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April 2012
Butterworths
Vol 4 Issue 4
Personal Injury Newsletter
NEW S UP DATE FOR P E RS O N A L I N J U RY P RO F E S S I O N A L S
House of Lords
inflict nine
defeats on legal
aid bill
T
he House of Lords
has voted against
the mandatory use
of telephone advice lines,
inflicting the ninth defeat
so far on the Legal Aid,
Sentencing and Punishment of
Offenders Bill.
Lady Grey-Thompson,
the former Paralympic
athlete, successfully argued
that requiring those with
learning disabilities or speech
impediments to seek help over
the phone would be a false
economy since they would
subsequently require face-toface interviews to make their
case effectively.
Another amendment,
blocking government plans to
force asbestos victims to use
some of their damages to pay
legal bills, also succeeded,
as did one exempting all
industrial-disease cases from
the proposals for “no-win, nofee” payment arrangements.
Deborah Evans, the
Association of Personal Injury
Lawyers chief executive said:
“This is obviously good news
for victims of industrial disease
and it is imperative that the
government does not overturn
these important amendments
when the debate returns to the
House of Commons.”
The Lords have also voted
to protect free advice for
people seeking to challenge
cuts to their benefits, and
when they appeal to a higher
court against verdicts. They
also backed an amendment
urging the retention of legal
assistance in obtaining expert
reports in clinical negligence
proceedings and demanded
the protection of victims
of domestic violence from
funding cuts.
Legal bodies join forces to push
through reforms to civil litigation bill
T
hree leading legal
organisations have
joined forces to urge the
government to revise plans
which would force injured
people to pay towards the cost
of claiming compensation.
The Association of Personal
Injury Lawyers (APIL),
the Law Society, and the
Motor Accident Solicitors
Association (MASS) have put
forward a number of proposed
amendments to the Legal Aid,
Sentencing and Punishment of
Offenders Bill which they say
will help to protect injured
victims.
Proposals includes
measures to fix and limit
claimant lawyers’ success fees
at a new lower level, while
retaining the current principle
of making them recoverable
from the losing defendant.
They want the 10% uplift
in damages recommended
by Lord Justice Jackson to be
included in the legislation and
for claimants in most cases to
be allowed to pay their own
premiums to insure against
paying the other side’s costs
(after-the-event insurance
premiums). They also propose
a workable method of
introducing the government’s
proposal for qualified oneway cost shifting (QOCS).
Law Society chief
executive, Des Hudson, said:
“We have combined in a spirit
of pragmatism to present to
the government an alternative
set of proposals which address
their concerns but which
No causal link found between
CFS and workplace stress
T
here was an insufficient
causal link between an
employee’s development
of chronic fatigue syndrome
(CFS) and the stress she
suffered at work, the High
Court has held.
In MacLennan v Hartford
Europe Ltd
d [2012] EWHC 346
(QB), Mr Justice Hickinbottom
found that the claimant’s
illness was not foreseeable
and that even if a causal link
between stress and CFS had
been found, she had failed to
establish that the defendant
was ever placed on notice that
she was at risk of suffering
imminent harm to her health.
Hickinbottom J found the
claimant to be an unreliable
witness, although prior to
developing her illness she
had been a “diligent, hardworking and competent
HR manager, popular and
professionally esteemed”.
Personal Injury Newsletter
Indeed, Kennedys, who
acted for the defendant,
successfully argued that the
claimant (who was funded by
a conditional fee agreement
backed by ATE insurance)
should pay indemnity costs
for the final year of the
litigation due to the way
the litigation had been
conducted.
Kennedys partner,
Roger Jones, said: “The
documentary evidence in the
form of contemporaneous
emails indicated that the
claimant was prone to
exaggerate and supported
the defendant’s contention
that, whilst she was busy and
working hard, she repeatedly
said that she was enjoying
her job and had a good
working relationship with
her HR director and was well
supported by the rest of the
business.”
will cause less damage to the
interests of ordinary citizens
who have been wronged.”
APIL president, David Bott,
said: “The claimant community
has worked hard to formulate a
compromise which is balanced
enough to suit all parties in this
debate. We are now calling
on the government to give this
package serious consideration.
The only party to benefit from
the government’s current
proposals is the insurance
industry whose interests should
not be put before those of the
public.”
MASS chair, Donna Scully,
said the changes being
proposed are small but would
make a big difference where it
is needed.
Contents
The concept of
dependency
2
Keeping control of the
floodgates
3
In practice
5
Case digests
6
Legislation update
8
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1
The concept of dependency
The concept of
dependency
Although the principles applicable to dependency are clear in a
straightforward case, the vague language of the Fatal Accidents
Act 1976 leaves substantial room for judicial discretion. Harry
Trusted
d reports
T
he Fatal Accidents Act 1976 (FAA
1976) enables the families of victims
of accidents to claim damages
for their loss. These claims are distinct
from those made by the estate of the
deceased, pursuant to the Law Reform
(Miscellaneous Provisions) Act 1934
(LRMPA 1934).
Whereas LRMPA 1934 claims are
usually modest and easily quantified,
the FAA 1976 claims raise wider and
more complex problems. Damages for
bereavement arise by virtue of the 1981
Administration of Justice Act, and a note
of the tariffs and dates of such awards
appears in “Facts and Figures 2011/12” at
p 132. There will also be modest awards
(pursuant to Regan v Williamson [1976]
1 WLR 305 and following cases) for loss
of love and affection. For instance, in H
v S [2003] QB 965, Kennedy LJ indicated
that an award of up to £5,000 for very
young children might be appropriate.
Definition of dependency
The chief problem with FAA 1976 lies in
respect of “dependency” claims. Section
1 defines a “dependant” in some detail.
In essence, dependants are spouses
(including former spouses), partners living
with the deceased for at least two years
prior to death, children (or those treated
as children and living with the deceased
at date of death), parents (or those treated
as parents), ascendants (grandparents
etc), siblings, uncles and aunts. However,
this definition of dependants is to be
contrasted with the surprisingly vague
definition of dependency. FAA 1976,
s 3(1) stipulates that a dependant will
recover: “…in the action such damages,
other than damages resulting for
bereavement, may be awarded as are
proportioned to the injury resulting from
the death of the dependants…”
Loss of dependency
Historically, the task of assessing the
loss of dependency fell to a jury. In
2
more recent times, Latham LJ in Cape
Distribution v O’Loughlin [2001] EWCA
Civ 178 said that a judge making that
assessment should:
“…examine the particular facts of
the case to determine whether or not
any loss in money’s worth has been
occasioned to the dependants and if it
determines that it has, it must then use
whatever material appears best to fit
the facts of a particular case in order
to determine the extent of that loss…”
This is a surprisingly wide ambit of
discretion, deriving from a statutory
scheme which is itself devoid of detail.
How have the courts responded to that
somewhat nebulous state of affairs?
The most straightforward and perhaps
“traditional” dependency arises where
the deceased was the breadwinner and
the surviving spouse was at home and
not working. (The same principles will
apply to a man and woman who have
lived together for more than two years
prior to the death. In the remaining
examples, “spouse” includes those
who are unmarried but within that
statutory definition of dependency).
The well-established principle derives
from Harris v Empress Motors Limited
[1984] 1 WLR 216 per O’Connor LJ at
216, and provides that if a couple have
dependant children, the dependency will
be deemed to be ¾ of the deceased’s
net income; if there are no dependant
children, the dependency will be deemed
to be 2/3 of that net income. A child may
be regarded as being dependant up to
and including time in tertiary education
(Corbett v Barking
g HA [1991] 2 QB
408 at 441 per Ralph Gibson LJ). While
it is true the courts have emphasised
that this approach is not “set in stone”
(see comments of Parker LJ in Owen v
Martin CA [1992] PIQR Q151), most
practitioners would be unlikely to
refuse a Pt 36 offer and risk an appeal
hearing on the basis that their case was
exceptional.
Standard approach
A common problem arises when both
husband and wife work and one of
them dies. In these circumstances, it
may be said that the survivor was a
dependant, but also that the deceased
was a dependant. In Coward v Comex
([1988] Independentt July 25), the Court
of Appeal approved an approach which
has become standard. The dependency
percentage (usually either ¾ or 2/3 as
above) will be applied to the joint net
income pre-accident, and the survivor’s
dependency will be the difference
between that discounted joint income
and his/her net income. Hence:
Wife earned
£10,000 pa
Husband earned
£20,000 pa
2/3
Dependancy
Joint income as discounted
£20,000
Husband dies.
Calculation:
£20,000 (joint income as above) –
£10,000 (wife’s income).
£10,000 pa
Net annual dependancy
In some circumstances, of course, this
may mean that there is no financial loss
to the survivor.
The concept of “dependency” has
been held to include the help in the
home which the deceased gave in respect
of domestic tasks such as gardening,
cooking and cleaning. Judges tend to
favour a “broad brush” approach to such
claims so that £1,000 pa was approved
by the Court of Appeal in Wells v Wells
[1997] 1 WLR 652; in 2012 money, that
would equate to about £1,500 today.
A more difficult question arises if
the survivor gives up work or takes less
remunerative work following the death
of a spouse. This may happen if, for
instance, there are young children or
elderly relatives to be looked after.
The obvious starting point is that a
surviving spouse cannot claim for loss
of earnings and costs of care and help,
because that would amount to “double
recovery” (see, eg, Manning v King’s
Personal Injury Newsletter
The concept of dependency/ Controlling the floodgates
College Hospital NHS Trustt [2008]
EWHC 3008 (QB).
Loss of earnings
In general, the losses of earnings suffered
by a spouse giving up work to look after
children will be allowed if the court
concludes that this was a reasonable
choice. Hence in Mehmet v Perry
y [1977]
2 AER 529, the divisional court allowed
such a claim because the children had
chronic illnesses and the surviving father
was the only person who was viably able
to care for them. In that case, however,
there was no great difference between the
loss of earnings and the probable costs of
commercial care.
Conversely, in Batt v Highgate Private
Hospitals [2005] PIQR Q1, a father’s
claim for five years’ loss of earnings
failed because Judge Darlow (sitting
as a High Court Judge) held that it was
unreasonable for him to do so because
his earnings were some ten times higher
than the costs of providing suitable and
sufficient child care for his child between
ages seven and 12.
A slightly different issue arose in
Watkins v Lovegrove (unreported, 8
November 1991). There, a father who
gave up his job in the Royal Navy and
took less remunerative work ashore to
look after his children following the death
of their mother, succeeded in claiming
the differential in earnings. Goff J held
that this was a proper and reasonable
dependency claim which arose because
of the fault of the tortfeasor.
What is the position if the survivor
was not working at the time of death,
but has since taken a job to make ends
meet? The problem was considered in
the old case of Howitt v Heads [1973]
1 QB 64 at 69. The facts were that the
deceased’s widow had been pregnant
and planning to stop work at the time of
his death. After he died, she took a job
and Cumming-Bruce J (as he then was)
declined to deduct those earnings from
her dependency claim. An analogous
point was considered by Owen J in
Wolfe v del Innocentii [2006] EWHC (QB)
2694. The claimant widow had been
in partnership with her late husband.
However, she had taken no active part
in the business. She therefore contended,
successfully, that any profits which she
continued to receive should not reduce
her dependency. In effect, therefore, the
logic of Howittt was applied by Owen J
although he distinguished its facts.
Child care costs
If the cost of child care is not bought
commercially (as it often will not be),
the survivor may claim for the additional
time which s/he now spends looking
after children or other close relatives. The
commercial costs can be assessed either
by reference to a care expert or – in a
Keeping control of the
floodgates
Tracey Graham explores courts’ approach to foreseeability in
occupational stress claims
T
he general principles of negligence
are well known in personal injury
law. However, alongside negligence
comes the legal duty of care and with
it the consideration of breach, causing
injury.
The three-stage test often referred to
involves: proximity (as between claimant
and defendant); reasonableness; and
foresight of harm.
In terms of the third component,
foreseeability of harm (damage) occurs
when acts of the defendant are likely to
give rise to physical or personal injury.
Personal Injury Newsletter
Since Page v Smith [1996] No 1
AC 155, the courts do not distinguish
between physical and psychiatric injury.
If physical injury can be foreseen as a
consequence of a defendant’s negligence
or breach, then psychiatric damage –
even though unforeseeable in itself – will
still attach to that defendant’s negligence.
What, then, of psychiatric injury alone?
Walker
Foreseeability in occupational stress
cases has become, and remains, of
crucial importance. Ever since the case
modest case where the figures may not be
controversial – the figures in “Facts and
Figures” may suffice. A table appears at
pp 286–288 of the 2011/12 edition.
It is important to add that the courts
tend to the view that older children
will need significantly less care as they
become more independent (see, eg,
dicta of Croom-Johnson LJ in Spittle v
Bunney
y [1988] 3 AER 1031 at 1040). This
principle will not apply to a child who
has disabilities and who may well require
lifelong help. An issue of that kind will,
of course, be one of “reasonableness”
for the trial judge to decide. Hence
the litigation risk attaching to it will be
considerable for both sides.
Conclusion
The conclusion here must be, therefore,
that although the principles applicable to
dependency are clear in a straightforward
case, the vague language of the statute
leaves substantial room for judicial
discretion.
The variety of domestic problems
which arise following unexpected death
leave legal uncertainties, which mirror
the complexity and difficulty which
the family will suffer financially and
otherwise.
Harry Trusted
Barrister
Outer Temple Chambers
of Walker v Northumberland County
Councill [1995] 1 CR 702, the courts have
continued to emphasise the necessity of
proving reasonable foreseeability. Walker,
a social services officer, became ill due
to increasing workload and went off
sick with a nervous breakdown in 1986.
Additional help was promised upon his
return, although it was withdrawn within
a month of his return. A continuing stream
of new, additional responsibilities led to
a second illness and, ultimately, his illhealth retirement.
Walker’s case became known as the
“second breakdown case” on the basis
that, as a reasonable employer, the
county council could not have reasonably
foreseen the first nervous breakdown.
However, its occurrence did make it
reasonably foreseeable that further
damage (the second breakdown) might
occur.
Colman J stated:
“Where it was reasonably foreseeable
to an employer that an employee
3
Controlling the floodgates
might suffer a nervous breakdown
because of stress and pressures of his
workload, the employer was under
a duty of care as part of that duty to
provide a safe system of work, not
to cause the employee psychiatric
damage by reason of the volume
or character of the work which the
employee was required to perform.”
Sutherland v Hatton
The approach in Walker found favour
in other cases that followed, but it was
the case of Sutherland v Hatton [2002]
EWCA Civ 76 that endorsed it further.
Knowledge of the risk (foreseeability
of injury/illness) is now regarded as
the absolute threshold question. In this
respect Hatton – a teacher – failed to
persuade the appeal court that the school
could have reasonably foreseen her
breakdown.
The judgement in Sutherland v
Hatton underlined the importance of
satisfactorily answering the question:
“Could the employer reasonably have
foreseen that an employee would suffer
from mental injury as a result of the work
that he was asked to perform?”
The Court of Appeal placed the
burden of proving this squarely on the
shoulders of the employee in that:
(a) the employee is in charge of his own
mental health;
(b) the employee can gauge whether the
job that he is doing is causing harm;
(c) if (a) and (b) apply, the employee can
then do something about it.
The court observed:
“The employer is genuinely entitled to
take what he is told by his employee
at face value, unless he has good
reason to think to the contrary. He
does not generally have to make
searching enquiries of the employee
or seek permission to make further
enquiries of his medical advisors.”
It is the employee, therefore, that
must make it obvious that s/he is at risk
of harm. Hale LJ questioned how strong
these indications must be before an
employer has a duty to act. She stated:
“In view of the many difficulties of
knowing when and why a particular
person will go over the edge from
pressure to stress and from stress to
injury to health, the indications must
be plain enough for any reasonable
4
employer to realise that he should do
something about it”.
Barber
The case of Barber v Somerset County
Council [2004] UKHL 13, [2004] 1
WLR 1089 then brought acceptance
of the propositions put forward in the
Sutherland v Hatton judgment.
In 1995, Barber – another teacher –
was employed as a head of department
in his school. Changes at the school
resulted in a new role, increased his
hours and created high levels of stress.
Despite raising concerns with his
employer, he received little sympathy,
and soon became ill with stress and
depression. Eventually he suffered
a nervous breakdown that led to illhealth retirement. He succeeded at first
instance, failed in the Court of Appeal,
but the House of Lords overturned
the appeal court ruling and awarded
damages. The long route to ultimate
success for Barber is an indication of
how the courts were grappling with the
law as it developed.
Hartman
In a case that followed a year later,
that of Hartman v South Essex Mental
Health and Community Care NHS Trust
and Others [2005] EWCA Civ 06, the
Court of Appeal refined the issue of
foreseeability.
A nursing auxiliary at a children’s
home, Hartman, was denied
compensation. The appeal court judges
gave guidance to suggest that:
(a) generic complaints are insufficient
in themselves to create a finding of
foreseeable risk of injury on the part
of an individual claimant;
(b) complaints should be specific to the
individual claimant;
(c) if there are other sufferers from mental
illness at a workplace, the cause of
their conditions must be similar to the
claimant’s;
(d) there must be specific signs of
vulnerability on the part of the
individual claimant; and
(e) documentary evidence is of little
value if it is generic.
No general principles were stated
as such, but the case provided useful
examples of the approach to be taken.
What Hartman did was to confirm the
principles in Hatton and minimise the
potential effect of the decision in Barber
v Somerset County Council. It was also
emphasised that the general principles in
Hatton needed care in their application.
Hartman was one of six workplace stress
appeals decided by the Court of Appeal
at the same sitting. Many have thought
the decision to dismiss the case harsh; a
result perhaps of the Court of Appeal’s
fear of opening the floodgates to this type
of action.
Majrowski
Foreseeability of injury still, therefore,
remains critical in the majority of claims
for occupational stress. However the
House of Lords in 2006 – in the case
of Majrowski v Guy’s and St Thomas
NHS Trustt [2006] UKHL 34 – found that
claims brought pursuant to the Protection
from Harassment Act 1997 (PHA 1997)
did not require a claimant to show
that harm was foreseeable. That said,
Baroness Hale was also keen to ensure
that floodgates would not be opened,
and this has been seen to be the case so
far.
Conn
Few cases have followed Majrowski
but one – Conn v Sunderland County
Councill [2007] EWCA Civ 1492 –
clarified what did require proof, even
if foreseeability did not. The Court of
Appeal in Conn found that criminal
liability had to attach to any conduct that
fell within the definition of harassment
in order to secure an award of damages.
The court stated that trivial incidents of
behaviour were unlikely to give rise to
any liability and Conn pointed this out
quite forcefully.
The brief facts were that Conn took
action against the council alleging
psychiatric injuries resulting from
bullying at work. He later amended the
claim alleging harassment under PHA
1997. The first incident involved his
manager threatening to smash a window
and report the claimant, along with
some of his colleagues, to the personnel
department for leaving work early. The
second incident involved the manager
threatening the claimant after the former
felt that the latter had been giving him
“the silent treatment”. The judge at
first instance found that the psychiatric
injuries were not caused by events at his
workplace.
Ward LJ made it clear that the conduct
had to be of such gravity as to justify the
sanction of criminal law and stated:
“What on earth is the world coming to
if conduct of the kind that occurred in
Personal Injury Newsletter
In practice
the third instant can be thought to be
an act of harassment, potentially liable
to giving rise to criminal punishment
with imprisonment for a term not
exceeding six months, and to a claim
for damages for anxiety and financial
loss?”
It is clear that incidents of harassment
that fall below the line at which criminal
sanctions would be justified will fail.
Hammond
The case of Hammond v INTC Network
Services Limited
d [2007] All ER (D) 19
makes it clear that irritating, upsetting or
annoying conduct will not necessarily be
a breach of PHA 1997. However, PHA
1997 is helpful in providing for a civil
remedy and gives a limitation period for
claims of six years.
In conclusion, the law continues
to evolve, but foreseeability still
A world of hurt
Karen O’Sullivan outlines the difficulties involved in bringing and
defending a personal injury claim involving chronic pain
C
hronic pain encompasses cases where
the claimant has symptoms of pain,
but medical investigations have been
unable to find a precise pathological cause
for the pain suffered by the claimant. The
term “chronic pain” includes the following
conditions.
Chronic pain syndrome
This is a poorly understood condition
with no clear definition. It is characterised
by persistent pain suffered usually for a
minimum of three to six months. The effect
on the sufferer varies widely and may
be limited to minor difficulties but often
involves substantial discomfort and could
even, in rare cases, lead to a complete
loss of independence. It is sometimes
argued that chronic pain syndrome is
the appropriate diagnosis in cases where
pain persists beyond the usually expected
healing periods for injuries.
Complex regional pain syndrome/reflex
sympathetic dystrophy
This is a condition which usually
appears near the site of an injury. The
usual symptoms include shooting pains
and sensations of burning. There may
be spasms, swelling, changes in skin
temperature and a whole host of other
features. The pain can be continuous and is
characterised by being disproportionate to
the injury suffered.
Chronic fatigue syndrome
This manifests itself in persistent fatigue,
usually for a minimum period of six
months. The cause is unknown and
multiple psychological and/or physiological
factors may contribute. The symptoms may
include widespread muscle and joint pain.
Personal Injury Newsletter
Somatoform disorder
This encompasses a group of disorders, all
of which present physical symptoms which
approximate physical medical conditions
but for which there is no discernable
physical cause. The symptoms are due
solely to mental factors, but nonetheless
may be equivalent to physical illnesses and
can last several years.
remains the key to success in claims for
occupational stress and is only removed
as an obstacle if harassment has caused
the illness. However, even then, there
are other hurdles to overcome. The
courts remain firmly in control of the
floodgates.
Tracey Graham
Partner
RJW Manchester
are, of course, a range of subjective criteria
which can be reasonably specific: for
example in cases of somatisation disorders
(a type of somatoform disorder) there are
clearly agreed (DSM IV) diagnostic criteria.
Even so, the subjective nature of the
conditions inevitably gives rise to litigation
difficulties.
It is useful to bear in mind Sternbach’s
6 Ds of chronic pain syndrome when
assessing the veracity of cases:
■
■
■
■
■
■
Fibromyalgia
This means, literally, pain in muscle
and connective tissue. Pain is usually
widespread and may be characterised by
heightened response to pressure. However,
symptoms are not limited to pain and the
condition is therefore sometimes referred
to as “fibromyalgia syndrome”. It may
include stiffness, tiredness, numbness and
cognitive difficulties among many other
possible symptoms. It is often diagnosed
in conjunction with depression, anxiety or
stress.
Medical evidence
There is a lack of scientific consensus
as to the causes of these conditions.
They are broadly considered to be
either musculoskeletal diseases or
neuropsychiatric conditions. The main
symptom is chronic, widespread pain
but the condition may include a whole
host of other symptoms. The nature of
these conditions means that there are no
objective diagnostic tests and Waddell’s
signs (test indicating that the pain is nonorganic and the product of psychological
factors) may be positive. This does
not necessarily mean that there is any
conscious exaggeration on the part of a
claimant. Where the symptoms are genuine
they operate entirely unconsciously. There
dramatisation of complaints;
drug and/or alcohol misuse;
dysfunction;
dependency;
depression; and
disability.
These are cases in which the quality
of the medical evidence is crucial.
Experienced experts with genuine interests
in the causes of pain should be sought.
The first expert to turn to will usually be a
rheumatologist. In most cases a psychiatrist
will also be necessary, to be instructed
following receipt of the report of the
rheumatologist. The experts should not fall
into the trap of focusing on treatment but
should provide a detailed analysis of the
underlying cause of the pain. They should
stick closely to any applicable standard
diagnostic criteria and provide clear and
detailed reasoning against each criterion.
There must be a coherence across the
medical evidence, particularly with regard
to the lines drawn between organic and
non-organic causes. It may be worthwhile
arranging conferences with the experts to
discuss the issues before final reports are
prepared.
Causation
All a claimant must do to succeed in a
chronic pain case is show that the pain
is in fact being suffered and has its root
in a physical injury: ie, establish that the
pain is a result of the injury, irrespective
of any lack of medical explanation for the
mechanism by which it is caused.
5
In practice/ Case digests
The courts nonetheless take a measured
approach to claims which involve
continuing pain for which there is no clear
medical explanation. These are cases in
which the medical experts believe that
the claimant is suffering the symptoms
they report but can merely speculate as
to why. In those circumstances courts are
ready and willing to take their own views
as to the veracity of the claimants’ claims.
Findings of malingering may be made
against claimants despite their having
several supportive experts behind them.
Where there is a void in the medical
evidence, defendants often adopt the
tactic of alleging that the symptoms are
simply exaggerated. Courts sometimes
find it easier to accept that claimant’s are
over-emphasising or fabricating symptoms
rather than suffering from medically
inexplicable symptoms. Such allegations
will frequently be accompanied by
surveillance evidence.
Claimant’s, particularly in the face of
ambiguous surveillance evidence, may
substantiate their case by reference to their
pain management history. Notes from a
pain management specialist over a period
of time are a good basis for persuading
a court that symptoms have been real,
ongoing and of sufficient severity to
compel the claimant to do something
about their condition. It is particularly
useful if there is a substantial GP record
of accident-related pain problems prior to
referral to the specialist.
A further tactic sometimes adopted by
defendants is to suggest that the claimant
was vulnerable to the condition and has
suffered it simply from the normal run of
events. This argument is strongest in cases
with extreme reactions as it is easier to
infer an abnormal underlying vulnerability.
A thorough review of the medical
records is necessary to reveal the sorts of
flags which may well exist in cases of this
nature (eg, irritable bowel syndrome). It is,
of course, impossible to escape the eggshell skull principle but it may be possible
nonetheless to persuade a court that the
claimant cannot satisfy the “but for” test. It
may even be possible to point to another
specific cause as the trigger for the pain,
eg, an ear infection.
If a claimant succeeds in establishing
their case, there will usually be a
presumption that there will be little
improvement in their condition. There
may, however, be an argument where
the principal cause of the pain has been
found to be psychological. In such
circumstances, a court may be willing to
infer that with appropriate treatment the
condition will improve over time. This will
depend on the prognosis of the experts and
the amount of treatment the claimant has
already undergone before trial.
Turner v Jordan & MIB [2010] EWHC
1508 (QB) is a case involving a claimant
who suffered with “conversion disorder”
which falls into the category of somatoform
disorders. The case is a good example
of the robust approach the court may
take to evidence in chronic pain cases.
It is emphasised in the judgment that
while a medical expert may proffer
their conclusions to the court, those
conclusions are only as reliable as the
claimant because the only evidence of the
symptoms experienced necessarily comes
solely from the claimant themselves.
Interestingly, in this case it was precisely
because the claimant gave an assured
performance under cross-examination that
the court concluded that he could not be
suffering with the debilitating symptoms he
had described to the expert.
Rogers v Little Haven Day Nursery 1999
WL 809073 similarly is a case involving
a somatoform disorder in which a finding
of exaggeration was made, but in this
case the claimant succeeded nonetheless.
Case digests
EL v the Children’s Society
[2012] All ER (D) 08 (Mar); [2012] EWHC
365 (QB)
24 February 2012
Child abuse – Vicarious liability – Claimant
resident at care home run by defendant
charity – Defendant employing husband
and wife as housemaster and matron –
Claimant alleging sexual abuse by couple’s
son – Whether defendant vicariously liable.
6
The defendant was a national children’s
charity which ran residential care homes
for orphans and children whose parents
were unable to care for them. The claimant
was taken into the defendant’s care and
placed at FP House (FPH) in May 1949.
He remained at FPH until October 1951.
In January 1956, when he was 11, the
claimant returned to FPH where he
remained until March 1959. During the
latter period the housemaster and matron
The case demonstrates that the court
may be willing to accept that a degree
of exaggeration may be unconscious or
understandable in the circumstances.
Quantum
These cases are of concern to defendants
first because of the obvious potential for
malingering, but second because awards
of general and special damages for these
conditions are potentially very high; the
current JSB Guidelines giving a possible
range of £7,000–£66,000. This reflects the
fact that the severity of these cases varies
wildly. In serious cases claims for special
damages can creep into six figures.
Limitation
The applicable limitation period is three
years from knowledge, after which a claim
will be statute-barred. By the Limitation
Act 1980 (LA 1980), s 14, a claimant has
sufficient knowledge when they had actual
knowledge that the injury was significant
and that the injury was attributable in
whole or in part to the act or omission
alleged to constitute negligence/breach
of duty and the identity of the defendant.
Under LA 1980, s 33, the court has
discretion to disapply the limit. Conscious
exaggeration is a matter which will be
taken into account when the court is
deciding whether or not to exercise its
discretion under s 33 (Parsonage v Fastway
Steel Ltd
d [2001] EWCA Civ 1796 (CA)).
Costs
If a finding of exaggeration or malingering
is made it is likely to have a substantial
adverse effect on the claimant’s costs
position (see Painting v University of
Oxford
d [2005] EWCA Civ 161 CA).
Karen O’Sullivan
Professional support lawyer
LexisNexis
were Mr and Mrs B. Their son, FB, had
lived with his parents at FPH until 1955
when, aged 18, he went away on national
service with the RAF and then to university.
He returned to stay with his parents at FPH
during leave and the university holidays.
FB subsequently took Holy Orders and
became a vicar in the Church of England
until his retirement. In mid-2008, the
claimant contacted the defendant and
brought a complaint. He alleged that, while
he had been in care of FPH, he had been
sexually assaulted by FB. The defendant
subsequently gave an account of his rape
by FB, which he thought had happened
Personal Injury Newsletter
Case digests
in early 1959 when he was about 15
and FB was either on leave from national
service or on vacation from university. In
November 2008, he was interviewed by
police and described further incidents of
rape and sexual abuse which had occurred
between March 1958 and March 1959.
The claimant had previously told his
wife about the abuse but no one else. In
July 2009, FB was arrested on a charge
of buggery. He admitted he had been
involved in masturbation with three of the
boys at FPH but denied having raped the
claimant. In February 2012, the claimant
issued proceedings against the defendant
and FB in respect of allegations of physical
and sexual assault which he had suffered
between 1956 and 1959. In July 2010, FB
committed suicide. FB’s relatives settled
the claim against his estate. The claimant
maintained his claim against the defendant.
The principal issue that fell to be
determined was whether the defendant
was vicariously liable for the abuse
perpetrated by FB against the claimant.
The claimant submitted that: (i) FB had
been used by his parents to discharge the
defendant’s care obligations towards the
children in the home; (ii) FB’s abuse of
the claimant had been closely connected
with his role at the home; and (iii) despite
the absence of any formal relationship of
employment, the circumstances gave rise
in law to vicarious liability on the part of
the defendant for FB’s torts. Consideration
was given to Lister v Hesley Hall Ltd
[2001] 2 All ER 769 and Various claimants
v Catholic Child Welfare Society [2010]
All ER (D) 241 (Oct).
The claim would be dismissed.
It was established principle that first,
the underlying rationale for making A
vicariously liable for the torts of B where
A had employed B for his own ends, was
one of “inherent risk”. Second, a two-stage
inquiry was required. The first stage was
to examine the relationship between the
defendant and the tortfeasor. The second
stage was to examine the connection
between the defendant and the act or
omission of the tortfeasor. The court had to
make a judgment upon a “synthesis” of the
two stages. Third, as regards the first stage,
vicarious liability was not only confined
to relationships of employment or paid
business relationships. Fourth, as regards
the second stage, the fact that the tortfeasor
might commit the tort outside his authority
from the defendant, or directly against the
defendant’s instructions, was not necessarily
a bar to the existence of vicarious liability.
Fifth, it was not sufficient, however, that
the employment by the defendant merely
Personal Injury Newsletter
afforded the tortfeasor the opportunity
to commit the tort. The test involved two
further fact-sensitive questions: (i) whether
the employers entrusted to the tortfeasor the
performance which they, the employers had
undertaken; and (ii) if so, whether there was
a close enough connection between the
torts and the tortfeasors employment for it
to be fair to hold the employers vicariously
liable.
The evidence did not begin to satisfy
the fact-sensitive tests of vicarious liability
in Listerr and Various Claimants. Indeed,
the evidence pointed to a conclusion of
positive non-employment of FB by the
defendant. The defendant could not be
held vicariously liable to the claimant for
the abuse committed by FB. It followed
that the claimant’s claim was bound to fail.
Middleton v Thompson and another
[2012] All ER (D) 16 (Mar); [2012] EWCA
Civ 231
1 March 2012
Evidence – Medical evidence – Expert
witnesses – Claimant bringing personal
injury claim following car accident –
Judge rejecting evidence of defendant’s
medical expert – Whether judge erring.
In February 2003, the first defendant’s
car shunted into the rear of the claimant’s
stationary vehicle, causing it to be
pushed forward by approximately four
feet. The claimant was 20 years’ old at
the date of the accident. The claimant
brought proceedings in the county court
for personal injuries sustained in the
accident. Liability to compensate the
claimant was admitted in the defence
but causation and quantum were put
in issue. At the hearing, the claimant
contended that he had never been free
of pain and stiffness in the lumbar spine
since the accident. He took strong
painkillers and his sleep and social life
was impaired. His case on economic
loss was based on his contention that
neither of his preferred careers, as a
personal trainer or as a heavy goods
vehicle driver, were now open to him
on account of his back symptoms.
Judgment was entered for the claimant
in March 2006. In July 2007, the issue of
causation and quantification of damages
were ordered to be tried as preliminary
issues. Following a hearing an award was
made for special damages. Directions
were given for a further hearing for
the assessment of general damages
for pain, suffering and loss of amenity
and future financial loss. The parties
were subsequently given permission to
rely on psychiatric evidence. Evidence
for the defendants was provided by a
consultant forensic psychiatrist, W. In
a report dated July 2009, W expressed
the view that, by the time of the
accident, the claimant had been “well
on the way towards” being a case of
undifferentiated somatoform disorder
(USD), a psychosomatic disorder which,
in the claimant’s case, was said to have
manifested itself by abnormal healthcareseeking behaviour. In his final report, W
observed that the issue of malingering
was one for the judge and, if the judge
was of the view that the claimant was not
deliberately exaggerating his problems,
then his view was that the problems were
due to the underlying psychological
condition, USD. The judge rejected W’s
diagnosis of USD and also his theory
that, absent the road traffic accident,
the claimant would have focused on
some other illness or trauma and would
have ended up with similar disabilities
to those he had. However, the judge
accepted that the claimant was a person
who made more of his injuries and
illnesses than other people might and
his award was reduced accordingly. He
awarded the claimant damages totalling
£461,007. The defendants appealed.
They contended that if the judge had
considered the evidence carefully and
had understood it properly, he could not
logically have rejected W’s opinion.
The appeal would be dismissed.
The judge had not erred in his
approach to W’s evidence. Viewed in
isolation the medical records could be
seen as presenting a picture of healthcare
attention-seeking behaviour which would
support W’s diagnosis of USD. However,
the medical records were not to be read
in isolation, but in the context of the
evidence as a whole. The judge had
summarised the evidence thoroughly at
an earlier stage of his judgment and it
had not been incumbent on him to refer
again to every facet of the evidence when
stating his conclusions. His conclusions
had not been perverse. It might be that
had W’s evidence been presented at the
first hearing and if he had undertaken a
thorough clinical examination as well
as examining the records before he
expressed his views, the judge might have
accepted his evidence and the award of
damages would have been very much
lower. In the circumstances, W’s opinion
had been expressed too late, when the
relevant findings of fact had already been
made and not appealed.
7
Legislation
Legislation update
Mesothelioma Lump
Sum Payments
(Conditions and
Amounts) (Amendment)
Regulations 2012
Enactment citation
SI 2012/Draft
Commencement date
1 April 2012
Legislation affected
SI 2008/1963 amended
Enabling power
Child Maintenance and Other
Payments Act 2008, ss 46(3), 53(1)
Amend the schedule to the Mesothelioma Lump Sum Payments (Conditions and
Amounts) Regulations 2008, SI 2008/1963 by substituting revised tables of lump
sum payments payable to people with mesothelioma or to their dependants.
Personal Injuries (NHS
Charges) (Amounts)
Amendment Regulations
2012
Enactment citation
SI 2012/387
Commencement date
1 April 2012
Legislation affected
SI 2007/115 amended
Enabling power
Health and Social Care (Community
Health and Standards) Act 2003,
ss 153(2)(5), 195(1)(2)
Amend the Personal Injuries (NHS Charges) (Amounts) Regulations
2007, SI 2007/115 (the principal regulations). The principal regulations make
provision about the charges payable under the scheme for the recovery of NHS
charges in cases where an injured person who receives a compensation payment in
respect of their injury has received NHS hospital treatment or ambulance services.
Make the following changes to the charges in respect of injuries which occur on or
after 1 April 2012:
■
■
■
■
where the injured person is provided with NHS ambulance services, the charge
is increased from £181 to £185;
where the injured person receives NHS treatment, but is not admitted to
hospital, the charge is increased from £600 to £615;
the daily charge for NHS in-patient treatment is increased from £737 to £755;
and
the maximum charge in respect of an injury is increased from £44,056 to
£45,153.
Make saving provision in order to maintain the existing amounts for injuries
occurring before 1 April 2012.
Community Care (Joint
Working etc.) (Scotland)
Amendment Regulations
2012
Enactment citation
SSI 2012/65
Commencement date
30 March 2012
Legislation affected
SSI 2002/533 amended
Enabling power
Community Care and
Health (Scotland) Act 2002
ss 13(1), 14, 15(1)(2)(4), 23(4)
SUBSCRIBE TO BUTTERWORTHS
PERSONAL INJURY NEWSLETTER
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Amend the Community Care (Joint Working etc) (Scotland) Regulations 2002
(SSI 2002/533) to specify new functions which may be delegated between NHS
bodies and local authorities.
The Regulations also make some adjustments to the accounting requirements
for arrangements under the Community Care and Health (Scotland) Act 2002,
ss 13–15.
Make amendments to the 2002 regulations regarding monitoring, payment
arrangements, pooled funds and terms in written agreements.
Prescribe the functions of a local authority which may be delegated to an NHS
body and also prescribes those functions which a local authority may use in
conjunction with functions which have been delegated to an authority by an NHS
body. Also make parallel provision for NHS bodies.
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