7 – 14 June 2012
Prepared by
Gemma Rush and Sophia Reed
Contents
Case of the week
Procedure
Quantum
Press
Legislation
Contact
To request cases or the full text of articles please contact:
Helen Cafferata
National Information Services Manager
helen.cafferata@blm-law.com
Case of the week
(1)
The claimant was employed by the defendant as a bus driver. A fellow employee, Mr
Kilbert (K) had taken the claimant’s arm and deliberately pushed him in the direction of an
approaching bus by way of a prank. The defendant denied any vicarious liability for the acts of K
and any negligence on the part of the bus driver. The allegations regarding the bus driver were
conceded and therefore the case centred around the extent of the defendant’s alleged vicarious
liability for the actions of K. The question to be considered was were the actions of K so closely
connected with the performance of his employment that it would be fair and just to impose liability
on the defendants as his employer.
It was held that although the incident occurred between two work colleagues and on work
premises, during work hours, while they were discussing matters relating to their working roles,
that it was not fair to hold the defendants liable. The court considered that a degree of verbal
banter could be seen as a reasonable incidence of that working environment, but pushing
someone into the path of an oncoming vehicle went well beyond standard workplace banter.
Such an incident had not occurred before and was unexpected. It was not appropriate behaviour
and it was held K was on a frolic of his own. The claim was dismissed.
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Berry v Arriva Cymru Ltd
Current Law Weekly, Vol 20 Issue 20, June 12 2012
Procedure
(2)
Mr Braganza (B) served as a chief engineer aboard a merchant vessel. B disappeared
during the voyage and it was the case of his widow, the claimant, that he went out on deck to
observe the weather conditions in preparation for the days work and fell overboard. She pursued
a claim in tort under the Fatal Accidents Act 1976 alleging B’s death was caused by the
negligence of the defendants and a claim was also made in contract claiming death benefits.
The defendants denied liability on the basis that B committed suicide by throwing himself
overboard so there could be no liability in tort and no benefits were payable as his death resulted
from his wilful act.
It was held that no finding could be made on the cause of death as suicide or an accident were
equal possibilities. Accordingly, the claimant’s claim in tort failed. It was also held an employer
could not escape contractual liability to pay death benefits where its opinion regarding how an
employee had died failed to take into account a relevant matter, which in this case was the
possibility B had fallen overboard whilst observing the weather. Therefore, the claimant’s
contractual claim for death benefits succeeded.
Niloufer Braganza v (1) BP Shipping Ltd (2) BP Maritime Services (Singapore) PTE Ltd [2012]
EWHC 1432 (Comm)
See Lawtel document no: AC0132689
Quantum
(3)
JSB Bracket:
PSLA:
Injuries:
Chapter 2(A)(a)
£250,000 (£254,833.96 RPI)
Severe brain damage
The hospital admitted liability for the injuries the claimant sustained during his birth. The claimant
developed severe brain damage including spastic cerebral palsy involving all four limbs, epilepsy,
hearing impairment, severe visual impairment and dislocation of the right hip for which he
required surgery. He would remain dependent on a wheelchair and on his carers for all aspects of
daily living.
CD (by his mother and litigation friend, JD) v Luton & Dunstable Hospital NHS Foundation Trust
[2011] LTLPI 13/6/2012
See Lawtel document no: AM0201971
(4)
JSB Bracket:
PSLA:
Injuries:
Various
£7,000 (£7,132.35 RPI)
The claimant sustained soft tissue injuries to her right shoulder,
neck and right knee
The claimant sustained injury following a road traffic accident when her car skidded on ice and
she lost control. She pursued action against the defendant highway authority alleging that it was
negligent in failing to treat the road properly or keep it clear of a substance likely to cause danger,
namely water which had been leaking on to the road for some time. The defendant disputed
liability and alleged that the claimant was driving too quickly and then suddenly braked thereby
losing control. The claimant was successful and received damages for soft tissue injuries to her
neck, shoulder and knee. Her knee injury accelerated symptoms of an underlying abnormality by
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three to five years. Her shoulder injury had settled by six months after the accident and her neck
injury between 18 and 24 months after the accident.
Vicky Joy Goodall v Wakefield Metropolitan Borough Council [2012] LTLPI 13/6/2012
See Lawtel document no: AM0201973
(5)
JSB Bracket: Not applicable
Total damages: £12,500 (£12,635.47 RPI)
Injuries:
Avoidable preparation for veneers of six upper anterior teeth
The claimant suffered from crowding in her upper front teeth and embarked upon the provision of
six upper anterior veneers. The dentist failed to explain the possible alternative treatment options
or the preparation that would be required for the veneers and the regular replacement cycles that
would follow. The claimant complained the veneers were too bulky and she was advised by a
further dentist that the contouring on the veneers was incorrect and required repair. As a result,
the claimant faced regular replacement cycles for the veneers for the rest of her life. There was
an out of court settlement of £12,500 for total damages. The following breakdown was estimated
by the claimant’s solicitors:
General damages, avoidable tooth preparation and inconvenience
Future treatment costs
Past losses in relation to special damages
£5,435.30
£6,184.80
£879.90
Harrison v T [2012] LTLPI 12/06/2012
See Lawtel document no: AM0201968
(6)
JSB Bracket:
PSLA:
Injuries:
Chapter 6(M)(c)
£10,000 (£10,070.60 RPI)
Displaced malleolar fracture of the right ankle consequent to her
resulting inability and deep vein thrombosis leading to pulmonary
embolism
The claimant fractured her right ankle when a metal ramp collapsed underneath her. Liability was
admitted. The claimant was placed in a below-the-knee cast for seven weeks and required a long
period of convalescence over a 3-month period. As a result of her inability, she developed deep
vein thrombosis. The ankle fracture healed within four months of the date of the accident, after
which she was referred for physiotherapy. The accident resulted in a two to tree year acceleration
of deterioration in the claimant’s mobility.
PE v CHL [2012] LTLPI 12/6/2012
See Lawtel document no: AM0201969
(7)
JSB Bracket:
PSLA:
Injuries:
Chapter 6(B)(b)
£9.000 (£9,170.17 RPI)
Lower back
The claimant suffered pain in her lower back following a road traffic accident. After almost two
years her symptoms plateaued and she was experiencing intermittent pain once every couple of
months. It was likely her condition would be permanent.
JK (by her litigation friend) v Lea-Ann French [2012] LTLPI 8/6/2012
See Lawtel document no: AM0201967
(8)
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JSB Bracket:
PSLA:
Injuries:
Not applicable
£7,000 (£7,484.57 RPI)
Carbon monoxide poisoning
The defendant completed chimney repairs at the claimant’s house. During the course of the
repairs, workers damaged the gas fire and chimney. Subsequent smoke tests concluded smoke
from the gas fire was filling the roof space, leaking into the upstairs bedroom and escaping out of
the joint work in the chimney stack. The claimant suffered headaches, lethargy and sickness
almost immediately. She found she had no energy and was falling asleep during the day and very
early at night. The claimant’s symptoms had fully resolved almost one year later and the damage
to the chimney and fire were rectified.
Colleen Treacher v Gelder Group [2010] LTLPI 7/6/2012
See Lawtel document no: AM0201966
Press
(9) Mediation
Reflects on the costs consequences of failure to mediate with reference to Swain Mason v Mills
and Reeve.
See SJ, 12/06/2012, p14
(10) Road traffic
Discusses contributory negligence and child car seats with reference to Hughes v Williams.
See SJ, 12/06/2012, p23
(11) Personal injury update
A review of recent liability and quantum decisions including Chandler v Cape plc concerning
parent company liability for asbestos exposure and Sedge v Prime, Oxborrow v West Suffolk
Hospitals NHS Trust and Szatmari v Oxford Radcliffe Hospitals NHS Trust on interim payments.
See NLJ, 15/06/2012, p798
(12) Proportionality
Dominic Regan reflects on the concept of proportionality in litigation with reference to the
implementation of Lord Justice Jackson’s civil litigation costs reforms.
See NLJ, 15/06/2012, p802
(13) Whiplash claims
Reports that the chairman of the Family Doctor Association has backed government plans to
create a panel of whiplash specialists to confirm diagnosis before a personal injury claim can
proceed.
See LSG, 14/06/2012, p4 or online
(14) Referral fees
Reports that the Law Society has warned of a ‘danger of anomalies’ in the government’s plan for
banning referral fees.
See LSG, 14/06/2012, p4 or online
(15) Expert opinion on whiplash claims
The director of a firm which provides independent medico legal reports argues that medical
experts are not deceived by fraudulent whiplash claimants.
See Post Magazine, 14/06/2012, p12
(16) OFT probe
Claims that political pressure to ban credit hire and vehicle repairer referral fees could follow the
Office of Fair Trading consultation on its provisional decision to refer the UK private motor
insurance market to the Competition Commission.
See Insurance Times, 01/06/2012, p6
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(17) Product liability
A guide to product liability claims under the Consumer Protection Act 1987.
See JPIL, June 2012, p79
(18) Health and safety
Reflects on government proposals to reduce the burden of health and safety regulation on UK
business.
See JPIL, June 2012, p90
(19) Accidental injuries
Contrasts the reduction in the number of road and industrial fatalities in the UK since the 1980s
with the rise in home and leisure injuries.
See JPIL June 2012, p95
(20) Provisional damages
Considers provisional damages with reference to the condition of symptomatic syringomyelia.
See JPIL, June 2012, p112
(21) Surveillance evidence
Discusses the admissibility of video surveillance evidence in personal injury actions.
See JPIL, June 2012, p118
(22) Human Rights Act claims
Reflects on the Supreme Court decision in Rabone v Pennine Care NHS Foundation Trust which
considered whether a psychiatric hospital which gave a voluntary patient leave to go home, after
which she committed suicide, had acted in a way that was incompatible with her right to life and
whether her parents were entitled to damages under the Human Rights Act 1998.
See JPIL, June 2012, p127
(23) Admissions of liability
Reflects on Woodland v Stopford and the issue of resiling from admissions of liability.
See JPIL, June 2012, p134
(24) The effect of proportionality on costs
Comments on Roach v The Home Office and costs recovery in lower value fatal claims involving
inquests.
See JPIL, June 2012, p139
(25) Call for action on diesel fumes
Reports that an expert panel convened by the International Agency for Research on Cancer
(IARC) has announced that diesel has been reclassified as a ‘Group 1’ carcinogen.
See TUC Risks, 16/06/2012 or online
(26) Threat to Cranes Register
Reports that a proposal to revoke the register of tower cranes introduced by the Notification of
Conventional Tower Cranes Regulations 2010 has provoked criticism from health and safety
campaigners.
See TUC Risks, 16/06/2012 or online
(27) Contractor prosecuted for guard rail failure
A building firm was fined £5,000 and ordered to pay £2,706 in costs after a decorator was
seriously injured when he fell through a substandard guard rail.
See HSE press release, 11/06/2012 or online
5
(28) Company fined after employee suffered serious injuries
A machining company was fined £10,000 and ordered to pay £3,632 in costs for failing to
adequately guard dangerous parts of machinery leading to a lathe machine operator suffering
head and chest injuries.
See HSE press release, 11/06/2012 or online
(29) Workers needlessly exposed to deadly asbestos dust
A brewery was fined £5,000 and ordered to pay £6,925 in costs, a building and maintenance
company was fined £12,500 with £6,295 in costs and its director was fined £2,500 with costs of
£2,000 after workers carrying out refurbishment work were exposed to asbestos dust.
See HSE press release, 11/06/2012 or online
(30) Company director fined after failing to control asbestos
A company was fined £8,000 and ordered to pay costs of £10,449 after instructing a worker to
dismantle a building without an asbestos survey being carried out. Asbestos-containing materials
were disturbed during the demolition.
See HSE press release, 12/06/2012 or online
(31) Company failed to safeguard workers
An engineering firm was fined £5,000 and ordered to pay £2,302 in costs after a worker was
badly injured when he became entangled in a rotating machine tool while clearing it. The
machine’s safety interlocks had been disabled.
See HSE press release, 13/06/2012 or online
(32) Firm responsible for spread of asbestos fibres in shop
A company was fined £18,000 and ordered to pay £5,314 in costs after asbestos fibres were
spread in part of a shop by unqualified workmen and left on the premises for three weeks.
See HSE press release, 13/06/2012 or online
(33) Firm sentenced after worker broke his back in fall
A building firm was fined £13,500 and ordered to pay £7,509 in costs after a bricklayer broke his
back when he fell through exposed floor joists on a building site.
See HSE press release, 13/06/2012 or online
(34) Firm fined after worker injured in trench collapse
A company was fined £10,000 and ordered to pay costs of £2,141 after a worker was buried up to
his waist when a trench collapsed.
See HSE press release, 13/06/2012 or online
(35) Safety pleas ignored by firm
A construction company was fined £15,000 and ordered to pay costs of £6,969 after a worker fell
eight metres from a scaffold tower that he had expressed safety concerns over.
See HSE press release, 14/06/2012 or online
(36) Firm fined after worker’s roof fall
A company was fined £500 and ordered to pay costs of £850 after a worker was hurt falling two
and a half metres from a roof.
See HSE press release, 14/06/2012 or online
(37) Asbestos removal firm fined
A licensed asbestos removal contractor was fined £10,000 and ordered to pay £5,349 in costs for
failing to properly maintain a decontamination unit and respiratory masks, and for failing to have a
trained supervisor on site during a refurbishment project.
See HSE press release, 14/06/2012 or online
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(38) Firms fined following university death
A concrete manufacturer was fined £100,000 with costs of £140,000 after a large slab of concrete
fell on a carpenter during construction work, killing him instantly.
See HSE press release 14/06/2012 or online
(39) Workers seriously injured after falling from height
A manufacturing firm was fined £22,000 and ordered to pay costs of £12,134 with a £15 victim
surcharge, and a director was fined £3,500 and ordered to pay costs of £7,866 and a £15 victim
surcharge after two agency workers fell from a makeshift lifting platform.
See HSE press release, 15/06/2012 or online
Legislation
(40) The Health and Safety (Miscellaneous Revocations) Regulations 2012
SI number:
2012/1537
Enabling Act:
Health and Safety at Work etc. Act 1974 s.15(1)(3)(a), s.49(1)(4)
Coming into force:
1 October 2012
Effect:
SR&O 1906 679, Pottery (Health and Welfare) Special Regulations
1950, Non-ferrous Metals (Melting and Founding) Regulations
1962, and various other regulations repealed
Application:
England, Scotland, Wales and Northern Ireland
See Lawtel document no: AI0121537or online
HSB
- HEALTH AND SAFETY BULLETIN
IHL
- IN-HOUSE LAWYER
JPIL
- JOURNAL OF PERSONAL INJURY LAW
LSG
- LAW SOCIETY GAZETTE
NLJ
- NEW LAW JOURNAL
SJ
- SOLICITORS JOURNAL
TLR
- TIMES LAW REPORT
OHR
- OCCUPATIONAL HEALTH REVIEW
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© Berrymans Lace Mawer LLP 2012.
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