Defend or Liable?
Developments in Liability Claims
Alan Rogerson and Sharon Sykes
Defend or Liable?
Developments - MOJ Reforms
End of July 2013
Pre-Action Protocol for Low Value Personal Injury
Claims to include EL and PL claims of up to £25,000
(subject to certain exemptions and not ‘Disease’ claims)
fixed costs introduced (£900 / £1,600) within the protocol
EL investigation Period = 30 days
PL investigation Period = 40 days
Defend or Liable?
Developments - MOJ Reforms
End of July 2013
Failure to admit liability in full or to meet tight deadlines
will cause claim to drop out of portal and lose costs
Benefits
Predictive costs up to 6 times more expensive if case
drops out of portal and goes to a Hearing. The new base
costs for an EL claim worth £25,000 would increase
from £2,100 max to £13,430 if settled at a Hearing
Defend or Liable?
Developments - MOJ Reforms
Unintended Consequences?
• We should be prepared for an increase in letters of claim on EL and PL
claims after 30 April in the lead up to the protocol extension at the end of
July.
• We should also be prepared for Claimants' solicitors sending large
numbers of letters of claim on EL and PL claims (relating to pre-protocol
accidents) in July and August, in an attempt to tie up your/our claims
handlers and restrict their ability to handle claims in accordance with the
new protocol.
Defend or Liable?
Occupiers Liability
Section 2 (2):
“….a duty to take such care as in all
the circumstances of the case is
reasonable to see that the visitor will
be reasonably safe in using the
premises for the purposes for which
he is invited or permitted…”
“…an occupier must be prepared for
children to be less careful than
adults…”
Defend or Liable?
Occupiers Liability
Tomlinson v Congleton Borough Council 2003 UKHL 47
Lord Hoffman:
“even if swimming had not been prohibited and the Council had owed a duty
…that duty would not have required them to take any steps to prevent Mr
Tomlinson from diving or warning him against dangers which were perfectly
obvious.”
Defend or Liable?
Playgrounds - Examples
Alleged fast closing gate…..
• No faults (no other incidents recorded)
• Inspection regime fully documented (including RoSPA)
• Fully maintained
Defend or Liable?
Playgrounds
Zip wire – alleged defective matting caused ankle
fracture on landing
Defend or Liable?
Playgrounds
Defective Swing – who is to blame?
Defend or Liable?
Playgrounds
Defend or Liable?
Playgrounds
Defend or Liable?
Playgrounds
Defend or Liable?
Playgrounds
Extract from real Letter of Claim from Solicitors – claiming negligence because
their client sat on:
“….a donut shaped circular ring which quickly and unexpectedly rotated,
causing our client to become disorientated and made him lose his balance…”
Defend or Liable?
Playgrounds
Defend or Liable?
Evidence
Defend or Liable?
Concluding remarks
• Making the correct liability decision first time is crucial
• As is having the evidence to back up that decision
• Working in partnership is the key to meeting the tight timescales
of the new Protocol
• Legal Costs escalate if we make the wrong decision on liability or
argue over low levels of contributory negligence
Defend or Liable?