the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Vicarious liability: extension, extension, extension

 “The law of vicarious liability is on the move” are the opening words to the opinion of Lord Reed in Cox v Ministry of Justice [2016] UKSC 10 (quoting Lord Phillips in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56). The Supreme Court has handed down two judgments in the field of vicarious liability (Cox and Mohamud v WM Morrison [2016] UKSC 11) which continue to extend its scope. The five policy reasons for the vicarious liability relationship identified in the Christian Brothers case have effectively been narrowed to three in Cox - a case in which the Supreme Court found that the prison service was vicariously liable for the negligence of a prisoner working in a prison kitchen. In Mohamud the Supreme Court stuck to the articulation of the law in Lister v Hesley Hall [2002] 1 AC 215 but elaborated saying that the court has to consider (1) what functions or “field of activities” have been entrusted by the employer to the employee (a question to be approached “broadly”) and (2) whether there was a sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable. That broad approach meant that the employer of an attendant at a petrol station was vicariously liable for the attendant’s violent attack on the claimant on the petrol station forecourt. For more detailed analysis of these decisions see 1 Chancery Lane Personal Injury Briefing March 2016. Photograph courtesy of Freefoto.com                                                                 http://www.freefoto.com/thanks.jsp

Expert evidence in road traffic cases

Is the evidence of an expert in cycling safety reasonably required in a personal injury claim arising out of an accident which the claimant alleges was caused by the highway authority’s breach of duty (in respect of maintenance, layout etc)? At a Case Management conference in the case of Allen v Cornwall Council [2015] EWHC 1461 the District Judge gave the claimant permission to rely on such evidence to deal with allegations of contributory negligence made by the defendant. He refused to grant the defendant permission to rely on its own evidence.  In the case of Liddell v Middleton (7th July 1995, Unreported), the Court of Appeal gave guidance as to the admissibility of expert evidence in road traffic claims. Stuart-Smith L.J. said that in such cases the function of the expert is to furnish the judge with the necessary scientific criteria and assistance based upon his special skill and experience not possessed by ordinary laymen to enable the judge to interpret the factual evidence of the marks on the road, the damage, or whatever it may be. What he is not entitled to do is reach conclusions on facts or give his opinion on whether there was a breach of duty. In Liddell the Court of Appeal found the ‘expert’ had overstepped the mark and given evidence which was entirely irrelevant and inadmissible. The defendant in Allen appealed the District Judge’s order and the case was heard by Green J. He would not interfere with what was a case management decision of the district judge. Green J found that the district judge was addressing a threshold issue as to whether the evidence should be admitted for the purpose of case management but, he had made it clear it was without prejudice to any more mature and considered view which a trial judge might take. He had not given the defendant permission to have its own report because it might see the expert evidence of the claimant and decide that it wanted to abandon allegations of contributory negligence altogether. Green J held that the district judge had not seen the expert’s report at the time he made his decision and therefore he was not in a position to assess its content; he took account of the fact his decision would not bind the trial judge. Green J thought that the facts of the case were somewhat unusual (as it was not a case of a collision with a pedestrian or another vehicle but one involving the condition and layout of the highway). He did not rule on the admissibility of the evidence but thought the judge had not acted outside the generous ambit afforded to a judge exercising his case management powers. Green J acknowledged the ‘practical force’ of the defendant’s complaint that the judge should have required the report to be prepared and produced before granting permission. Indeed the defendant’s suggestion that this would have been the appropriate course was commended as ‘sensible’. It is notably the course commended by the Court of Appeal in Casey v Cartwright in the context of low velocity road traffic accident litigation. But Green J did not think the judge had erred in not adopting this approach. This case raises an interesting question as to when exactly the threshold is reached for the granting of permission for expert evidence at the case management stage: when is expert evidence ‘reasonably required’ (CPR 35.1)? In Casey the question was whether, once the judge had seen the expert evidence, the issue itself had a ‘real prospect of success’. Liddell v Middleton and the decision in Allen tend to suggest that at the case management stage the question is no more than whether it is arguable that the evidence is admissible - the final decision rests with the trial judge. The questions the expert was to examine included where a cyclist should be positioned on a carriageway and whether he was cycling too fast or should have dismounted where visibility was poor. Do such questions require expert evidence? If so, why not in cases involving motorcycling, lorry driving and other modes of transport which may be outside the experience of a trial judge? It will be interesting to see what the trial judge decides. In the meantime it is striking that, at the appeal, Green J gave the defendant permission to rely on its own expert evidence before it had seen the evidence of the claimant. Draw what conclusions you will… (Ian Miller represented the defendant on the appeal)

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?

Handle with Care!

  “Handle with Care” will be best known to fans of the Traveling Wilburys as the first track on the group’s 1988 album, “Traveling Wilburys Vol.1”. It is also the key message of the fifth annual “State of Care” report by the Care Quality Commission (CQC) issued on 17 October 2014.   https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/364440/CQC_StateOfSocial_2014.pdf   The report which looks at 40,000 services and provides a useful, if rather worrying, insight into the state of care in England concludes that the variation in the overall quality of care is unacceptably wide.   The report covers adult social care, hospitals, mental health care and community health services and primary medical services and integrated care.   The CQC found some instances of “outstanding” care and it also rated many other services as “good”. However, it also found many services that are “inadequate” or “require improvement”.   As a result of the latter, people are being failed by the “numerous” hospitals, care homes and GP practices which are unable to meet the standards achieved by other services.   The CQC found many instances where the particular problem has existed for years. However, the CQC makes clear this is not an excuse. In fact it is “quite the opposite”.   More worryingly, the CQC concludes that too many service providers have still not got to grips with the “basics of safety”.   The CQC is now “calling time on this unacceptable lottery”.   The challenge to every health and care provider is to deliver the “high standards of care that each person has a right to expect”.   Or, as Roy Orbison and Bob Dylan sang in the bridge to the 1988 track,   “Won't you show me that you really care?”

Delegation, delegation, delegation, that's what you need: Woodland v Essex CC in the Supreme Court

The Supreme Court has today (October 23rd 2013) handed down its unanimous decision in Woodland v Essex CC [2013] UKSC 66, reversing the decisions of the lower courts, and holding for the first time that a school (or, in the case of a maintained school, a local education authority) owes a non-delegable duty to the children in its care. The case arose from brain injury suffered by the claimant, who when 10 years old attended a swimming lesson organised by her school.  The LEA had contracted with a provider of swimming lessons, who employed tutors and lifeguards.  The claimant got into difficulties and was found "hanging vertically in the water".  Sadly, despite resuscitation, she suffered hypoxic brain damage. The appeal arose from an application by the LEA to strike out an allegation in the Particulars of Claim that it owed a "non-delegable duty of care" to the claimant.  The application succeeded before Langstaff J [2011] EWHC 2631 (QB), [2012] ELR 76 and, by a majority, the Court of Appeal [2012] EWCA 239, [2013] 3 WLR 853 upheld the judge's decision.  Lord Sumption, giving the principle judgment, lamented that the application had been made given that the LEA would still have faced an allegation that insufficient care had been taken in the selection of the contractor: at [2]. Lord Sumption distinguished between two categories of case in which a defendant has been found to owe a "non-delegable" duty of care, in relation to which he is not able to rely on entrusting performance of the action in question to an apparently competent independent contractor.  One was the amorphous category of cases relating to "extra-hazardous" operations: at [6].  That was not relevant to the case, although he suggested that it was "ripe for re-examination".  The second was a situation which arose from a special relationship, we he defined in the following terms: at [7]..... It comprises cases where the common law imposes a duty upon the defendant which has three critical characteristics. First, it arises not from the negligent character of the act itself but because of an antecedent relationship between the defendant and the claimant. Second, the duty is a positive or affirmative duty to protect a particular class of persons against a particular class of risks, and not simply a duty to refrain from acting in a way that foreseeably causes injury. Third, the duty is by virtue of that relationship personal to the defendant. The work required to perform such a duty may well be delegable, and usually is. But the duty itself remains the defendant's. Its delegation makes no difference to his legal responsibility for the proper performance of a duty which is in law his own. In these cases, the defendant is assuming a liability analogous to that assumed by a person who contracts to do work carefully. .... The principle area in which a duty of this kind has arisen is employment: at [13].  There are also dicta tending to confirm that it applies to hospitals and similar institutions: at [14-16].  After reviewing Australian authority at [17-21] he reached the conclusion that it was appropriate to recognise the basis of a general "non-delegable" duty in cases "characterised by the following defining features" at [23]. (1) The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes.(2) There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren.(3) The claimant has no control over how the defendant chooses to perform those obligations, i.e. whether personally or through employees or through third parties.(4) The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant's custody or care of the claimant and the element of control that goes with it.(5) The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him. The degree of risk involved in the activity and the lack of control of the defendant over the environment in which injury occurs were, by contrast, not relevant: at [21], [23]. Lord Sumption, and Lady Hale who delivered the only other judgment agreeing with him, recognised that the decision involves a significant extension of the scope of a duty of care owed by schools or LEAs.  Their main reasons for doing so were as follows: - The vulnerability of children and the control given over them by schools and their staff makes it reasonable for the school to be answerable for the default of those to whom the school confers authority in respect of certain functions: at [25(1)]. - Parents were not in a position to do other than rely on the school in relation to how it made its arrangements for the education of children: at [25(2)]. - Although LEAs were increasingly outsourcing their functions, historically services such as those provided by the contractor would have been provided by employed staff, so the liability of LEAs would not be significantly increased: at [25(4)], [40]. - If the "non-delegable" duty did not exist, odd distinctions would exist between private schools (who would owe a non-delegable duty under contract) and state schools that did or did not contract out functions such as this: at [25(5)], [29-32]. The other judges agreed with both judgments. The appropriateness of outsourcing by public authorities has been subject to extensive debate on economic, social and political grounds.  It is hard to deny the strength of the policy reasons given by the court for recognising the duty owed to pupils as "non-delegable".  What may be of significant concern, however, to public authorities (or rather their insurers) is the fact that the scope of their insureds' duties is significantly expanded by this decision.  It may well be that extensive outsourcing of peripheral aspects of schooling is a relatively recent phenomenon, but it is to be presumed that when setting premiums, insurers to public authorities give careful consideration to the legal extent of the liabilities of those authorities.  It would seem entirely possible that premiums sought will have been lower than they would have been (and will be) in light of this decision. Experience also suggests that contractual arrangements made by local authorities with contractors of this nature are often not the subject of detailed consideration and may be poorly evidenced, thus hampering attempts to obtain indemnities from contractors.  Those responsible for negotiating and drafting contracts with contractors will need to pay additional attention to resolving the issue of who meets liabilities for those injured as a result of a contractor's work, and ensuring that agreements are properly recorded and are not then lost in a morass of paper or destroyed once the next contract has been made.  Greater emphasis should also be placed in verifying that contractors are properly insured to meet potential liabilities arising from their activities. Finally, in case insurance underwriters are considering booking appointments with their cardiologists as a result of the foregoing content of this article, it is important to emphasise the limitations of this newly-recognised duty.  The main one is that the duty only applies to a situation "which is an integral part of the positive duty which he has assumed towards the claimant".  In the case of schools, that means keeping children safe while they are being educated.  The difficulty, as ever, will be determining the scope of the assumed duty.  Lord Sumption provided some important guidance at [25(3)] in the following terms: .... They are liable for the negligence of independent contractors only if and so far as the latter are performing functions which the school has assumed for itself a duty to perform, generally in school hours and on school premises (or at other times or places where the school may carry out its educational functions). In the absence of negligence of their own, for example in the selection of contractors, they will not be liable for the negligence of independent contractors where on analysis their own duty is not to perform the relevant function but only to arrange for its performance. They will not be liable for the defaults of independent contractors providing extra-curricular activities outside school hours, such as school trips in the holidays. Nor will they be liable for the negligence of those to whom no control over the child has been delegated, such as bus drivers or the theatres, zoos or museums to which children may be taken by school staff in school hours .... Lady Hale also gave some guidance at [39]: Taking care to keep the children safe is an essential part of any swimming lesson and of the responsibility which the school undertakes towards its pupils. That is what the life-guard is for. These features clearly would not apply to the negligent ice-cream vendor or zoo-keeper. They would not normally apply to the bus driver but they might do so if the school had undertaken to provide transport and placed the pupils in his charge rather than that of a teacher. The boundaries of what the .... school has undertaken to provide may not always be as clear cut as in this case .... but will have to be worked out on a case by case basis as they arise. There can be no doubt that this decision is far from the final word on this topic. 

Punching inanimate objects and common sense

In 2010 Lewis Pierce was nine and a half years old and one day was playing at school with his younger brother George; both boys went over to a water fountain and George sprayed Lewis with water. George, seemingly not seeing the funny side then attempted to punch his brother, who being a sensible lad moved out of the way. Lewis missed George and ended up hitting the water fountain, cutting his right thumb. Consequently proceedings were started with the local authority as the Defendant, it being alleged that the water fountain had a sharp underside which amounted to a real and foreseeable risk. The judge at first instance agreed with this holding that there was a real risk that children might skylark around and could easily trip and cut their heads against the underside of the fountain (you’ll note that this wasn’t what happened to Lewis!). As such, Lewis was awarded £3,215.16. The Defendant appealed and the Court of Appeal (MR, McFarlane LJ and Sharp LJ) has today handed down their decision (West Sussex CC v Master Lewis Pierce (A child by his litigation friend Mrs Annette Pierce) [2013] EWCA Civ 1230. The Court allowed the appeal with Lady Justice Sharp noting that the trial judge had failed to identify and then answer the correct legal question. The judge failed to mention the Occupiers’ Liability Act 1957 and proceeded on the flawed basis that “once he had determined that the underside of the water fountain was sharp and there was a possibility that an accident might occur, the defendants were liable for what happened unless they had conducted what the judge described as a properly considered risk assessment.” Sharp LJ helpfully set out the correct question in such cases: “The question which has to be addressed … is whether as a matter of objective fact, visitors to the School were reasonably safe in using the premises, including for this purpose, the water fountain, bearing in mind of course that children do not behave like adults, and are inclined to lark around.” The answer to the question in this case was “yes”, the water fountain was reasonably safe (or more accurately that the evidence did not establish that it was not safe). The Court did not consider the underside of the fountain to be sharp (having had the opportunity to look at it) but even if it were sharp is was said that “by no stretch of the imagination could it be said to constitute a danger to children. Certainly the edge could be have been bevelled, or padded, and had that been done the claimant might not have injured his thumb. But to say that misses the point it seems to me. The School was not under a duty to safeguard children against harm under all circumstances … as a matter of generality, the School was no more obliged as an occupier to take such steps in respect of the water fountain than it would be in respect of any of the other numerous edges … against which children might accidentally injure themselves …”. In conclusion Sharp LJ said “The law would part company with common sense if that were the case, and I do not consider that it does so”.

Never say never again... "Never events" and NHS Performance

Most people don't know that the NHS has a list of "never events", being a list of preventable events that should never happen.  The October 2012 Never Events Policy Framework defines never events as "serious, largely preventable patient safety incidents that should not occur if the available preventative measures have been implemented by healthcare providers".  The Framework contains a list of 25 never events.  These range from wrong site surgery, retained foreign objects post surgery and misidentification of patients to entrapment in bed rails, misplaced naso or oro-gastric tubes and maternal death due to post partum haemorrhage following elective caesarian section.   There has been coverage in the news this week following the disclosure that there have been 750 such incidents reported in the NHS in the last four years.  The BBC website has produced an interactive table letting you explore the reported incidents by Trust: http://www.bbc.co.uk/news/health-22466496 What is more interesting in many ways is the breakdown of the number of incidents by "event".  The October 2012 Framework makes very interesting reading, containing a table of the 2011/12 results.  Of the 326 incidents for that year (which seems remarkably high considering the overall statistic for four years), the overwhelmingly common category was retained foreign objects post operation, with 161 reported incidents.  Wrong site surgery followed with 70 cases, then 41 cases of wrong implant / prosthesis.   https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/127087/never-events-policy-framework-update-to-policy.pdf.pdf  

Personal responsibility, unfortunate accidents and the liability of occupiers

Criminal lawyers are often asked how they can bring themselves to defend people who they know are guilty.  Actually, I am asked that not infrequently too...  But the more common dinner party accusation aimed at civil common law lawyers is: "Pft!  Nanny state!  People can sue for anything nowadays!  Don't people have to take some responsibility for themselves?"  I have two responses to this.  My usual one is to disappear behind my glass of wine before changing the subject.  The other is to say that yes, people bring some ridiculous claims, but it doesn't necessarily mean they win.  The newspaper reading nation has been shocked by publicity about some of the claims brought by police officers injured in the course of their duties that have been pursued.  I don't know any lawyers in our line of business who have.  One has the impression that the Court of Appeal were perhaps a little vexed by the case of Tacagni v Cornwall County Council and ors.  Judgment was handed down yesterday.  Ms Tacagni sued various parties.  Her claim was dealt with under the Occupiers Liability Act 1957.  After consuming eight drinks over a "long" evening Ms Tacagni was walking home in the dark with her partner.  They had no torch and she was wearing uncomfortable shoes.  The pair walked along a raised pathway that ran approximately two metres above and alongside a road until they decided that it was too dark and turned back.  Ms Tacagni's partner left her to go and call a taxi.  Ms Tacagni set off on her own, using a fence to guide her along the path. Following the line of the fence Ms Tacagni left the path, crossed 4.8 metres of grass and fell off the edge of the raised section onto the road below. The fence had been erected around an area of the pathway's retaining wall which had collapsed in 2001. The Court at first instance heard some evidence from the Defendant about concerns one of its employees had had about whether the fence was sufficient to protect cyclists and children.  The judge was obviously swayed by this criticism and found for the claimant, with a two thirds deduction for contributory negligence.  The Court of Appeal allowed the local authority's appeal and dismissed Ms Tacagni's claim.  Their lordships concluded that the evidence as a whole did not warrant the judge's finding that the local authority had unreasonably failed to guard against the risk of accident that in fact befell Ms Tacagni. It was hard to envisage that a person would be using the fence as a guide and that it would not have been obvious to them that they were departing from the path and crossing a significant portion of the grass. Accordingly, the evidence did not warrant the conclusion that the local authority had breached its common duty of care.  The judge had left out a material factor in his evaluation: the degree of care that was to be expected of an ordinary visitor under s.2(3) of the Act. So next time you find yourself at a dinner party being harangued about the state of the law and the fact that people are not expected to take care for themselves you can disappear behind your glass of wine secure in the knowledge that, for the purposes of the Occupiers Liability Act 1957 at least, from time to time the courts conclude that yes they do.   Image: © Bellemedia | <a href="http://www.dreamstime.com/">Dreamstime Stock Photos</a> & <a href="http://www.stockfreeimages.com/">Stock Free Images</a>