piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Fighting fraud

Judgment in the case of Da Costa v Sargaco [2016] EWCA Civ 764 was handed down last week and represents the latest round of the struggle between claimants bringing claims for injury or damage arising out of road traffic accidents and defendant insurers alleging that claims are fraudulent. The case deals with the cogency of evidence required to establish an allegation of fraud, with the inferences which can be drawn from evidence and with the exclusion of a claimant from court whilst the other is giving evidence. The facts of the case conform to a familiar pattern: a claim for losses arising out of damage to mopeds brought by members of a certain community in London. The claimants’ case was that their parked mopeds were struck by a vehicle, the driver of which had apparently disappeared or at least had not participated in proceedings*. One of the claimants had had three other accidents despite having only arrived in the country in 2010. One of the claimant’s mopeds was involved in another accident etc… The judge ordered each claimant be excluded from court whilst the other gave evidence. She subsequently found that the claimants had not proved their case, she went further and made a finding of fraud and she found they had failed to establish their claim for damages. The judge’s decision was challenged on the ground that the case of Hussain v Hussain and Aviva [2012] EWCA Civ 1367 established “the parameters of appropriate inferences that can be drawn in a case where fraud is alleged, but there is no direct evidence connecting parties alleged to be in a fraudulent conspiracy.” Black L.J. found that “what inferences are appropriate depends entirely on the particular facts of the particular case” and dismissed this ground of appeal. The Court of Appeal was not willing to interfere with the judge’s finding that the claimant’s cases were not proven illustrating the mountain appellants have to climb to overturn a judgment on this basis. Black L.J. spelt out that a finding of fraud does not inevitably follow from a rejection of an accident claim as not proved. She went on to find that the judge did not make sufficient findings or provide sufficient reasoning to substantiate the fraud finding she made against the claimants – that finding was set aside. The judge’s decision was also challenged on the basis that one of the claimants had been excluded whilst the other gave evidence. The Court of Appeal held that there was not an absolute requirement that claimants had the opportunity to be present personally throughout the entirety of the hearing. It gave the example of a litigant who disrupts the hearing by unruly behaviour and may have to be excluded to allow progress to be made. The starting point is that claimants are entitled to be present throughout trial. Black L.J. said that she found it extremely difficult to contemplate there being any sufficient reason for taking excluding one claimant from hearing the evidence of the other in a case such as that of Da Costa. However she did not find that the claimant’s exclusion was automatically fatal to the whole trial. Both claimants were represented by the same counsel, no application was made at the end of cross examination to take instructions from the absent claimant and counsel for the claimant was unable to point to any part of the transcript where things would or might have been different had the claimant been in court during the second claimant’s evidence. The court therefore found that the trial had not been rendered unfair and therefore this ground of appeal failed. The normal incentive to seek a finding of fraud is that it leads into a finding of fundamental dishonesty and the disapplication of qualified one-way costs shifting. This case did not include a claim for personal injury and therefore QOCS did not apply. The defendant did not therefore need a finding of fraud to win or fundamental dishonesty to get its costs. Defendants may therefore want to discourage a judge from going further than he or she needs to in order to dismiss a case. Claimants will want to impress on a judge the requirement for “sufficient findings” and “sufficient reasoning to substantiate” any fraud finding. The cogency of the evidence required makes it difficult for defendants who harbour plenty of understandable suspicions but lack the hard evidence to get a finding of fraud or fundamental dishonesty. As to the finding about excluding claimants from hearing evidence of other claimants, the position is now clear in cases of this sort. What is not so clear is what stance a court can take about the exclusion of witnesses who are not claimants – that is a point which still needs to be argued.   *Black L.J. says that the driver was "untraced" but he was named as the First Defendant and one of the allegations was that he used the same address as the claimants. I assume therefore she was not using the word in its technical sense and meant that noone knew of his whereabouts. I am grateful to Steven Templeton for pointing out that it was not the case that Mr Sargaco was "untraced".

Clean air: a claim under Article 2?

In February 2013 nine-year-old Ella Kissi-Debrah from Hither Green in South London died after suffering a severe asthma attack. “Can the courts be used to establish that we have a human right to clean air?” asked Nick Robinson on the Today Programme this morning. A report by Royal College of Physicians has apparently linked 40,000 deaths to pollution each year.  A successful case against the government would arguably put the government under considerable pressure as well as resulting in justice for affected families. Ella’s mother and her lawyer were interviewed on the programme. Ella had very severe asthma. According to the Today Programme, nitrogen dioxide levels around their home on the South Circular are double the EU legal limit. Her lawyer, Jocelyn Cockburn, a partner at Hodge Jones & Allen, commented that the coroner had not looked into pollution as a cause of death. The immediate objective, she said, was to try and get a wider investigation into pollution and whether it contributed to Ella’s death. She is seeking to do this by bringing a claim against Lewisham Council and the Mayor of London. She said that they were considering whether or not a case could be brought against the UK government under Article 2 of the European Convention on Human Rights (the Right to Life) on the basis that the government knew that Ella was at immediate risk. There is clearly a long way to go in terms of establishing causation and a claim, but this will be one to keep a close eye on. The full interview can be heard on http://www.bbc.co.uk/programmes/b07dkk07#play

Daniel v St George's Healthcare NHS Trust & London Ambulance Service: a human rights cautionary tale?

  Daniel v St George’s Healthcare NHS Trust  and London Ambulance Service [2016] EWHC 23 (QB) Introduction Edward Bishop QC has successfully defended an NHS trust and the London Ambulance Service against claims under the Human Rights Act 1998 brought by the foster family of a man who died of a heart attack in Wandsworth Prison.  The judgment deals with the legal test for liability, causation and victim status.     The central allegation was that there was culpable delay in the attendance of paramedics caused by nursing error and an insufficiently flexible ambulance triage system.  The judge rejected both allegations on the facts and clarified the law on causation in cases of death in custody from natural causes.  She also dealt with “victim status” under the HRA, ruling that the deceased’s foster mother was entitled to bring a claim but his “foster brother” was not. Background James Best (“JB”) was a prisoner on remand at Her Majesty’s Prison (HMP) Wandsworth when he died from natural causes on 8 September 2011. He suffered a myocardial infarction (a heart attack), as a result of a ruptured plaque in the coronary artery, which caused cardiac arrest and death. He was only 37. He had no previous history of heart disease and it is likely that the plaque was ruptured by over-exertion in the prison gym. The First Defendant (“St George’s”) is a National Health Service (“NHS”) Trust responsible for the provision of primary health care within HMP Wandsworth. Doctors and nurses employed by the First Defendant in the Department of Primary Care at HMP Wandsworth tried unsuccessfully to save JB’s life on the day of his death. The Second Defendant (“the LAS”) is a NHS Trust responsible for the provision of ambulances within the London area. HMP Wandsworth is within its catchment area. On 8 September 2011, an emergency call for an ambulance for JB was made, but he was dead by the time the ambulance arrived. The central allegations were that the nurse who attended on JB in his cell failed to request an ambulance quickly enough, and further that there was unnecessary and unreasonable delay in the dispatch of an ambulance by the LAS. The Claimants had a close relationship with JB which began when the First Claimant fostered JB for 3 years when he was a teenager, between 1988 and 1991. The Second Claimant is the First Claimant’s biological son, and described JB as his foster brother. The Claimants have brought their claim for declarations and damages under the Human Rights Act 1998 (“HRA 1998”), alleging that the First and Second Defendants, as public authorities, acted in breach of Articles 2 and 3 of the European Convention on Human Rights (“ECHR”). Violation of Articles 2 and 3 Mrs Justice Lang set out the appropriate legal test to be applied when considering whether or not there had been a breach. She reiterated the guidance: “I remind myself that the test to be applied is whether the Defendants did “all that could reasonably be expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge” (Osman at [116]). In Rabone, Lord Dyson considered that an “immediate” risk was one which “present and continuing” (at [39]). He added, at [43]:   “The standard required for the performance of the operational duty is one of reasonableness. This brings in “consideration of the circumstances of the case, the ease or difficulty of taking precautions and the resources available”; per Lord Carswell In re Officer L [2007] 1 WLR 2135 , para 21.   The ECtHR and the domestic courts have emphasised that the operational duty must not be interpreted in a way “which imposes an impossible or disproportionate burden on the authorities” (Osman at [116])”   On causation, and having considered the evidence, the test was: “the legal test of causation is whether there was a failure to take reasonably available measures which could have had a “real prospect of altering the outcome”. Put another way, the Claimants have to establish that JB “lost a substantial chance of avoiding the outcome”.”   The court heard extensive evidence, not just from the actual persons involved in the immediate aftermath, but also from medical experts who gave evidence on the chances of survival following such a heart attack. Careful consideration was given to transcripts of the 999 call-outs, and the exact timing of those calls. The criteria and policy of the ambulance service was scrutinised.   Mrs Justice Lang was emphatic in her dismissal of the claims of breach. She did not consider that the “Claimants have succeeded in establishing, on the balance of probabilities, that, even if [the nurse at the prison] had called an ambulance earlier, or LAS had dispatched an ambulance sooner, that there would have been a “real prospect of altering the outcome” or that JB “lost a substantial chance of avoiding the outcome”.   As for the claims brought under Article 3, the Judge said: “The claim under Article 3 was unarguable, in my view. [the prison nurse] acted promptly, reasonably and professionally and did all she could to save JB’s life. There was no unreasonable delay in calling an ambulance. The LAS handled the emergency call in accordance with their procedures which were required to ensure that a limited resource of emergency vehicles and personnel were allocated fairly within the community according to priority need. ” It certainly did not amount to “inhuman and degrading treatment”.   Victim status   Both Claimants brought claims alleging that they were “indirect victims”. Mrs Justice Lang considered the law on victim status, and set out the relevant test:   “In my judgment, the likely approach of the ECtHR in determining the status of the Claimants in this case would be to consider all the facts and circumstances to assess: ·       1. the nature of the legal/family relationship between the Claimants and JB; ·       2. the nature of the personal ties between the Claimants and JB; ·       3. the extent to which the alleged violations of the Convention (1) affected them personally and (2) caused them to suffer; ·       4. involvement in the proceedings arising out of JB’s death.”   On applying that criteria, she was satisfied that the first Claimant was a indirect victim as she had been JB’s foster mother for three years, leading to a longstanding parent-child relationship. JB had no other family of his own, and shortly before his death referred to himself as the first Claimant’s “third son”. Not only this, but the first Claimant had clearly suffered from acute distress following JB’s demise, and had been extremely active in the aftermath of his death.   However, the second Claimant was found not be an indirect victim. The status of “foster brother” is not recognised in UK domestic law or in ECtHR case law. There can be no question that the second Claimant suffered hugely from the loss of a close friend; but this alone is not a sufficient basis on which to found a claim.   The claims were dismissed.

New law - fundamental dishonesty in PI claims

The government brought into force last week a new law preventing claimants from recovering damages for personal injury when they have been fundamentally dishonest, unless it would cause substantial injustice. In the case of Summers v Fairclough Homes Ltd  [2012] UKSC 26 the claimant was injured in an accident at work and claimed more than £800,000 from his employer. Surveillance revealed him to have grossly exaggerated the effect of his injuries. At trial he was found to have fraudulently misstated the extent of his claim but the judge declined to strike out his claim and awarded £88,716. The defendant appealed and the Supreme Court held that it had jurisdiction to strike out the claimant’s statement of case but that it would only be done in exceptional circumstances, not least as the judgment on liability amounted to a possession for the purposes of the ECHR. The claim was not struck out. Section 57 of the Criminal Justice and Courts Act 2015 looks as though it would have changed the outcome of Summers dramatically. Here are some of the ingredients and likely problems: ‘fundamental dishonesty’ - the defendant has to prove on the balance of probabilities that the claimant has been ‘fundamentally dishonest’  - a concept which the courts have been grappling with since its introduction in CPR Part 44.16(1) as an exception to the rules on qualified one way costs shifting. Considerable uncertainty remains as to the difference between ‘dishonesty’ and ‘fundamental dishonesty’. ‘primary claim or a related claim’ – the fundamental dishonesty must be ‘in relation to the primary claim or a related claim’. It will be interesting to see how far the courts will go in construing ‘a related claim’ which is defined at s.57(8) as “a claim for damages in respect of personal injury which is made (a) in connection with the same incident or series of incidents in connection with which the primary claim is made, and (b) by a person other than the person who made the primary claim.” ‘application by the defendant’ - the court cannot dismiss the claim under s.57 unless an application is made by the defendant for its dismissal. ‘substantial injustice’ – the court ‘must dismiss the primary claim’ unless satisfied the claimant would suffer ‘substantial injustice’ if it were dismissed. Again, it is not clear what the difference is between ‘injustice’ and ‘substantial injustice’. How is a judge to decide? Would the depriving a claimant of £88,716 amount to a substantial injustice? It is likely that the courts will want to give very careful thought to the needs of the injured claimant (care, economic etc) and consider how well they will be met in the event that the money is not paid over. What will happen to claims for gratuitous care which a claimant is supposed to hold on trust for the providers of that care? They may have nothing to do with the claimant’s dishonesty and yet might find themselves deprived of thousands of pounds for the hours they have given. I anticipate that a large body of case law will quickly grow up around this section. Recording damages – the court must record the amount of damages it would have awarded the claimant and then deduct them from the amount it would otherwise have awarded the defendant in costs. The dismissal of the claim under s.57 must be taken into account in a sentence handed down in any subsequent criminal proceedings S.57 only applies to claims issued after 13th April 2015. Mr Summers may well have been £88,716 poorer had this section been enacted prior to the issue of his proceedings. It will be interesting to see how often section 57 is pleaded and what the courts make of the concepts of ‘fundamental dishonesty’, ‘substantial injustice’ and ‘related claims’.

Personal Injury and the Party Manifestos

Is there anything in the parties' manifestos which might affect the field of personal injury? Reforms since 2010 include a new fixed costs regime, costs management/budgeting and greatly increased court fees. Civil liability has been removed for breaches of health and safety regulations. But what is being promised for the future? The Conservative Manifesto includes a pledge to reform human rights law. It would scrap the Human Rights Act and introduce a British Bill of Rights. The intention is that this will break the formal link between British Courts and the European Court of Human Rights making the Supreme Court the ultimate arbiter of human rights matters in the UK.  More is said in the section on the European Union: the Bill will remain faithful to the basic principles of human rights but “will reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of wider society.” The manifesto also pledges to continue “the £375 million modernisation of our courts system, reducing delay and frustration for the public.” A commitment is also made for an ongoing review of legal aid. The Labour Manifesto takes the opposite view on the Human Rights Act. It states that Labour would protect it and reform rather than walk away from the European Court of Human Rights. The manifesto is silent on what that reform would be. The manifesto also includes a pledge that access to legal representation would not be determined by personal wealth but would remain available to those who need it. The Liberal Democrat Manifesto states that the Liberal Democrats would protect the Human Rights Act and enshrine the UN Convention on the Rights of the Child in UK Law. It specifically states that the Liberal Democrats would take “appropriate action to comply with decisions of the UK courts and the European Court of Human Rights.” The Liberal Democrats have a commitment to introduce a Freedoms Act which would “cut back on the petty over-regulation of everyday life… permitting swimming in open bodies of water.” (Tomlinson v Congleton springs to mind…). They would “carry out an immediate review of civil Legal Aid… and court fees, in consultation with the judiciary…” They would “reverse any recent rises in up-front court fees that make justice unaffordable for many, and instead” spread the fee burden more fairly. They would also retain access to recoverable success fees and insurance premiums in asbestosis claims and where an individual is suing the police. There is also a pledge to support innovation like the provision of “civil justice online” and expansion of ADR. The UKIP Manifesto states that the burden of complying with EU laws on health and safety can be overwhelming for small firms. The manifesto has a commitment to repeal EU Regulations which stifle business growth. As to human rights, UKIP would remove the UK from the jurisdiction of the European Court of Human Rights and make the UK’s Supreme Court the final authority on matters of human rights. It would repeal the Human Rights Act and introduce a UK Bill of Rights which would complement the UN Declaration of Human Rights and “encapsulate all the human and civil rights that UK citizens have acquired under UK law since Magna Carta.” The Green Manifesto states it will “move towards a written constitution with a Bill of Rights” it also has a commitment to keeping the Human Rights Act and retaining the UK’s membership of the ECHR. There is a pledge to “restore the cuts to Legal Aid, costing around £700 million a year” although it is not clear whether this has anything to do with personal injury. It is interesting that none of the political parties have a commitment to reinstate civil liability for breach of health and safety regulations made under the Health and Safety at Work Act 1974.   Trivia Comparative lengths of the manifestos: Conservatives:                 84 pages Labour:                            86 pages Liberal Democrats:          158 pages UKIP:                              76 pages Green:                              84 pages   Commitment requiring more explanation: “Ban high-frequency Mosquito devices which discriminate against young people.” (Liberal Democrats)

Records of Inquest: the conclusion is... use your boxes correctly and keep it succinct

For those of you practising in coronial law, the Chief Coroner's Guidance No. 17 was published on 30 January 2015. It contains some useful and succinct guidance on short form conclusions and narrative conclusions, including: how and when they should be used (as alternatives or together); the correct approach to the three stages of the conclusion (i.e. fact finding, box 3 of the Record of Inquest and box 4 of the Record of Inquest); standards of proof; and a summary of the 'ingredients' of the common short form conclusions. The guidance is by no means a full and comprehensive review of the law, but it certainly provides clarity and is likely to be a useful reference when dealing with submissions on conclusions.   The guidance can be downloaded at http://judiciary.go.uk/related-offices-and-bodies/office-chief-coroner/guidance-law-sheets/coroners-guidance/ 

Compensating an injured foetus?

In what circumstances is an unborn child entitled to compensation for injuries caused by a mother? That is the question facing the Court of Appeal today. A mother drank heavily during pregnancy despite warnings from social workers and antenatal medical staff that it risked harming her unborn baby. The baby was born with foetal alcohol syndrome and has since suffered from developmental problems. The mother is no longer in contact with the child who is being cared for by a local authority. That authority brought a successful claim before the Criminal Injuries Compensation Authority on the grounds that the mother’s behaviour constituted the crime of poisoning under section 23 of the Offences Against the Person Act 1861. However the decision was overturned in the Upper Administrative Tribunal. The media reported that the Upper Tribunal’s decision was made on the grounds that an unborn child is not a person in law and therefore no criminal offence could have been committed. If the report is correct, this is a curious conclusion as a criminal offence can be committed against a foetus under the Infant Life (Preservation) Act 1929. It is easy to forget that the Abortion Act 1967 makes an exception to that law on child destruction where the provisions of the Act are complied with. One wonders whether the perhaps unspoken dilemma for the Upper Tribunal was that its decisions might beg the following question: if a criminal offence can be committed against a foetus and if the child is entitled to be compensated for the injuries it has suffered, how is it that the law appears to make it so easy to take the life of an unborn baby under the Abortion Act 1967? Did it fear that it might upset the current uneasy status quo?

Coroners, Consistency and Change

  Harold Macmillan is famously said to have observed that:   “There are three bodies no sensible man directly challenges: the Roman Catholic Church, the Brigade of Guards and the National Union of Mineworkers”.   To this list should perhaps be added the Royal British Legion.   The Coroners and Justice Act (CJA) 2009 contained legislation to reform the process of death investigation and certification in England and Wales to deal with the shortcomings of single doctor death certification identified in the Shipman Inquiries. It also created the new office of Chief Coroner (CC).     In October 2010, Jonathan Djanogly, then Parliamentary Under-Secretary of State for Justice announced that some of the provisions of the CJA 2009 would not be implemented. These included the office of CC.   Following widespread public criticism, including a message to all members of parliament from the Royal British Legion which appeared prominently in a number of national newspapers, the government relented.   Kenneth Clarke, then the Justice Secretary, announced that he had “listened and reflected on the concerns” and the office of CC would be created after all.   In May 2012 the Lord Chief Justice in consultation with the Lord Chancellor appointed Judge Peter Thornton Q.C. as the first CC of England and Wales.   On 1 July 2014 the CC presented to the Lord Chancellor his first annual report which can be downloaded free of charge from the government’s website:   https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/330652/chief-coroner-annual-report-july-2014.pdf   The report covers the period from 25 July 2013 to 30 June 2014 and contains information which will be of interest and help to all lawyers doing coronial work. In particular the report includes sections on:   The training of and the guidance now provided to coroners. The appointment of coroners and the merging of certain coroner areas. Investigation and inquest processes. Delays in investigations. Prevention of future death reports.   As the report recognises much work still needs to be done. But the CC can take credit for the fact that more hearings are now held in public, all hearings are recorded, most inquests are or soon will be held within six months and there is now better and earlier disclosure to interested parties.   Currently in England and Wales there are 99 separate coroner areas. We await with interest next year’s report to see if the CC’s stated intention to reduce these to about 75 areas, each being an appropriate size in terms of numbers of deaths reported geographically and special work - prisons, major hospitals, mental health institutions and airports – will result in further improvements to the coronial service overall.

CA suggest no need for causation in HRA claims?

The Court of Appeal has given judgment in Sarjantson v The Chief Constable of Humberside Police [2013] EWCA Civ 1252, an important and interesting decision on the operation of police officers’ duties to protect citizens under the Human Rights Act 1998 (“HRA”).   Mr Sarjantson (“C”) was attacked and injured by a group of young men armed with baseball bats and bricks in the early hours of 9th September 2006.  Several members of the public made 999 calls to the police, describing the group as violent and dangerous and reporting that they were attacking various people.  The first time that C’s name was mentioned - as a victim of the attacks - was about seven minutes after the first 999 call.  The police (“D”) arrived, but only after a delay of some eleven minutes; this delay was later criticised in an internal police investigation.  The assailants were convicted of assault and violent disorder and sentenced to lengthy terms of imprisonment.   C alleged that D had violated his article 2 and/or 3 rights under the European Convention on Human Rights (“ECHR”), by failing to attend the scene of the attacks as quickly as they should. D responded by seeking to strike the claim out, arguing (a) that C was not – adopting the words of used in Osman v United Kingdom (2000) 29 EHRR 245 - an “identified individual or individuals” and the duty to protect under articles 2/3 therefore did not arise and/or (b) that even if D had attended as soon as possible, the assault on C would not have been prevented, as it occurred before D could reasonably have been present at the scene.   The circuit judge struck the claim out.  The CA has re-instated it, holding (a) that D’s duty to protect citizens under the HRA is not limited to identified individuals or groups but can extend to the public at large and (b) causation is not a necessary ingredient of a claim under the HRA, so that even if D’s earlier attendance would have made no difference C can still succeed.  As Lord Dyson MR put it: “A finding that a response would have made no difference may mean that there is no right to damages.  But it is not relevant to liability”.   The case seems to mark a significant extension of the scope of the HRA to provide redress for those injured by the criminal acts of third parties.  The fact that a duty to protect may arise under the HRA to the public at large may, for example, mean that the claimant in a case such as Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 (the final victim of the “Yorkshire Ripper”), would now have a claim under the HRA (whereas a common law claim would fail on proximity).   And on causation the case seems to sit uneasily with Lord Brown’s remarks in Van Colle v Chief Constable of Hampshire Police [2009] 1 AC 225, in which His Lordship indicated that proving causation – albeit on the basis of the loss of a “substantial chance” of making a difference – was needed to establish a cause of action under the HRA (see paragraph 138).