3 – 10 February 2011
Prepared by
Hannah Mitchell and Paul Greaves
Contents
Quantum
Jurisdiction
Costs
Press
Contact
To request cases or the full text of articles please contact:
Helen Cafferata
National Information Services Manager
helen.cafferata@blm-law.com
Quantum
(1)
JSB Guidelines:
PSLA:
Injury:
6(A(C)(ii)
£1,850
Soft tissue injuries neck and shoulders; headaches secondary to
neck pain
The 32-year-old claimant initially had a severe headache following a road traffic accident. On
examination two and a half months post-accident he had pain and restricted movement in his
neck and upper limbs. The headaches were mild to moderate at this stage. The expert’s
prognosis was for the headaches to subside within five-and-a-half months following the accident,
and for the whiplash injuries to resolve by seven-and-a-half months post-accident.
The judge noted that a physiotherapy discharge note prepared five months after the accident
confirmed that the claimant’s symptoms had gone. The judge’s approach was to ‘read between
the lines’ on the basis of the difference between the expert’s prognosis and the physiotherapy
record. He found that any symptoms between the five-month and eight-month stage postaccident would have been at nuisance level.
BLM acted for the defendant.
Booth v Pollard (2010)
See Lawtel doc AM0201665
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(2)
JSB Guidelines:
PSLA:
Injuries:
6(A)(c)(i); 6(B)(c)(ii)
£5,500
Soft tissue neck and back
The 48-year-old claimant suffered soft tissue injuries to her neck and back in a road traffic
accident. She was unable to use the gym for one year after the accident and required assistance
with domestic tasks.
The claimant continued to experience pain and stiffness at 18 months post-accident and was still
restricted in carrying out household chores. An MRI scan showed early degenerative changes of
the cervical and lumbar spine. The expert considered that two years of symptoms were due to the
accident, with symptoms beyond that caused by degenerative changes.
McCarthy v O’Neil (2010)
See Lawtel doc AM0201662
(3)
JSB Guidelines:
Total Damages:
Injuries:
N/A
£50,000
Pulmonary embolism and psychological symptoms
The 58-year-old claimant underwent two operations in 2003 and 2004 for gynaecological
problems. At the time of her second operation on 29 June 2004 it was known that the claimant
had a moderate to high risk of developing a pulmonary embolism and the intention was to cover
this with thromboprophylaxis (the practice of giving small doses of anticoagulant drugs to
individuals with an increased risk of thrombosis). However, this was not done.
By 2 July 2004 the claimant started to experience symptoms. She had been started on low
molecular-weight heparin for a possible pulmonary embolism. She was transferred to another
hospital on 5 July 2004 for a lung isotope scan but a instead a perfusion-only isotope lung scan
was performed. A pulmonary embolism was subsequently diagnosed.
The defendant admitted liability, as a result of the defendant’s negligence. The claimant suffered
a pulmonary embolism. Post-operative events led to further investigations, a transfer to another
hospital and a prolonged hospital stay. It also led to the continuation of anticoagulation therapy
and the claimant was required to make repeated visits to her GP for monitoring between July
2004 and January 2005.
The claimant had a slightly increased risk of further venous thromboembolism with a lifetime
probability of less than 25%. She had to stop taking HRT which she had been taking before the
surgery. Should the claimant be admitted to hospital in the future clinicians would need to be
made aware of the importance of instituting thromboprophylaxis.
The claimant suffered a psychological injury in the form of an anxiety state and a depressive
episode. She had morbid fears of a recurrence of the pulmonary embolism. A full recovery of the
psychological problems was not expected.
The claimant had to significantly alter her lifestyle. She was unable to drive for approximately six
months, she was no longer able to walk long distances and was unable to continue with her
previous employment as a barmaid due to loss of confidence and stamina.
The case settled out of court in the sum of £50,000 on a ‘global’ basis. No breakdown of
damages was given.
Mayhew v Nuffield Health (2010)
See Lawtel doc AM0201664
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(4)
Total damage:
Injuries:
£30,000
X suffered multiple organ failure and died
The claim was brought by the estate of the deceased woman (X) who underwent medical
treatment provided by the defendant between October and December 2005, and subsequently
died of multiple organ failure aged 67 years.
X had suffered significant deterioration in renal function. She underwent a CT scan with
intravenous contrast medium and was administered with the antibiotics before a gastroscopy.
She was admitted to the intensive therapy unit following a deterioration in her condition where
she suffered multiple organ failure. Her condition stabilised for a while but she needed further
regular dialysis for acute renal failure. Over the following weeks her condition deteriorated and
she later died of multiple organ failure.
The claimant brought a claim alleging that the defendant was negligent in:
(1) Not giving due care that her renal function was impaired;
(2) Not providing treatment suitable for her condition, and failing to take steps to prevent
further deterioration in renal function.
It was alleged that if the failures had not occurred, that her condition would not have deteriorated
and her life would have been prolonged. These allegations were supported by medical evidence.
The defendant accepted that X received sub-standard care but did not accept that negligent
treatment was the direct cause of death.
The case settled out of court for £30,000. Due to an underlying condition X had a poor prognosis
and this affected the value of the claimant’s claim.
Breakdown:
PSLA: £5,000
Bereavement award: £10,000
Special damages: £15,000 (funeral and associated expenses: £4,000; past loss
of services: £9,000; interest: £2,000)
C v King’s College Hospital NHS Foundation Trust (2009)
See Lawtel doc AM0201663
Jurisdiction
(5)
The claimants commenced proceedings against B (a Lebanese national), and two of his
companies. The claimant had contracted to purchase shares in an Italian company G. It alleged
fraud against B in that he deliberately concealed G’s financial position. Clause 7 of the contract
provided: ‘this agreement shall be governed by the law of England and the parties submit to the
non-exclusive jurisdiction of the English courts’.
An order was made granting the claimants the following: permission to serve the claim form out of
the jurisdiction on B at an address in Beirut; an extension of time to serve the claim form; an
alternative to service through diplomatic channels, and permission to serve untranslated
documents personally on B at the Beirut address.
Unsuccessful attempts were made to serve English proceedings on B personally. However, a set
of untranslated documents were delivered to B’s Lebanese lawyer who held a general power of
attorney on behalf of B. This lawyer signed for the papers and retained them for four months
before returning them. The proceedings were also served on English solicitors instructed by B.
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B issued an application to set aside the order giving permission to serve proceedings out of the
jurisdiction. B argued that the claimants had failed to satisfy the requirements set out in CPR
6.37(2) and (3); that there must be a real issue which it is reasonable for the court to try, and that
England and Wales must be the proper place in which to bring the claim.
The court held that the claimants had met the requirements of CPR 6.37 in demonstrating a real
issue to be tried. The English court would not be forum non conveniens on balance. However, the
claimant was entitled to commence proceedings in this country by the combination of its domicile
in an EU state and the non-exclusive jurisdiction clause. The fact that proper law of the contract
was English law was also a factor. Other issues such as residence, their language abilities, and
some of the events having taken place in this country were of less importance but pointed
towards the same result.
The claimants applied for a declaration that there had been good service of the claim form on B,
and an order further extending time for service. The court decided that CPR 6.15(2) (which
permits the court to order service by an alternative method before the claimant has tried to effect
service) could be used retrospectively in respect of issues as to service in proceedings where the
parties are within the jurisdiction and where the defendant is resident abroad.
The court was satisfied that the proceedings had properly been brought to the attention of the
defendant. Service through diplomatic channels in Lebanon had proved impractical and any
attempt to pursue it further would lead to unacceptable delay and expense. B had demonstrated
an unwillingness to cooperate with service of the proceedings, but it was clear his lawyers had
made him fully aware of the nature of the claim being brought.
(1) Albert John Martin Abela (2) Albert JM Abela SRL (3) Albert JM Abela Catering & Interactive
System Ltd v (1) Ahmad Baadarani (2) Cicines Ltd (2011)
See Lawtel doc AC012753
Costs
(6)
The appellant company (C) succeeded on one point of its appeal against a case
management decision, in being granted an order against the respondent (M) to disclose the
identity of a source of information. The other aspects of its appeal were found in M’s favour. C
argued that there should be no order as to costs.
Previously, C had been ordered to pay a sum on account of M’s costs pending detailed
assessment but did not do so. C was ordered to pay this sum into court when it was given
permission to appeal.
The Court of Appeal ordered C to pay 80% of M’s costs, and ordered 20% of costs in the
application. It would have been necessary to have a hearing on the aspects of the appeal found
in M’s favour even if the disclosure point had been conceded; this issue did not take time at the
appeal hearing, and it was not suggested that C was prejudiced in receiving the document five
days prior to the hearing. The amount which had been paid into court was security for M’s costs.
From this, C would pay the sum it had previously ordered to pay, and the 80% of costs summarily
assessed on the appeal.
(1) Consolidated Contractors International Co Sal (2) Consolidated Contractors (Oil and Gas) Co
Sal v Munib Masri (Costs) (2011)
See Lawtel doc AC0127530
(7)
This case concerned a dispute between a homeowner, Mrs Rolf, and a builder, Mr
Guerin. The contract broke down before the work was completed and Mrs Rolf issued a claim
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form on 3 July 2008 limiting her claim to £50,000. She later served amended particulars of claim
with items totalling over £90,000. The amount claimed was subsequently adjusted again,
apparently when Mrs Rolf engaged lawyers, and was reduced to nearer £50,000.
On 24 June 2009 the claimant made a Part 36 offer to settle the claim for £14,000, and she
indicated a willingness to mediate. Mr Guerin did not make an offer to settle until six days before
trial.
At trial in January 2011 the judge found that Mrs Rolf had repudiated the contract. In relation to
her allegations of defective work, she succeeded in only one out of three, and was awarded
£2,500 for this. Otherwise, her claim was dismissed. The judge made no order as to costs up to
the date of expiry of the June 2009 Part 36 offer but ordered Mrs Rolf to pay Mr Guerin’s costs
thereafter.
The Court of Appeal held that the judge had erred fundamentally in his appreciation of the
significance of R’s Part 36 offer. The Part 36 mechanism confers advantages upon a party in
pitching his offer realistically, and potential disadvantages to an offeree in declining. There is
nothing about the procedure which states that an offeror is to be prejudiced because he has
expressed his willingness to accept less than his open position.
Here, Mrs Rolf was the overall winner, but only just; she had succeeded on a particular issue
which had taken one and a half out of the four days at trial; Mr Guerin succeeded on the
repudiation issue but this was unpleaded; Mr Guerin had spurned Mrs Rolf’s attempts to settle
until too late in the proceedings, and this conduct was to be taken into account under CPR 44.4. It
was decided that no order as to costs did substantial justice between the parties.
Rolf v De Guerin (2011)
See Lawtel doc AC0127615
Press
(8) A constant revolution?
Reviews MGM Ltd v UK and Sibthorpe v London Borough of Southwark in the light of Lord
Justice Jackson’s proposals for civil costs reform.
See NLJ, 11/02/2011, p187
(9) Kettling matters
Considers the legality of the police control method known as ‘kettling’.
See NLJ, 11/02/2011, p196
(10) Nightclub … fight club
Discusses nightclub injuries and vicarious liability with reference to Everett v Comojo (UK) Ltd.
See NLJ, 11/02/2011, p206
(11) The mediation conundrum
Argues that mediation needs to be marketed to the public as an effective route to justice.
See NLJ, 11/02/2011, p207
(12) Stemming the tide
Asks whether making mediation compulsory prior to litigation would work in the UK.
See NLJ, 11/02/2011, p208
(13) ABI launches fraud register that will ‘save insurers millions’
Reports that the ABI is launching a fraud register to be run by the Insurance Fraud Bureau.
See Insurance Times, 10/02/2011, p8
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(14) Say goodbye to the compensation culture
Comments on the role the insurance sector could play in encouraging people to take more
responsibility for managing their own risks in the light of Lord Young’s health and safety review.
See Insurance Times, 10/02/2011, p29
(15) Armed and ready
Discusses the technology the insurance industry is using to fight fraud.
See Insurance Times, 10/02/2011, p30
(16) Third-party politics
Presents a range of insurance industry views on third party capture.
See Insurance Times, 10/02/2011, p32
(17) The fine gap in deterrence
Asks whether new sentencing guidelines for health and safety crimes have resulted in any
significant change in the levels of fines being imposed by the courts.
See HSB, January/February 2011, p4
(18) Fine highlights the need to plan for safe lifting
Comments on fines of £225,000 for an offshore engineering company and £18,750 for a heavy
lifting vessel company for breaches of the Health and Safety at Work etc Act 1974 s3(1) which
resulted in a worker requiring a leg amputation after he suffered a serious crush injury to his leg.
See HSB, January/February 2011, p16
(19) Lung cancer epidemic may have peaked in women
Reports on research from the Universities of Milan and Lausanne on workplace lung cancer rates
in women.
See The Independent, 09/02/2011, p6 or online
(20) Preventing catastrophic construction events
The HSE has published a new research report on preventing catastrophic events in the
construction industry.
See Croner News, 07/02/2011
(21) Updated guidance on vehicle lifts
The HSE has revised its guidance on vehicle lifts, clarifying what is required under the Lifting
Equipment and Lifting Operations Regulations 1998. The changes can be found in paragraphs
202 and 203 of HSG261 Health and safety in motor vehicle repair and associated industries and
INDG434 Working safely under motor vehicles being repaired.
See Croner News, 10/02/2011
(22) Chemical firm sentenced after worker suffers toxic burns
A company was fined £12,000 and ordered to pay £14,000 in costs after an employee was
injured by a chemical solution while mixing two chemicals together.
See HSE press release, 08/02/2011 or online
(23) Lichfield food firm prosecuted after conveyor incident
A company was fined £10,000 and ordered to pay £2,587 in costs after a man broke his arm
while cleaning a conveyor belt which was inadequately guarded.
See HSE press release, 08/02/2011 or online
(24) Company fined after failure to measure asbestos
A company was fined £10,000 its director was fined £5,000 and each was ordered to pay £3,391
in costs for failing to properly manage asbestos while demolishing a church. An HSE investigation
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found that no asbestos survey had been carried out and measures to protect the public and
employees had not been taken.
See HSE press release, 08/02/2011 or online
(25) Lincolnshire builder fined for leaving building at risk of collapse
A builder was fined £2,000 and ordered to pay costs of £1,051 after allowing workers to remove
structural parts of a building without supporting it properly during refurbishment work.
See HSE press release, 08/02/2011 or online
(26) Global packaging firm fined after worker’s fingers severed
A company was fined £5,000 and ordered to pay £2,553 after a worker clearing a blockage in a
machine injured his hand when it came into contact with 1.7 metre long rotating screw.
See HSE press release, 09/02/2011 or online
(27) Worker left in pain for two months after fall
A company was fined £15,000 and ordered to pay costs of £6,228.75 after a worker was hit on
the head by a falling lighting pelmet while carrying out refurbishment work at a retail park.
See HSE press release, 09/02/2011 or online
(28) Food producer prosecuted for repeated safety failings
A food manufacturer was fined £14,000 and ordered to pay £8,387.70 in costs after two incidents
in which employees suffered hand injuries. In the first an employee’s hand was amputated when
it became trapped in the rotating knives of an industrial tenderiser and in the second a worker
severed the end of two fingers whilst feeding plastic into a machine designed to seal food into
packaging.
See HSE press release, 10/02/2011 or online
(29) Two North East companies fined after worker suffered electric shock
A construction company was fined £5,000 with costs of £3,643.07 and a company which hired out
pump equipment was fined £2,000 with costs of £1,821.53 after a pump operator suffered serious
burns when the boom of the pump he was using came into contact with overhead power lines.
See HSE press release, 10/02/2011 or online
(30) Wimbledon carpenters fined for risking employees’ safety
A company was fined £15,000 and ordered to pay £3,203.80 in costs after an employee cut off
part of his right hand index finger whilst using a circular saw. An HSE investigation found that the
company’s employees were allowed to use machinery without ensuring they were adequately
trained, informed of safe working practices or supervised.
See HSE press release, 10/02/2011 or online
(31) Power company fined £120,000 after worker is crushed to death
A company was fined £120,000 and ordered to pay costs of £30,735 after a worker suffered fatal
injuries when a 700 kg bale of straw fell on him from an overhead gantry crane.
See HSE press release, 11/02/2011 or 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
7
TLR
- TIMES LAW REPORT
OHR
- OCCUPATIONAL HEALTH REVIEW
If you have any further questions on the content, please contact the editor(s).
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