piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Sherlock Holmes in the Court of Appeal

"How often have I said to you that when you have eliminated the impossible, whatever remains, however improbable, must be the truth?”    The Sign of Four begins with a bored Holmes mired in cocaine addiction, much to the disquiet of Dr Watson. A young woman appears. She has a mystery that needs solving. Holmes solves it. He is cured from his addiction and, by the end of the book, the young woman is set to become Mrs Watson.    Amidst all the action comes the pronouncement quoted at the start of this post. It has become one of Holmes’ most enduring dicta on the science of deduction; so enduring, in fact, that his deer-stalkered head was reared in the Court of Appeal last month. The case was Graves v Brouwer [2015] EWCA Civ 595. It concerned a house fire, but the principles are of general application to many cases where a court is obliged to wrestle with competing theories as to causation.    Mr Brouwer and Ms Graves were next-door neighbours. Mr Brouwer was an odd man: he described himself as controlling to the point of being “anal”, a description the judge was happy to adopt. One day he decided to dispose of a small quantity of papers by burning them in the passage by the side of his house. He set them alight and then doused the ashes with a hose. Shortly thereafter, Ms Graves’ house caught fire. In due course she brought a claim against Mr Brouwer, alleging that the fire he started had somehow spread to her house.    Both parties instructed experts. They agreed that the chances of an ember containing sufficient residual energy to start a fire escaping from Mr Brouwer’s passageway and travelling to the eaves of Ms Graves house’ was small. However, the other possibilities were also not particularly attractive. One that was mentioned was “anting”, i.e. birds picking up smoldering cigarette ends and transporting them back to their nests. But there was no positive evidence of birds nesting under the eaves of Ms Graves house. The only other theory that was posited was that persons unknown had deliberately set fire to Ms Graves’ house, i.e. arson.   During cross-examination, Mr Brouwer’s expert was asked whether, if the court took the view that arson did not cause the fire, then on the balance of probabilities, the fire started by Mr Brouwer had to be the cause of the fire in the Claimant’s house, even if improbable. He replied in the affirmative.   The trial judge held that, but for the expert’s concession in cross-examination, she would have been minded to dismiss the claim on causation. But, having rejected the arson theory and the concession having being made, she felt compelled to find for the claimant on causation. She went on to find, however, that Mr Brouwer had not been negligent in the way he has carried out the “burn” and so the claim failed anyway. Both parties appealed. Ms Graves appealed the finding of negligence; Mr Brouwer cross-appealed the finding on causation.   The Court of Appeal took the opportunity to conduct a helpful exposition of the correct principles from the authorities, stretching back to the case in which Holmes made his first appearance in this field, namely The Popi M [1985] 1 WLR 948. That case was about a ship had been lost at sea. The trial judge was Bingham J (as he then was). The House of Lords held that he had fallen into error in deciding the case on causation because he had (albeit implicitly) translated Holmes’ dictum too willingly into a legal context.   What works in a fictional detective story does always not work in court of law. In practice, it is rare to be able eliminate all other possibilities. Some may exist but not have been suggested to the court; others will have been suggested but it will be impossible to eliminate them entirely due to deficiencies in the evidence. So it is incumbent upon a judge to step back and ask themselves whether a particular cause is more likely than not to be the correct one. The exercise is not one of identifying the least unlikely cause and then declaring that the correct one. If, having heard all the evidence, the judge remains of the view that the causal mechanism which establishes the claim is improbable then the claimant has failed to discharge the burden of proof and the claim must fail.    In Graves v Brouwer the Court of Appeal held, applying The Popi M, that the judge had been wrong to place the reliance she did on the expert’s answer in cross-examination. It went further. The question, it said, should not have been asked at all because it invite him to express a conclusion of question of mixed fact and law which it was the task of the judge to reach. The judge had, as a result, fallen into the same error as Bingham J in The Popi M by applying the Holmesian dictum too literally. She should have asked herself whether, all things considered, a flying ember from the fire started by Mr Brouwer was more likely than not to have caused the fire. She had not done so and hence had misdirected herself. So the Court of Appeal allowed Mr Brouwer’s appeal on causation. (It also, incidentally, upheld the judge’s finding on negligence for good measure). Judges may think they know all they need to know about probability because they apply the balance of probabilities every day. But if a judge as capable as the late Sir Thomas Bingham can get it wrong then any judge can get it wrong. Graves v Brouwer is a useful case to use if you want to ensure that they get it right.

“ .. Friends, Romans, personal injury lawyers ...!”

Or so Mark Antony might have said if Shakespeare had been around to reflect on the amendments to the CPR which come into effect on 6 April 2015. All the talk is of the changes to Part 36. But what of the new Part 87 which is being introduced as part of the continuing drive to replace Latin terms with simpler English language.   I confess to a fondness for Roman law having been made to study it as a student. I dutifully worked through “ius civile” (law of citizens), ius gentium (law of peoples) and other concepts. I learned about “ferae naturae-propter privilegium” (qualified property in animals) on which some modern legislation such as the Bees Act 1980 is based. Sadly I have not yet had the opportunity in practice to deploy this knowledge or what Justinian had to say about the sale of chariots and other “res corporalis”.   That is not to say that Roman law is irrelevant to personal injury lawyers.   Fairchild v Glenhaven Funeral Services Ltd and others [2002] UKHL 22; [2002] 3 All ER 305; [2003] 1 AC 32 is the seminal authority on indivisible injury in negligence cases. The claimants were negligently exposed to asbestos by multiple employers but were permitted to “leap the evidentiary gap” such that their employers were held jointly and severally liable.   Less well known are the references in Lord Rodger’s judgment to Roman jurisprudence and his observation [at §157] that “in a certain form, problems with unidentifiable wrongdoers had begun to exercise the minds of Roman jurists not later than the first century BC”. Lord Roger comments [at §158] on “D 9 2 51 Julian 86 digesta” written in the second century AD in which Julian discusses the “Lex Aquilia” and [at §159] on the later writer Ulpian in “D 9 2 11 2 Ulpian 18 ad edictum” both of whom considered the situation where a slave was killed by a number of people in such a way that it was impossible to say whose blow had caused his death.   On his way to finding causation proved in Fairchild, Lord Rodger notes [at §160] that “classical Roman jurists of the greatest distinction saw the need for the law to deal specially with the situation where it was impossible to ascertain the identity of the actual killer among a number of wrongdoers”.   The new Part 87 continue the process set in motion by Lord Woolf in June 1996 when he published his review of the civil justice system and writs gave way to claim forms, plaintiffs became claimants (although they remain plaintiffs in other jurisdictions such as Hong Kong) and hearings in camera would hence forth be hearings in private. Now, from 6 April 2015, habeas corpus “ad subjiciendum” becomes habeas corpus “for release”.   In “Beyond the Fringe” the great Peter Cook reflected that “I could have been a Judge but I never had the Latin for the judgin’”.   There is no longer any need for Peter or for others to worry.

A catastrophic getaway

  Mr O’Brien and his nephew Mr Joyce must be amongst the most incompetent thieves around. They stole a ladder from the front garden of a house and put it into the back of the van but could not close the door. Mr O’Brien drove the van off to make a speedy getaway whilst Mr Joyce hung onto the back of the van, standing on a footplate with the ladder under or over his right arm. He was holding onto the door or roof whilst a door was flapping around. The van lurched around a bend without reducing speed making Mr Joyce yet more unstable. Finally, on another bend he lost his grip, fell and suffered a severe head injury. Mr O’Brien seemed more concerned about trying to hide the ladders than helping his nephew. His excuses for the accident were inconsistent, ridiculous and not worthy of a schoolboy. He said that he did not know that his nephew was hanging onto the rear of the vehicle by the doors or ladders, that his nephew clambered through the back of the vehicle to secure the doors which had come open, that he was riding on the footplate as a ‘joke’ and that his nephew had got out of the van to secure the doors and was not on it at the material time. The judge commented that it was no surprise that nobody wished to call him as a witness or rely upon his evidence. The case was Joyce v Tradex Insurance Company Limited [2012] EWHC 1324;  the issue was whether Mr Joyce could recover damages for personal injury from Mr O’Brien when the claimant was injured whilst both were engaged in a joint criminal enterprise.   Cooke J found that Mr Joyce’s injuries were caused by the speed of the vehicle (essential to the getaway) and his position on the back of the vehicle (holding the ladders and the van whilst standing on the footplate). What Mr Joyce had done was so unusual as to be as causative of his injuries as Mr O’Brien’s driving. Accordingly the claim failed on causation. The claim also failed as a matter of general public policy: a participant in a joint enterprise theft which involves a speedy getaway in a van with a participant driving and the other clinging dangerously to the stolen items and the van cannot recover for injuries sustained in the course of that enterprise. The driver could not owe a duty to his co-conspirator and it was not possible to set a standard of care. What’s more, risk and danger were inherent in the enterprise. Accordingly Mr Joyce’s own criminal conduct precluded him from recovering. (Image Courtesy of Freefoto.com)  

Good with Food?

Case note: Josephine Mitchell & Others v United Co-operatives Limited [2012] EWCA Civ 348 Just occasionally the law reports provide us with a glimpse of the difficult working conditions that some employees have to endure (even where their employer is not to blame for such working conditions). Josephine Mitchell and others, decided by the Court of Appeal at the end of last month, is an example of such a case. The judgment (of Ward LJ) starts like this, “It is a sad feature of our suburban life that some areas are at high risk of crime. One such place is Shaw Road, Heaton Moor, a side road off the main road linking Stockport and Manchester”. Shaw Road had a small parade of shops and the shops included a Co-operative food store where the Claimant ladies were employed as shop assistants. The Court referred to a “Harsh reality” confronting the Co-op and those employed at the shop. The harsh reality was this, “There were two robberies in the eleven years before the Co-op acquired the premises but ten robberies between 25th February 2000 and 7th December 2005. These crimes were committed on 25th February 2000, when a shotgun was produced, 6th November 2001 when the robberies were armed with batons, 16th March 2002 when a knife was used, 13th January 2003, 11th March 2003, 20th December 2003, 24th June 2004 when Mrs Benton and Mrs Goodwin were the victims threatened with a screwdriver, 18th October 2005 and 7th December 2005 when Mrs Mitchell was the victim.”   The Claimants alleged that they had sustained psychiatric injury (specifically post-traumatic stress disorder and anxiety) as a result of the robberies. It was their case that their employer was liable for this and the resultant losses as a result of its breach of an (admitted) common law duty to take reasonable care to keep its employees reasonably safe (applying Swanwick LJ’s test in Stokes v Guest & Others [1968] 1 WLR 1776 (CA) as endorsed by Lord Mance in Baker v Quantum Clothing Group [2011] UKSC 17).   Prior to the robberies in which the Claimants were the victims, the Co-op had introduced a series of measures to reduce the incidence of robbery and these included CCTV monitoring, panic alarms, the provision of “smoke notes” which emitted dye when passing a transmitter at the doorway and a mobile security response team. There was evidence that the Co-op’s policy on the prevention of crime compared favourably with that of other retailers. However, the Claimants complained, first, that the Co-op had removed security screens when it acquired the store and should have installed such screens around the till. The second line of the Claimants’ argument was that the Co-op should have provided a security guard.   The Claimants’ claims were dismissed at first instance. HHJ Armitage QC (sitting in the Manchester County Court) concluded that a screen might have had some deterrent effect, but it carried risks for the staff which outweighed any benefit and so reasonable care for their safety did not require the provision of a security screen or enclosure. He was also satisfied that failure to provide full-time guarding did not amount to a failure to take reasonable care. On appeal, it was held: (1) The Judge had properly distinguished between measures which would have deterred robbers and measures which would have prevented robbery, the former being the correct consideration. His judgment was based on the deterrent effect of screens and of a full-time guard. The reasonable steps to be taken by the employer were to deter robberies; no employer could be expected to go so far as to prevent any robbery taking place. (2) The judge was also entitled to conclude that although a screen might have had some deterrent effect, it carried risks for the staff which outweighed that benefit. The issue was not only what deterrent effect screens would have on a robbery taking place but also what deterrent effect the presence of screens would have to guard the employees against psychiatric injury. (3) There was evidence that the store was running at a loss and a proper approach required a balance to be struck between the probable effectiveness of the precaution that could be taken and the expense involved (small suburban shops did not usually have a security guard permanently stationed). This case provides a rare example of common law pragmatism in the context of an employers’ liability claim: the taking of reasonable care involves the balancing of competing considerations. The Claimants’ experience was unfortunate (to say the least), but – looked at in the round – their employer was not liable for its consequences.      

“Safe sex?”

The New Year will hopefully bring with it important news from Australia for employees everywhere - particularly those having sex in hotels!   It has long been the law that an employee who is negligently injured in the course of employment is generally entitled to look to his or her employer for compensation.   However, in a case which is currently awaiting the delivery of a reserved judgment in the Federal Court of Australia, the time, place and conditions under which an “on-the-job” accident occurs has been the subject of anxious judicial scrutiny.   The Claimant, a female public servant, sued the Australian federal government after being injured while having sex on a work trip in a hotel bedroom. A glass light fitting came away from the wall above the bed as she was having sex striking her in the face and causing injuries to her nose, mouth and a tooth as well as “a consequent psychiatric injury” described as an adjustment disorder.   The Claimant’s partner’s evidence was that they were “going hard” and that he did not know “if we bumped the light or it just fell off”.  He added, not unreasonably, that he was “not paying attention because we were rolling around”.   The Claimant claimed compensation because her injuries were caused “during the course of her employment” as she had been instructed to travel to and spend the night in the hotel in a small town in New South Wales ahead of a departmental meeting early the next day.     ComCare, the Australian government's workplace safety body, rejected the claim on the grounds that sexual activity “was not an ordinary incident of an overnight stay like showering, sleeping or eating”. That decision was upheld by the Administrative Appeals Tribunal.   However, on appeal to the Federal Court, the Claimant’s counsel submitted that the accident was in truth “no different than slipping over in the shower”. In addition, “lawful sexual activity” should now be considered reasonable behaviour in a hotel room by an employee as “it's not the 1920s”.   Counsel for ComCare responded that people need to eat, sleep and attend to their personal hygiene but “you don't need to have sex”   The judge, Justice Nicholas, has reserved his judgment describing the case as “by no means easy”.   The judge is right to be cautious. Claims by employees have succeeded in the past when injuries have occurred in the course of employment related recreational activities involving drinking and socialising where negligence has been made out. It can be argued that being injured whilst having sex is no different provided that the injury occurred within an overall period or episode of work and negligence can be shown. Would the position be any different if, for example, the hotel had a gym and the Claimant had been negligently injured whilst working out on one of the hotel’s exercise bicycles or cross trainers?   The judgment may also provide useful guidance as to whether, at least in Australia, sexual activity should now be regarded by the prudent employer as a reasonably foreseeable part of an overnight stay in a hotel by an employee. If so, this will give a whole new meaning to the expression safe sex.  

HADLOW, CONFUSION AND REASONABLE FORESEEABILITY

When does the consequence of a breach of duty become so difficult to foresee that the chain of causation is broken? The answer to this question following the Court of Appeal’s judgment in the case of Hadlow v Peterborough City Council (20th October 2011, unreported*), is very rarely indeed.   The claimant was a teacher at a secure facility for potentially dangerous women operated by the council. The council’s policy was that teachers should not be alone in a locked room with more than two of the women. The teaching assistant due to attend a class with the claimant was running late. The claimant requested a member of staff attend in the classroom until the assistant arrived. However escorts brought the women to the classroom, locked the door and left. When the claimant realised, she tried to leave the classroom quickly to request an escort to stay. In the process she tripped on her chair and injured herself. The judge found the council in breach of duty for failing to provide the extra member of staff and that there was a causal connection between the breach of duty and the accident. No criticism was made of the condition of the chair or where it was positioned. It was argued on behalf of the Council that whilst injury might have been foreseeable if one of the women had been violent it was not foreseeable that the claimant would injure herself on an innocent chair in the absence of such violence. The Court of Appeal conceded that the accident had not occurred in the ‘most likely manner’. But it did occur as a result of the claimant acting reasonably to remove the risk and to remedy the council’s breach of duty. The court found that the risk of injury was foreseeable and, although it did not happen in a ‘likely manner’, the claimant being injured could be ‘sufficiently envisaged’ and therefore causation was established. All this rather begs a series of questions. Is it the case that once it is reasonably foreseeable that the claimant might be injured by the potentially violent women then causation is established for any injury she suffers even if they are not in fact violent? If that is correct, would causation be established if the circumstances were the same but she had simply tripped clumsily on her own feet or her hand bag? Doesn’t that introduce a quasi strict liability once breach of duty has been established? What if the claimant had walked into a sniper’s bullet: would that have completely broken the chain of causation and, if so, why? Another question is whether or not the question of reasonable foreseeability goes to the scope of the duty owed by the employer. It could be said that the scope of the employer’s duty was in fact limited to protecting the teacher from the violence of the women she was due to be teaching; it was not to protect her from her own misfortune of tripping over a chair. The questions go on. The Court of Appeal have apparently introduced a new test of whether or not  something can be ‘sufficiently envisaged’ and it is difficult to see what role that has to play. It is also difficult to see how an employer could say an hour prior to the accident when reviewing his risk assessment that it was reasonably foreseeable that injury could occur in an ‘unlikely manner’. Whilst this is perhaps all very confusing and fertile ground for academic musing, for practical purposes, all that can be said is that, in employer’s liability cases, the courts are very reluctant to allow causation to get in the way where breach of duty is established. Perhaps this case may go further…   *No transcript is yet available and so this is based on the Lawtel summary.

RSA Repair Costs - an end to the saga?

There has been a significant and until now unpublicised development in the long-running line of case concerning inflated repair costs claimed by RSA.   Well, as the judgment is on BAILII and publicised on the Judiciary Website, this is not quite an exclusive, but it is close!   Judgment was handed down in Kevin Fallows v Harkers Transport on Friday 2 September 2011. It came to my attention appearing at a trial the day before, when the district judge I was appearing before hinted very strongly that HHJ Platt in Fallows had come to a very firm decision in a case which should put this matter to bed. For what it is worth, the district judge in my case held that in his view these cases "were tantamount to fraud" and that counsel should go outside and "talk". The matter was settled by consent.   HHJ Platt, sitting at Romford County Court sought to clarify the situation as to various standard charges RSA was routinely claiming from defendant insurers, pursuant to an arrangement whereby their clients’ motor repairs were carried out by a subsidiary company. The judgment is somewhat scathing of this approach and suggests that simply this is a matter of the trite law of causation; reasonableness; mitigation and simply the obligation upon a claimant party to prove its loss.   The judge is also scathing as to the frequent refusal by RSA to disclose any proper invoices from repairing garages. The Judge held that by redusing to do so, the cases had little chance of settling without requiring a trial. At paragraph 60, the court held: “The court is left with the clear and unhappy impression that the provisions of CPR r 1.3 have simply passed by RSA and its solicitors unheeded both in this case as in others, and they remain in a mindset where the obligation to make proper disclosure is some kind of optional extra.”   Is this an end to the saga? HHJ Platt clearly intended his judgment to constitute some kind of final word. He held at the final paragraph that: “Although this is not a binding judgement in terms of the rules of precedent it carries a degree of authority which requires claimant's solicitors and advocates to carry out their professional duty to the court by bringing the judgement to the attention of any judge before whom they appear in any subsequent case in which these issues are litigated. Failure to do so may lead to costs orders under CPR 44.14.”   Read all about it at http://www.bailii.org/ew/cases/Misc/2011/16.html

Artists and events companies beware

The High Court today found a Liverpool events company to blame for the Dreamspace tragedy. Foskett J has found Brouhaha International Limited 55% to blame for the incident which saw a large, tent like, inflatable art structure designed by artist Maurice Agis take off in July 2006, killing 2 and injurying many more. The finding was made in contribution proceedings brought by Chester-le-Street District Council, the apportionment of blame being as between those two parties only. Had the now deceased artist, Maurice Agis, been a party to the proceedings it is likely he would have carried most of the blame. However, he was uninsured and had no assets.

Exaggerate and risk indemnity costs

In Desai vs North Essex Partnership NHS Foundation Trust [8MA25049; Judgment 19th April 2011, trial 14th February 2011; HHJ Knight QC; Central London County Court) the Court found that exaggeration of a claim could leave a claimant open to an award of indemnity costs against her. Mrs Desai had an incident at work on 28th December 2005 in an NHS psychiatric ward. More...