2005 00:00:00 GMT

Limitation Act 1980, s.11(4) - Mesothelioma: The claimant widow and administratrix of the deceased’s estate was held to have discharged the burden of showing that it was equitable to disallow the limitation provision in s.11(4) of the Limitation Act 1980 in her claim for damages against the defendant for breach of common law or statutory duties owed to the deceased who died from mesothelioma.

Bretton v Hancock [2005] EWCA Civ 404 (13 April 2005)

Wed, 13 Apr 2005 00:00:00 GMT

The user of a car was not bound by s.143(1)(a) of the Road Traffic Act 1988 to insure against the liability of one tortfeaser to contribute with another tortfeaser in respect of their joint liability to the user. The duty to insure against third party loss is a duty owed to the public, not to oneself. The duty under s.143(1)(a) to insure against third party loss is limited by s.145(3)(a) to liability for death, personal injury or damage to property and not pure economic loss.

Lewis v Avidan Ltd (t/a High Meadow Nursing Home) [2005] EWCA Civ 670 (13 April 2005)

Wed, 13 Apr 2005 00:00:00 GMT

The mere fact of an unexpected flood did not mean that a floor was not in an efficient state, in efficient working order and in good repair for the purposes of reg.5(1) of the Workplace (Health, Safety and Welfare) Regulations 1992. ‘Workplace’, within the meaning of reg.2 is defined as meaning any premises or part of premises made available to any person as a place of work, including any place within the premises which people have access to while at work. While this definition would include the floor, on the facts, it was held not to include an enclosed pipe. Accordingly, the appellant's claim in respect of injuries sustained when she slipped and fell on a patch of water from a burst concealed pipe was dismissed.

Clough v P&O Trans European (Holdings) Ltd [2005] EWCA Civ 430 (07 April 2005)

Thu, 07 Apr 2005 00:00:00 GMT

Negligence: The judge's findings as to the cause of the accident which resulted in the claimant’s personal injury were not so far against the weight of the evidence to the contrary that they were clearly wrong or perverse, and he had was entitled to hold on a balance of probabilities that the claimant was responsible for his own injury.

Henry Wyse Rodger (AP) v. C & J Contracts Limited

Wed, 30 Mar 2005 00:00:00 GMT

Accident At Work:

Spink & Anor, R (on the application of) v London Borough of Wandsworth [2005] EWCA Civ 302 (18 March 2005)

Fri, 18 Mar 2005 00:00:00 GMT

Where a local authority provides services pursuant to its obligations under section 2 of the Chronically Sick and Disabled Persons Act 1970 by exercising functions under section 17 of the Children Act 1989, the provision of those services is subject to rights to charge which are conferred by section 29 of the 1989 Act. A local authority may properly decline to provide services to meet the needs of disabled children until it has been demonstrated that, having regard to their means, it is not reasonable to expect their parents to provide such services.

Land Rover North America Inc & Ors v Widh & Anr, High Ct

Fri, 18 Mar 2005 00:00:00 GMT

Mrs. Widh was rendered quadriplegic as a result of a road traffic accident when her Land Rover Discovery overturned in California. She and her husband brought a claim in California against the defendants who were the manufacturers of the Land Rover Discovery, alleging that they had negligently failed to provide a safety cage as part of the passenger compartment. The Court of Appeal refused the defendants’ application for permission to appeal against the Master’s decision, allowing letters of request obtained by the claimants from the court in California requesting oral testimony from two witnesses resident in the UK who were willing and able to give relevant evidence on the safety and suitability of the vehicle’s design. The defendants had failed to show that the Master was wrong in his ruling, had misapplied the law, erred in his assessment of the facts or exercised his discretion incorrectly in making the Order.

Davis v Stena Line Ltd [2005] EWHC 420 (QB) (17 March 2005)

Thu, 17 Mar 2005 00:00:00 GMT

Negligence & failure to carry out appropriate risk assessment or training: A ferry company was held liable in negligence for the death of a passenger who fell overboard and drowned, where the company had been aware of the near impossibility of retrieving a man overboard in rough seas and yet had failed to carry out any appropriate risk assessment or training of the captain and crew as to the available rescue options.

Devon County Council v Clarke [2005] EWCA Civ 266 (17 March 2005)

Thu, 17 Mar 2005 00:00:00 GMT

In determining whether or not there was a causal link between the negligence of an educational psychologist and the withdrawal of remedial teaching in respect of a dyslexic pupil, there is no requirement that the Judge must find that there would have been “a measurable difference" had the pupil attended a special school. The jurisdiction to award damages for negligence in education cases must not be seen as a charter for claimants to make allegations against all the professionals involved in a child's education secure in the knowledge that, provided they succeed in one allegation against one professional, they would recover all their costs from the local education authority.

Robert Robb v. Salamis (M &amI) Limitedp

Wed, 16 Mar 2005 00:00:00 GMT

Personal Injury: Appeal:

Lee Lyell v. Sun MIcrosystems Scotland BV + Manpower PLC

Tue, 15 Mar 2005 00:00:00 GMT

Personal Injury: Debate:

Young v Kent County Council, High Ct

Mon, 14 Mar 2005 00:00:00 GMT

The defendant county council was held to owe a duty of care under the Occupiers’ Liability Act 1984 to protect children from the known risk of climbing onto the roof of a school building. The state of the premises was inherently dangerous to a child and posed a foreseeable risk of injury to a non-visitor. The council breached its duty of care by failing to protect against that risk, despite the fact that action could have been taken by the low-cost solution of simply fencing off the area. The Court stated that had the claimant not been a child, his claim would have failed. The defendant council was held primarily liable and the claim was subject to a 50% deduction for contributory negligence.

Patel v Wright & Anor [2005] EWHC 347 (QB) (11 March 2005)

Fri, 11 Mar 2005 00:00:00 GMT

A claimant who had suffered traumatic brain injury at the age of 30 and required a 24-hour care package for the rest of his life, was entitled to the cost of video telephone call charges at current prices. In the absence of evidence as to what was likely to happen to charging rates for this relatively new technology in the future, it would be wrong to speculate whether the rates would go up or down.

Hajigeorgiou v Vasiliou [2005] EWCA Civ 236 (10 March 2005)

Thu, 10 Mar 2005 00:00:00 GMT

The Court does not have a power under CPR r.35.4 to give permission for the ‘instruction’ of experts. The trial judge was wrong to decide that the appellant needed permission to rely on the evidence of one expert, instead of the evidence of another expert originally instructed, under an Order granting permission to instruct ‘one expert’. The Order which was made should have been construed as giving permission to call and rely upon the evidence of a report from one expert in a particular field. The appellant did not need permission to rely upon the evidence of the second expert.

Fagan v Jeffers [2005] EWCA Civ 380 (09 March 2005)

Wed, 09 Mar 2005 00:00:00 GMT

Where opposing traffic had stopped in order to allow a motorist to turn right, the Court held that the motorist had to proceed with the utmost care and not proceed to cross the carriageway until he had satisfied himself that no traffic was likely to come up on the inside of the opposing traffic. In fact, the motorist had failed to take such care and the Court accepted that the trial judge had been entitled to find him 50% liable for the resulting collision with a motor scooter.

Breeze v Ahmad [2005] EWCA Civ 223 (08 March 2005)

Tue, 08 Mar 2005 00:00:00 GMT

The Court held that it would be unjust not to allow an appeal against the trial judge’s finding on causation where the judge had accepted one expert’s evidence on a particular issue, on the basis that his opinion was compellingly supported by recent medical literature, but where the judge had not seen copies of the literature and where the party whose expert was not preferred had not been given the opportunity to show the judge that the literature did not in fact support the other expert’s opinion. Accordingly, the matter was remitted for a re-trial.

Lewis v Six Continents, High Ct

Fri, 04 Mar 2005 00:00:00 GMT

The Court dismissed the claim, stating that there was no duty on the defendant hotel, pursuant to the Occupiers’ Liability Act 1957, to ensure that the height from the floor to the base of the window openings was 800mm. The ‘good practice’ of ensuring a height of 8000mm was merely a recommendation, not a requirement. Nor was the hotel under a duty to ensure that all windows above ground floor level had bars or ‘limiters’ to stop guests from falling out. To require such action would not be a reasonable precaution to impose upon householders or hoteliers.

Steven McFarlane v. Scottish Borders Council

Thu, 03 Mar 2005 00:00:00 GMT

Personal Injury Reclaiming Motion:

Russell v London Fire & Emergency Planning Authority & Ors, High Ct

Tue, 01 Mar 2005 00:00:00 GMT

Asbestos Claims: There was nothing in previous authority which prevents the court from entertaining an analysis of the question, if raised, of whether a straightforward ‘time-exposure’ calculation would do justice between the defendants in apportioning liability. If asked to do so, the court may adjust the effect of the time exposure approach to reflect any unusual features of the individual case. Any period that ought to be regarded as ‘de minimis’ would be excluded.

Tinsley v Sarkar [2005] EWHC 192 (QB) (18 February 2005)

Fri, 18 Feb 2005 00:00:00 GMT

Local Authority provision & funding of care – private ‘top ups’: An award of damages should not be made in respect of the cost of future care if the claimant himself would not incur the cost, because he will have the benefit of statutory provision of community care services. However, on the facts, the statutory body responsible for the provision and funding of future care was short of funds and resources and the regime offered was not one that the claimant would accept of that the court considered reasonable to meet his needs. In these circumstances, the court accepted that a ‘top up’ award should be made to cover the claimant’s reasonable needs. This reflected the court’s view that the Trust’s obligations were likely to increase in the future, without a commensurate increase in its already over-stretched resources and the defendant should not receive an undeserved windfall.

Puffett (a minor) v Hayfield [2005] EWCA Civ 1760 (16 December 2005)

Wed, 16 Feb 2005 00:00:00 GMT

Finding of Fact. As a matter of law, a finding that the excessive speed at which a car had been driven was causative of an accident resulting in personal injury could be made without indicating what was a safe speed.