piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Foreign Law in the English Courts

A number of the English lawyers who conduct PI litigation in cross-border cases have warned that the full implications of the Rome II Regulation (864/2007) – and the impact that it has on the assessment of damages awarded to English Claimants by English Judges – have yet to be felt. By way of recap, Rome II provides (in Article 15(c)) that once the applicable law of the tort has been identified it will apply (among other things) to the existence, the nature and the assessment of the damages to which the Claimant is entitled. In other words, (and by contrast to the previous position under the Private International Law (Miscellaneous Provisions) Act 1995) Rome II extends the reach of the foreign applicable law beyond the identification of heads of recoverable loss and into the assessment of damages process itself. This means a much greater role for foreign legal experts in the English Courts and it also means that English Judges may find themselves confronting (on a regular basis, given the volume of EU RTA claims in the English jurisdiction) vexed foreign law issues which have not been clearly resolved in the foreign jurisdiction from which they derive. In this sense, an English Judge may be called to determine (if you like “to make”) German/French/Lithuanian (delete as appropriate) law. Soole J confronted a dilemma of just this kind in the very recent case of Syred v PZU SA [2015] EWHC 254 (QB) (12.2.16): a PI claim by an English Claimant against a Polish insurer Defendant in respect of an RTA in Poland (to which the English Court applied the law of Poland). One of the issues confronting the Court was the assessment of (what we would call) general damages for pain, suffering and loss of amenity. Polish law provided no fixed scales or guidelines for such damages, but there was evidence that Polish Judges tended to use the non-pecuniary elements of a table or tariff published in an Ordinance by the Polish Labour Ministry. So far, so good, but the additional expert evidence was that the Polish Supreme Court had criticised the use of the Ordinance in this way. Despite this, the Polish lower Courts had continued to use the Ordinance and the Supreme Court had failed to provide an alternative method of calculation of such damages. What was the English Judge to do? The use of the Ordinance was (per Polish Supreme Court) unlawful where it was the sole method of assessment of general damages, however, it was a continuing convention of the Polish Courts to have regard to the Ordinance (in the "overall" assessment process) and it was, therefore, permissible for the English Judge to have similar regard in assessing damages (see, Wall v Mutuelle de Poitiers Assurance [2014] 1 WLR 4263 (CA)). Soole J went ahead and assessed damages accordingly. This looks like a pragmatic solution: after all, the Judge has to find some means by which to make the appropriate award. However, it also looks like an English Judge has resolved an issue of Polish law that the Polish Courts have yet wholly to resolve for themselves. One wonders whether Soole J’s decision will have any precedent value in Poland?

T’is the season to be techie ….!

This is the time of year for families …. and for gadgets. Lots of them! In particular, smartphones. An average 65% of children in the UK aged between 8 and 11 now have their own smartphone.   This figure rises to 90.5% in Newcastle making it the smartphone capital of the UK for children. This compares with 55.2% in London and only 40% in Brighton and Hove.   All this and more is contained in a survey by Internet Matters (www.internetmatters.org) which also revealed that 72% of parents will have bought tech gifts for their children this year.   For those looking forward to getting back to drafting or responding to schedules of aids and equipment in the New Year the challenge is to wise up and become more e-savvy about equipment claims in 2016.   Also out before Christmas was the latest statistical bulletin from the Office of National Statistics (ONS) (www.ons.gov.uk) on families and households in the UK in 2015.   As a result, those grappling with accommodation claims in 2016 may need to reconsider some of the assumptions often made in schedules and counter schedules, for example, that a person will cohabit throughout his or her life and about the likely age at which a person is likely to leave home.   Although in 2015 in the UK there were 12.5 million people living in a married or civil partner couple family and a further 3.2 million living as a cohabiting couple family there were also 7.7 million people in the UK in 2015 living alone. The largest change – and, according to the ONS, one that is statistically significant - is in people aged between 45 and 64 where the number living alone has increased by 23% between 2005 and 2015.   In 2015 around 40% of young adults in the UK aged between 15 and 34 were still living with their parents. In 1996 around 5.8 million people aged between 15 and 34 in the UK lived with their parents. This figure increased to a peak of 6.7 million in 2014 and has remained at around 6.6 million in 2015.   Looking forward, Christmas wish lists are likely to continue to be dominated by tech gadgets and devices. However, in 2016, at least for parents, the focus may be less on paper chains and party games and more on parental controls and privacy settings.   A Happy New Year to all our readers!

Stroke Caused By Beauty Facial Case Settles

Claims against negligent beauticians and the like are not altogether uncommon. The injuries tend to be dermatological in nature consequent of some allergic reaction to an untested product. But who would have thought it possible, let alone likely, for someone to suffer a stroke as a result of a beauty facial treatment? Tragically that is what happened to Elizabeth Hughes after her visit to the spa at the Eastwell Manor Hotel. What should have been a weekend treat resulted in a serious stroke that left her disabled for life. Her claim, which otherwise would have been tried in the High Court this week, settled for an undisclosed amount. How did it happen? The medical experts on both sides were agreed that the stroke occurred as a result of a dissection to the carotid artery. The dissection was in all probability caused when beauty cream was massaged onto the sides of her neck by the beauty therapist. The issue was whether she was negligent or had applied an excessive degree of force. Unlike sports injury or deep tissue massages, where there are reported cases of stroke, this was a novel situation. This type of injury had not been encountered previously by beauty therapists. Mrs Hughes who was employed by the NHS as a nurse was left significantly disabled. Her disabilities prevented her from returning to employment in the nursing sector. The case has been watched closely by the beauty industry and the press. (http://www.mirror.co.uk/news/uk-news/nurse-disabled-stroke-after-allegedly-6798935) Elizabeth Hughes was represented by Edward Bishop QC and Kiril Waite at 1 Chancery Lane, instructed by Ciaran McCabe at Moore Blatch Legal Resolve.

Retiring gracefully ... and gradually?

Most personal injury lawyers think a lot about retirement. This can be their own, in my case usually when grappling with costs budgets, but is more likely to be that of the party whose claim they are advancing or opposing. The date of retirement is crucial to the value of a loss of earnings claim.   Most personal injury schedules claim full time working to age 68 or even 70. Most counter schedules contend for retirement at age 65.   However, new research shows the way people view retirement is changing. Nearly two-thirds of people aged over 50 no longer think that working full time and then stopping work altogether is the best way to retire and around half would still like to be in work aged between 65 and 70.   YouGov surveyed more than 2,000 retired and non-retired people aged over 50.   https://yougov.co.uk/news/2014/11/05/concept-gradual-retirement-attracts-non-retired-ad/   The survey showed:   39% of over 50s not currently retired said that working part time or flexible hours before stopping work altogether would be the best way to retire. 48% of those under 65 and not currently retired would still like to be in work between 65 and 70. 36% of retirees say their advice to others would be to “consider switching to flexible or part time work for a period first” before stopping work altogether. 33% of those over 70 and still working said they did so because they enjoyed it.   The survey also suggests that some non-retired people over 50 both in and out of work were ready to learn new skills. Nearly half (47%) said they were interested in attending training courses to learn new or to update existing skills.   There are lessons here for both schedulers and counter schedulers. An absolute retirement age of 65, 68 or even 70 may now be unrepresentative. Gradual retirement is increasingly the trend at least in England and Wales.   In “The Later Years of Thomas Hardy” (Macmillan, 1930), Florence Emily Hardy reports the author’s observation that:   “The value of old age depends upon the person who reaches it. To some men of early performance it is useless. To others, who are late to develop, it just enables them to finish the job”.   I cannot promise still to be working beyond age 70. If I am, I can promise it will not be on costs budgets!  

Schedules, Counter Schedules and the Gadget Generation

    No self-respecting Schedule of Loss is now complete without a hefty claim for “Assistive Technology” items. The response in most Counter Schedules is that the Claimant is likely to have possessed all or some of the items being claimed in any event. The fact is that UK parents now spend a combined £2.25 billion a year or just under £300 per year per household on technology for their children.   This information comes from research on behalf of E.ON UK, one of the UK’s large energy providers.   http://pressreleases.eon-uk.com/blogs/eonukpressreleases/archive/2014/07/25/2376.aspx   We are truly the “gadget generation” in that today’s children possess an average of 4 gadgets each.   Staggeringly, parents with children aged under 5 spend even more. On average a “techie tot” is given gadgets costing £395 per year. Not surprisingly, it is teenagers aged 15-17 who are the most “plugged-in” typically owning 7 devices each.   The trend continues into adulthood. From age 18, parents of males spend over £717 a year on gadgets for their sons. Females aged 18 and over have just under £1,000 worth of gadgets bought for them by their parents per year.   It will come as no surprise to readers not in these age groups to learn that most (56%) of parents acknowledge using their children's “technology hand-me-downs”. 32% of parents also confessed to not being as “tech-savvy” as their children. Most worryingly of all, 14% of parents admitted that they could not even match their “techie tots” when it comes to knowing their way around the latest gadgets.   Perhaps the Counters Schedulers have a point?

Want to live longer … Move to Dorset!

Dorset is the birthplace of Thomas Hardy. Hardy loved the Christmas season and his novels, short stories and poems are full of references to it. My favourite Hardy novel “Under the Greenwood Tree” begins on Christmas Eve.  Dorset now has another attraction. It has the highest average life expectancy in the UK with men living to 83 years and women to 86.4 years. The Office for National Statistics has recently published its “Interim Life Tables, England and Wales, 2010-2012”.  http://www.ons.gov.uk/ons/publications/re-reference-tables.html?edition=tcm%3A77-325699 These will be of interest to personal injury lawyers tempted to spend part of the Christmas period doing schedules or counter schedules. The headline points are that life expectancy in England and Wales has increased by more than a year in the past decade. However, the distribution of life expectancy across England is still characterised by a north-south divide with people in local areas in the north generally living shorter lives than those in the south. Boys are also narrowing the gap on girls when it comes to life expectancy in England and Wales. The ONS reports that baby girls born 30 years ago were expected to live six years longer than boys. Now it is less than four. This is because fewer men now work in heavy manual labour which historically had high death rates as a result of industrial accidents. They are also less prone to diseases that affected workers in certain industries, such as mining. In contrast, women who might once have stayed at home have taken on the stress of working. In addition, many women also care for children or ageing relatives or both as well as providing for their family financially. Kathy Gyngell, a research fellow with the Centre for Policy Studies, observes that   “We are increasingly seeing more women suffering from what were once male diseases – heart disease, high blood pressure, even baldness”. In case you were wondering men in Blackpool have the lowest average life expectancy at 73.8 years while the lowest for women is in Manchester at 79.3 years. As well as Christmas, Thomas Hardy also had a view on old age: “The value of old age depends upon the person who reaches it. To some men of early performance it is useless. To others, who are late to develop, it just enables them to finish the job”. Florence Emily Hardy, “The Later Years of Thomas Hardy” (Macmillan, 1930). To late developers everywhere, Happy Christmas!

The Rolls Royce of hire claims...

  This is the latest round in the Court of Appeal in the battle over car hire (Singh v Yaqubi [2013] EWCA Civ 23). The rear door of Mr Singh’s Roller was dented in a road traffic accident. The car took 54 days to repair and the hire bill claimed from the defendant was £92,953.90. Mr Singh was in partnership with Mr Thakrar in a property development business and the Rolls Royce was one of the fleet of seven vehicles owned by the partnership. The judge dismissed the hire claim in its entirety. In doing so he admitted to anxious thoughts about ‘whether the ever increasing insurance premiums of the ordinary motorist, particularly one struggling to make ends meet and needing a modest car to go to work, should in some part be used so that the rich may continue at no expense to themselves to be filled with good things that they think they need.’ In response to Mr Singh’s case that he used the Rolls Royce ‘to maintain the correct impression’ in the circles in which he did business, the judge commented ‘well, what a testament that is to the superficial if not false nature of the warped values of society…’ The Court of Appeal discouraged such comments but concluded that the manner and openness of their expression encouraged a conclusion that the judge was well aware of his responsibility to decide the case on legal principles and in accordance with the evidence. The Court also dismissed the remainder of the appeal concluding that the burden was on the claimant to show a reasonable need for a replacement Rolls during the period of repair. The required need was the need of the partnership and that need was not self-proving. If need is not proved then questions arising out of the reasonableness of measures in mitigation do not arise. That principle had not been weakened by cases following Giles v Thompson.  An important point to note is that the need was put in issue in the defence. It was for the claimant to establish it and if successful, the defendant would have had to show that it had not been met in a reasonable manner. The Court commented that very large hire claims should be scrutinised very carefully. The judge was entitled to require specific evidence of need such as evidence of the actual use of the vehicle for business purposes before the accident and the use to which the hired vehicle was put during the period of hire. This is a helpful case for defendants where a large hire claim is made on the basis that the vehicle is needed for business use. However the Court contrasted business use with a claim by a private motorist. The evidential threshold for the private motorist to establish reasonable need is much lower. The court cited Lord Foscote in Lagden:  he said such a motorist may not be able to predict what particular use will be made during the period of hire; it may just be about convenience and not avoiding some financial loss he or she might otherwise have incurred. The battles continue…. (Image Courtesy of www.freefoto.com)

Personal Health Budgets and Heads of Loss - Assistance Animals?

The Times today carried an article entitled “NHS will cough up for music lessons and manicures.” It was referring to the three year trial of personal health budgets, whereby people in the NHS Continuing Care programme are able to determine themselves, how best to spend the money allocated to them.    Their budgets are of course typically spent on many items one routinely sees in schedules of loss, namely: carers, mobility aids, domestic assistance and medical expenses. However, the article makes reference to less usual expenses, such as manicures, hairdressing, musical instruments, theatre trips, craft materials and cooking utensils. The article mentions one woman with depression, using some of her budget to learn dress-making; another with multiple sclerosis, having used theirs to purchase a cat and reflexology sessions; and another with chronic lung disease, using theirs for singing lessons.   It is clear that such disperate, diverse and unusual uses for the personal health budgets were greatly therapeutic to the individual patients. However they are rarely seen claimed for in domestic personal injury cases.   Particularly, the use of “assistance animals” is something which is not always appreciated in the UK (beyond guide and hearing dogs), as it is in other parts of the world. Certainly in the USA they are medically recommended by physicians to help temper the symptoms of a range of physical and psychological illnesses. The author has had some experience of observing a case in the US Federal Court in May of this year, involving a woman with depression allegedly caused following a personal injury, who had a rather fine Airedale terrier who was trained to demand attention when it sensed his mistress was feeling low, thus distracting her from her condition. She described the dog as being essential to her health and wellbeing and hinted that he had prevented several suicide attempts. Should personal health budgets become the norm, the range of expenditures is likely to broaden away from the more conventional expenses associated with long term care. This will undoubtedly affect the range of heads of loss litigators are likely to come to have to consider. Should “assistance animals” become to be more recognised as an effective non-medical means of mitigating the symptoms of injuries (probably more commonly psychological), lawyers can expect to increasingly come across claims for the same. Perhaps in time, it will be necessary to have Ogden Tables for the life expectancy of different types or breeds of animals, or suggested actuarial tables relating to the cost of their keep.       NB, these cats are NOT assistance / service animals  

Quantifying Future Loss of Earnings: Ward v Allies & Morrison Architects [2012] EWCA Civ 1287

At the quantum only trial of a personal injuries matter, HHJ Cleary held that he did not have sufficient evidence pertaining to the claimant’s level of likely future earnings and the likely duration therof. Nor was he satisfied that the claimant was disabled. Accordinly, the trial judge made a lump sum award of £30,000 to allow the claimant to retrain following Blamire v South Cumbria HA [1993] P.I.Q.R. Q1, in addition to some £24,000 in general damages and £19,750 for past loss of earnings. The Claimant appealed on the contentions (amongst others) that the Judge should have used the Ogden tables to calculate lost future earnings (expected to quantify a loss of £176,633.46 on the basis that the Claimant expected to become a theatrical model maker) rather than have made a broad brush Blamire award.   The Court of Appeal (Aikens LJ, Kitchen LJ & Sir Richard Buxton) held that whilst the Ogden tables should be the usual method of quantifying such loss, this depended on the court’s ability to make findings of fact as to the likely earning capacity of a claimant, which the Judge in the instant case was unable to do. It was re-emphasised that it is for a claimant to prove their loss in this regard. In the instant case it was held that the judge was entitled to hold that there were too many imponderables to have allowed a firm finding as to the Claimant’s likely career progression and thus her future loss of earnings award. Thus the Judge was entitled to make a Blamire award.