Personal Injury

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.

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.

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.

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.

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.

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.