09/10/2008 – 16/10/2008
Prepared By
Malcolm Keen and Daniel Verow
Contents
Case of the week
Liability
Quantum
Press
Contact
Helen Cafferata
National Information Services Manager
helen.cafferata@blm-law.com
Case of the week
(1)
In a claim arising out of a contract dispute, in the construction of the new Wembley
Stadium, the Court of Appeal had to consider costs where the defendant subcontractor (B) had
repudiated its contract with the claimant. Several claims and counter claims were brought. In one
head of loss, it was held that M was entitled to damages of £151,305 in respect of certain defects,
but was only entitled to nominal damages of £2 in relation to the repudiation; B had offered
£500,000. M proposed that B should pay all outstanding costs of the action. B argued that M
should pay most of the costs.
Held: Authority exists in the approach to costs where one party makes an offer which is not quite
sufficient, but has been rejected without further negotiation. Because the final result of the claim
was that B had to pay M £6.154 million, M was deemed the successful party and the starting
point was that M was entitled to its costs. However, B’s success in relation to the defects
argument and award of £151,305 (when it had offered £500,000) had to be reflected in the costs
order. It was possible to make a proportionate, rather than an issue based costs order, M acted
unreasonably in rejecting B’s offer of £500,000. M was not entitled to its costs in relation to this.
In relation to the £2, M had only recovered nominal damages – B should recover its costs in
relation to this (40% of the costs in the action). The overall result of this assessment was that M
should recover about 10% of the costs in the action. However, the main reason why the claim had
not settled was that B never made an offer to settle the entire proceedings. In all the
circumstances, M should be awarded 20% of the costs.
Multiplex Constructions (UK) Ltd (claimant/part 20 defendant) v (1) Cleveland Bridge UK Ltd (first
defendant/part 20 claimant) (2) Cleveland Bridge Dorman Long Engineering Ltd (No 7) (second
defendant) (2008)
See Lawtel doc no. AC0118553
Liability
(2)
This case was an application for judicial review of a report of the Health Service
Commissioner into complaints surrounding the treatment of a patient who died in January 2002.
The claimant, a surgeon, had performed a cardio-oesophagectomy on the patient. The patient
died some weeks later. The patient’s family complained about the care received to the
Commissioner.
Some of the Commissioner’s findings were critical of the claimant’s clinical judgments. The
claimant submitted that the Commissioner had failed to apply the Bolam test to questions
regarding clinical decisions made by the claimant and reached incorrect factual conclusions.
The Commissioner was not bound to apply the Bolam test to questions of clinical negligence. The
High Court considered that, as a matter of principle, it was for the Commissioner to decide and
explain what standard he applies before making a finding of a failure in service and that standard
will not be interfered with by a reviewing court unless if reflects an unreasonable approach.
The Commissioner had stated that the test to be applied in relation to whether clinical judgment
was unreasonable was one indistinguishable from the Bolam test. However, the Commissioner
misdirected himself by applying a different standard to the question whether the claimant had
acted unreasonably in the management of the patient after his discharge. The court also held that
the factual conclusions of the report were adequately explained.
Stephen Atwood v Health Service Commissioner (2008)
See Lawtel doc no. AC0118587
Quantum
(3)
Injury:
Strabismus and amblyopia in left eye
PSLA Award: £20,000
JSB Guidelines:
Chapter 4 (A)(f)
Distinguishing features: The claimant, three years of age at the date of the accident and 13 at
date of settlement, had visited the defendant optician several times in relation to a squint between
1998 and 2002. The defendant concluded that there was nothing of concern. The claimant was
eventually diagnosed as suffering from amblyopia with no binocular visual function which reduced
her vision in the left eye to 6/60. The claimant had to sit at the front of the class at school, had to
use books with large text and experienced difficulty in judging speed and distance. There was a
prospect of the eyesight in her left eye improving.
A v PG (2008)
See Lawtel doc no. AM0201290
(4)
Injury:
Sprain to lower back, neck and shoulder
PSLA Award: £1,200
JSB Guidelines:
Chapter 6
Distinguishing features: The claimant, 24 at date of accident suffered injuries similar to
whiplash when the defendant’s vehicle hit the vehicle in which he was a front seat passenger. Full
recovery was expected between three and four months after the accident.
Ajit Shergill v Ramandeep Grewal (2007)
See Lawtel doc no. AM0201289
(5)
Injury:
Whiplash
PSLA Award: £2,500
JSB Guidelines:
Chapter 6 (A)(c)(ii)
Distinguishing features: Claimant suffered injury when her stationery car was struck from the
rear by another vehicle. Her medical expert attributed 12 months of symptoms to the accident.
Royle v Roberts (2008)
See Current Law Week, 26/10/2008, Volume 16, Issue 34/2008, Para 16.34.9
(6)
Injury:
Whiplash
PSLA Award: £2,450
Distinguishing features: The claimant suffered whiplash injury to her neck, seat belt bruising to
abdomen and travel anxiety after a road traffic accident. The prognosis was that symptoms of
travel anxiety would settle within 10 months after the accident.
Taylor v Hands (2008)
See Current Law Week, 26/10/2008, Volume 16, Issue 34/2008, Para 16.34.10
Press
(7) Opinion: pleural plaques compensation
Two points of view on the setting up of a no-fault compensation scheme for pleural plaques.
See SJ, 14/10/2008, p7
(8) Culture of change
Comments on the CJC’s recommendations for collective actions in England and Wales.
See SJ,14/10/2008, p8
(9) Update from the courts
Considers nervous shock and fraudulent claims.
See NLJ, 10/10/2008, p1400
(10) Limitation and substitution
Discusses how courts deal with the addition and substitution of parties after the expiry of
limitation periods.
See NLJ, 10/10/2008, p1410
(11) Who takes the blame?
Examines cases of death in action.
See NLJ, 17/10/2008, p1438
(12) Expert evidence from witnesses of fact
The pitfalls of drafting witness statements.
See NLJ 17/10/2008, p1449
(13) The definition of work equipment
Considers Spencer-Franks v Kellogg Brown & Root Limited.
See LSG, 09/10/2008, p21 or online
(14) Moving to alternate methods of resolution
The benefits of mediation in personal injury cases.
See LSG, 16/10/2008, p16 or online
(15) Plaque pay-outs nearer as Scottish bill endorsed
The Scottish Parliament’s justice committee have rubber stamped their government’s bill to make
pleural plaques compensable.
See Insurance Times, 16/10/2008, p4
(16) The time bomb
Claims from people exposed to asbestos are still a concern for insurers.
See Insurance Times, claims doc 50 supplement, 10/08/2008, p27
(17) Driving into danger
Considers employees killed on the road while on their employer’s business, in the light of the
Corporate Manslaughter and Corporate Homicide Act.
See Health and Safety Briefing, 24/09/2008, p3
(18) Construction (Design and Management) Regulations - one year on
Assesses the impact of the Construction (Design and Management) Regulations 2007.
See Health and Safety Briefing, 24/09/2008, p6
(19) The blunt instrument of public policy
Recent challenges to the long standing principle of ex turpi.
See PILJ, October 2008, p2
(20) Treating outside of the box
Looks at pain management programmes.
See PILJ, October 2008, p6
(21) Pinpointing responsibility
Guidelines on litigating MRSA cases.
See PILJ, October 2008, p9
(22) Indexation of future care costs
Issues still to be resolved following Thompstone.
See PILJ, October 2008, p13
(23) The price of success
Additional fees due from conditional agreements after personal injury cases and Holliday v EC
Realisations Ltd.
See PILJ, October 2008, p16
(24) Asbestos victims receive support from MSPs
Scottish people with pleural plaques have received the support of the Scottish Parliament's
Justice Committee.
IOSH press release 14/10/2008 or online
(25) Surgical blunders mean NHS faces £12bn compensation bill
According to official figures the NHS might have to pay more than £12bn in compensation to
patients, which equates to about 10% of the annual budget.
See the Daily Telegraph, 16/10/2008 p10 or online
(26) Court win heals shoe lover's pain
A district councillor who cannot wear her collection of high heels after a fall has won the right to
compensation.
See BBC News 16/10/2008 or online
(27) Damages for thirsty woman's death
A Merseyside hospital trust has paid damages to a family whose mother ’died of thirst’ after a
week in its care.
See BBC News 17/10/2008 or online
(28) Man who walked into bus can claim
A man who walked out in front of a bus in Wakefield without looking has won the right to a sixfigure compensation payout, the Court of Appeal ruled.
See BBC News 17/10/2008 or online
(29) Key risks in motor vehicle repair
The HSE has recently updated its information on key risks for body shop workers and mechanics
in the motor vehicle repair industry.
See Croner News 17/10/2008
(30) Ministers welcome tougher penalties for health and safety law breakers
The Health and Safety Offences Act 2008 raises the maximum penalties that can be imposed for
breaching health and safety regulations in the lower courts from £5,000 to £20,000 and the range
of offences for which an individual can be imprisoned has also been broadened. It received Royal
Assent on 16 October 2008 and will come into force in three months time, in January 2009.
See DWP press release 17/10/2008 or online
(31) Landlord fined £5,500 after double carbon monoxide poisoning in Hackney
The landlord of a block of flats was fined £4,000 and ordered to pay £1,500 costs after various
people on the premises had to be treated for the effects of CO poisoning.
HSE press release 14/10/2008 or online
(32) Trust fined over scalding death
A healthcare trust has been ordered to pay £20,000 following the death of a man who was
scalded in a bath.
See BBC News 15/10/2008 or online
(33) Recycling firm fined after employee falls from lorry in Lincoln
A company was fined £2,500 and ordered to pay £2,454 costs after an employee stood on a
fridge unit while attempting to move another unit on top of it to prevent it sticking out of the side of
the vehicle, when he lost his balance and fell around ten feet to the ground.
HSE press release 15/10/2008 or online
(34) HSE warns companies to properly maintain machine guarding after Essex worker lost
finger tip
A company was fined a total of £4,000 and ordered to pay costs of £2,855 after an employee
unblocking a machine used for shredding orange peel which had inadequate guarding was able
to reach into the machine while it was still running. The tip of their index finger touched a rotating
bladed roller and was cut off.
HSE press release 16/10/2008 or online
(35) HSE warns about dangers of falling from vehicles following death of tanker driver
A company was fined a total of £5000 following the death of a tanker driver who fell three metres
from the top of his vehicle after setting the valves for a delivery of liquid animal feed. There was
no safety rail on the driver’s side of the vehicle.
HSE press release 17/10/2008 or online
(36) Survey company prosecuted as HSE campaign to raise awareness of asbestos danger
begins
An asbestos surveying company was fined £18,000 and ordered to pay over £21,000 in costs for
failing to identify asbestos insulation board in school buildings during a series of surveys carried
out ahead of construction work.
HSE press release 17/10/2008 or online
Legislation
(37) Health and Safety (Offences) Act 2008 c.20
An Act to revise the mode of trial and maximum penalties applicable to
certain offences relating to health and safety.
Coming into force:
16/01/2009
See the Office of Public Sector Information
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
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